Whitted v. Northern Nevada Department of Corrections et al

Filing 9

ORDER - This action is dismissed without prejudice based on Plaintiff's failure to file another fully complete application to proceed in forma pauperis or pay the full $402 filing fee in compliance with this Court's orde r dated December 7, 2020 (ECF No. 3 ). All pending motions (ECF Nos. 4 , 7 , 8 ) are denied as moot. Clerk is directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. Signed by Chief Judge Miranda M. Du on 2/16/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:20-cv-00672-MMD-CLB Document 9 Filed 02/16/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RACHEL MARIE WHITTED,

Case No. 3:20-cv-00672-MMD-CLB
Plaintiff,

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ORDER

v.
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NORTHERN NEVADA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.

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This action began when Rachel Marie Whitted, who is incarcerated at the Northern

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Nevada Correctional Center (“NNCC”) filed a pro se civil rights complaint under 42 U.S.C.

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§ 1983. On December 7, 2020, the Court issued an order denying the Plaintiff’s

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application to proceed in forma pauperis, without prejudice, because the application was

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incomplete. (ECF No. 3 at 2.) The Court ordered Plaintiff to file a fully complete application

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to proceed in forma pauperis or pay the full filing fee of $402 on or before February 2,

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2021. (Id. at 2-3.) The February 2, 2021 deadline has now expired, and Plaintiff has not

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filed another fully complete application to proceed in forma pauperis or paid the full $402

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filing fee.

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The Court notes that on December 11, 2020, Plaintiff filed another incomplete

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application (ECF No. 4) which was missing Plaintiff’s signature on page three and a

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signature by prison officials on page four of the application. Thereafter, on December 15,

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2020, Plaintiff submitted what appears to be two identical copies of her financial certificate

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and inmate account statement. (ECF Nos. 5, 6.) But Plaintiff did not submit pages one

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through three of the application with her financial certificate and inmate account

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statement. Even if the Court compiles all of Plaintiff's individual in forma pauperis filings

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(ECF Nos. 4, 5, 6), Plaintiff still has not submitted a fully complete in forma pauperis

Case 3:20-cv-00672-MMD-CLB Document 9 Filed 02/16/21 Page 2 of 4

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application by the February 2, 2021 deadline because her application is missing two

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signatures.

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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); Malone

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

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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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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring
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Case 3:20-cv-00672-MMD-CLB Document 9 Filed 02/16/21 Page 3 of 4

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

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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. 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 another application to proceed in forma

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pauperis or pay the full $402 filing fee on or before February 2, 2021 expressly stated: “IT

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IS FURTHER ORDERED that, if Plaintiff does not file a fully complete application to

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proceed in forma pauperis with all three documents or pay the full $402 filing fee for a

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civil action on or before February 2, 2021, this case will be subject to dismissal without

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prejudice for Plaintiff to refile the case with the Court, under a new case number, when

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Plaintiff has all three documents needed to file a complete application to proceed in forma

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pauperis or pays the the full $402 filing fee.” (ECF No. 3 at 3.) Thus, Plaintiff had adequate

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

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another fully complete application to proceed in forma pauperis or pay the full $402 filing

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fee on or before February 2, 2021.

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It is therefore ordered that this action is dismissed without prejudice based on

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Plaintiff’s failure to file another fully complete application to proceed in forma pauperis or

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pay the full $402 filing fee in compliance with this Court’s order dated December 7, 2020

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(ECF No. 3).

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Case 3:20-cv-00672-MMD-CLB Document 9 Filed 02/16/21 Page 4 of 4

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It is further ordered that all pending motions (ECF Nos. 4, 7, 8) are 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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No other documents may be filed in this now-closed case. The Court notes that the parties

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made several arguments and cited to several cases not discussed above. The Court has

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reviewed these arguments and cases and determines that they do not warrant discussion

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as they do not affect the outcome of the motions before the Court.

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DATED THIS 16th Day of February 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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