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Aubert v. Williams

United States District Court, D. Nevada

March 29, 2018

THAD AUBERT, Plaintiff
v.
BRIAN WILLIAMS SR., Defendant

          ORDER DISMISSING CASE

          Jennifer A. Dorsey U.S. District Judge

         Plaintiff Thad Aubert submitted a letter to the court seeking clarification on some conflicting advice he received from fellow inmates.[1] On February 5, 2018, I directed Aubert to submit a complaint and to file a fully complete application to proceed in forma pauperis or pay the $400 filing fee by March 7, 2018.[2] I expressly warned him that his failure to comply with or otherwise respond to this order would result in dismissal without further prior notice.[3] The deadline has passed, and Aubert has done neither.

         District courts have the inherent power to control their dockets and “[i]n the exercise of that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.[4] A court may dismiss an action with prejudice based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules.[5] In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.[6]

         I find that the first two factors-the public's interest in expeditiously resolving the litigation and the court's interest in managing the docket-weigh in favor of dismissing this case. The risk-of-prejudice factor also weighs in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or prosecuting an action.[7] The fourth factor is greatly outweighed by the factors in favor of dismissal, and a court's warning to a party that his failure to obey the court's order will result in dismissal satisfies the consideration-of-alternatives requirement.[8] Aubert was warned that his case would be dismissed without prejudice if he did not submit a complaint and file an application to proceed in forma pauperis or pay the full filing fee.[9] So, Aubert had adequate warning that his failure to submit a complaint and to pay the fee or submit a completed application would result in this case's dismissal.

         Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED without prejudice based on Aubert's failure to submit a complaint and to file an application to proceed in forma pauperis or pay the full filing fee in compliance with this Court's February 5, 2018, order; and The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE.

---------

Notes:

[1] ECF No. 1 (letter).

[2] ECF No. 3 (order).

[3] Id.

[4] Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

[5] See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440- 41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).

[6] Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Gha ...


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