Whitted v. Rojas

Filing 14

ORDERED that this action is dismissed without prejudice based on Whitted's failure to file an amended complaint in compliance with my order (ECF No. 11 ). Whitted's IFP application (ECF No. 10 ) is denied as moot. Clerk shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 9/7/2021. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:20-cv-00633-APG-CLB Document 14 Filed 09/07/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
RACHEL MARIE WHITTED,
v.

Case No. 3:20-cv-00633-APG-CLB
Plaintiff,

ORDER

ROJAS,
Defendant.

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This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 by

10 Rachel Marie Whitted. ECF No. 1-1. On July 26, 2021, I dismissed the complaint without
11 prejudice and with leave to amend and directed Whitted to file an amended complaint by August
12 31, 2021. ECF No. 11 at 8. That deadline has passed and Whitted has not filed an amended
13 complaint or otherwise responded to my order.
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District courts have the inherent power to control their dockets and “[i]n the exercise of

15 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.
16 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may
17 dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to
18 obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 5319 54 (9th Cir. 1995) (affirming dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
20 963 F.2d 1258, 1260-61 (9th Cir. 1992) (affirming dismissal for failure to comply with an order
21 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
22 (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court
23 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming

Case 3:20-cv-00633-APG-CLB Document 14 Filed 09/07/21 Page 2 of 3

1 dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424
2 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with local
3 rules).
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In determining whether to dismiss an action for such reasons, the court must consider

5 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s
6 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
7 favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.
8 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;
9 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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Here, the first two factors (the public’s interest in expeditiously resolving this litigation

11 and my interest in managing the docket) weigh in favor of dismissal. The third factor (risk of
12 prejudice to the defendants) also weighs in favor of dismissal because a presumption of injury
13 arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or
14 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth
15 factor (public policy favoring disposition of cases on their merits) is greatly outweighed by the
16 factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that his
17 failure to obey the court’s order will result in dismissal satisfies the “consideration of
18 alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson,
19 779 F.2d at 1424.
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My order expressly stated that “if Whitted fails to file an amended complaint curing the

21 deficiencies outlined in this order this action will be dismissed without prejudice.” ECF No. 11 at
22 8. Thus, Whitted had adequate warning that dismissal would result from his noncompliance with
23 my order.

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Case 3:20-cv-00633-APG-CLB Document 14 Filed 09/07/21 Page 3 of 3

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I therefore order that this action is dismissed without prejudice based on Whitted’s failure

2 to file an amended complaint in compliance with my order.
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I further order that Whitted’s application to proceed in forma pauperis (ECF No. 10) is

4 denied as moot.
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I further ordered the Clerk of Court to enter judgment accordingly.

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DATED THIS 7th day of September 2021.

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UNITED STATES DISTRICT JUDGE

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