Cantrell v. Baca et al
Filing
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ORDER - This action is dismissed with prejudice based on Plaintiff's failure to file an amended complaint in compliance with this Court's November 19, 2020 Order (ECF No. 6 ) and for failure to state a claim. Plaintiff's applic ation to proceed in forma pauperis (ECF No. 1 ) is GRANTED. NDOC shall pay Clerk $350 filing fee from inmate account. Clerk shall SEND a copy of this order to Finance and to NDOC Inmate Services (Email (NEF) to Finance; copy mailed to NDOC on 1/6/2021). Clerk is further directed to enter judgment accordingly and to close this case. Signed by Chief Judge Miranda M. Du on 1/6/2021. (Copies have been distributed pursuant to the NEF - AB)
Case 3:19-cv-00698-MMD-CLB Document 8 Filed 01/06/21 Page 1 of 3
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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HERMAN R. CANTRELL,
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Plaintiff,
ORDER
v.
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Case No. 3:19-cv-00698-MMD-CLB
ISIDRO BACA, et al.,
Defendants.
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This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. §
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1983 by a state prisoner. (ECF No. 1-1 (“Complaint”).) On November 19, 2020, the Court
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issued an order dismissing the Complaint with leave to amend and directed Plaintiff
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Herman Cantrell to file an amended complaint within 30 days. (ECF No. 6 at 10.) The 30-
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day period has now expired, and Plaintiff has not filed an amended complaint or otherwise
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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 L.A., 782 F.2d 829, 831 (9th Cir. 1986).
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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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action, failure to obey a court order, or failure to comply with local rules. See Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for noncompliance with local
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rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (affirming dismissal for
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failure to comply with an order requiring amendment of complaint); Carey v. King, 856
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F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply with local rule
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requiring pro se plaintiffs to keep court apprised of address); Malone v. United States
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Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure
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Case 3:19-cv-00698-MMD-CLB Document 8 Filed 01/06/21 Page 2 of 3
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to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
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(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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W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition
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of cases on their merits—is greatly outweighed by the factors in favor of dismissal
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discussed herein. Finally, a court’s warning to a party that his or her failure to obey a
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court’s order will result in dismissal satisfies the “consideration of alternatives”
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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d
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at 1424. The Court’s order requiring Plaintiff to file an amended complaint within 30 days
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expressly stated: “It is further ordered that, if Plaintiff fails to file an amended complaint
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curing the deficiencies of Plaintiff’s Eighth Amendment failure to protect claim and
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Fourteenth Amendment due process administrative segregation claim, this action will be
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dismissed with prejudice for failure to state a claim.” (ECF No. 6 at 10.) Thus, Plaintiff had
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adequate warning that dismissal would result from Plaintiff’s noncompliance with the
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Court’s order to file an amended complaint within 30 days.
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Case 3:19-cv-00698-MMD-CLB Document 8 Filed 01/06/21 Page 3 of 3
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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 November
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19, 2020 order and for failure to state a claim.
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It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF
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No. 1) is granted. Plaintiff will not be required to pay an initial installment of the filing fee.
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Even though this action is dismissed, the full filing fee must still be paid pursuant to 28
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U.S.C. § 1915(b)(2).
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It is further ordered that under 28 U.S.C. § 1915, as amended by the Prison
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Litigation Reform Act, the Nevada Department of Corrections will forward payments from
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the account of Herman R. Cantrell, #81065, to the Clerk of Court of the United States
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District Court, District of Nevada, 20% of the preceding month's deposits (in months that
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the account exceeds $10.00) until the full $350 filing fee has been paid for this action.
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The Clerk of Court is directed to send a copy of this order to the Finance Division of the
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Clerk’s Office. The Clerk of Court is further directed to send a copy of this order to the
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attention of Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box
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7011, Carson City, NV 89702.
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The Clerk of Court is further directed to enter judgment accordingly and to close
this case.
DATED THIS 6th Day of January 2021.
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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
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