Fast Horse v. State of Nevada et al

Filing 13

ORDER - This action is dismissed with prejudice based on Plaintiff's failure to file an amended complaint in compliance with this Court's April 5, 2019 order (ECF No. 10 ). The motion to proceed in forma pauperis (ECF No. 4 ) is denied as moot. The Clerk of Court is directed to enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 5/15/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LAVERN C. FAST HORSE,

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Case No. 3:18-cv-00251-MMD-CBC
Plaintiff,

ORDER

v.
JAMES DZURENDA, et al.,
Defendants.

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This is a pro se civil rights case filed pursuant to 42 U.S.C. § 1983 by a state

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prisoner. On April 5, 2019, the Court issued an order dismissing the Complaint with leave

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to amend the ex post facto claim, and the Court directed Plaintiff to file an amended

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complaint within 30 days. (ECF No. 10 at 9). The 30-day period has now expired, and

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Plaintiff has not filed an amended complaint or otherwise responded to the Court’s order.

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District courts have the inherent power to control their dockets and “[i]n the

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831

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(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure

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to prosecute an action, failure to obey a court order, or failure to comply with local rules.

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See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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(affirming dismissal for failure to comply with an order requiring amendment of complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to

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comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for

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failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.

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1986) (affirming dismissal for lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.

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See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at

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130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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Here, the Court finds that the first two factors, the public’s interest in expeditiously

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resolving this litigation, and the Court’s interest in managing the docket, weigh in favor of

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dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring

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disposition of cases on their merits—is greatly outweighed by the factors weighing in favor

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of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey

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the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. See Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order requiring Plaintiff to file an amended complaint within 30

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days expressly stated: “It is further ordered that, if Plaintiff fails to timely file an amended

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complaint curing the deficiencies outlined in this order, this action will be dismissed with

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prejudice for failure to state a claim.” (ECF No. 10 at 9.) Thus, Plaintiff had adequate

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warning that dismissal would result from his noncompliance with the Court’s order to file

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an amended complaint within 30 days.

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It is therefore ordered that this action is dismissed with prejudice based on

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Plaintiff’s failure to file an amended complaint in compliance with this Court’s April 5, 2019

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order.

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It is further ordered that the motion to proceed in forma pauperis (ECF No. 4) is

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denied as moot.

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The Clerk of Court is directed to enter judgment accordingly and close this case.

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DATED THIS 15th day of May 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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