United States District Court, D. Nevada
action is a pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983 by a former inmate. On May
16, 2016, the court issued an order dismissing the complaint
with leave to amend and directed plaintiff to file an amended
complaint within thirty days. (ECF No. 5 at 5, 6). The
thirty-day period has now expired. Plaintiff has not filed an
amended complaint. Instead, he has filed a document that the
court construes as a motion for
reconsideration. (ECF No. 7.) The court now considers the
motion for reconsideration and plaintiff's failure to
amend the complaint.
Motion for Reconsideration
motion to reconsider must set forth “some valid reason
why the court should reconsider its prior decision” and
set “forth facts or law of a strongly convincing nature
to persuade the court to reverse its prior decision.”
Frasure v. United States, 256 F.Supp.2d 1180, 1183
(D. Nev. 2003). Reconsideration is appropriate if this Court
“(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Sch. Dist. No. 1J v. Acands,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion
for reconsideration is not an avenue to re-litigate the same
issues and arguments upon which the court already has
ruled.” Brown v. Kinross Gold, U.S.A., 378
F.Supp.2d 1280, 1288 (D. Nev. 2005).
Court finds no grounds to reconsider its screening order.
Accordingly, the motion for reconsideration is denied.
Failure to File Amended Complaint
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. Thompson v. Hous. Auth. of City of Los
Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 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. 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
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. 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;
Ghazali, 46 F.3d at 53.
instant case, the Court finds that the first two factors, the
public's interest in expeditiously resolving this
litigation and the Court's interest in managing the
docket, weigh in favor of dismissal. The third factor, risk
of prejudice to Defendants, also weighs in favor of
dismissal, since a presumption of injury arises from the
occurrence of unreasonable delay in filing a pleading ordered
by the court or prosecuting an action. See Anderson v.
Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth
factor - public policy favoring disposition of cases on their
merits - is greatly outweighed by the factors in favor of
dismissal discussed herein. Finally, 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. Ferdik, 963 F.2d at
1262; Malone, 833 F.2d at 132-33;
Henderson, 779 F.2d at 1424. The Court's order
requiring Plaintiff to file an amended complaint within
thirty days expressly stated: “IT IS FURTHER ORDERED
that, if plaintiff chooses not to file an amended complaint
curing the stated deficiencies of the complaint, this action
shall be dismissed with prejudice for failure to state a
claim.” (ECF No. 5 at 6). Thus, Plaintiff had adequate
warning that dismissal would result from his noncompliance
with the Court's order to file an amended complaint
within thirty days. Accordingly, the court will dismiss this
action with prejudice based on plaintiff's failure to
file an amended complaint in compliance with this Court's
May 16, 2018 order and for failure to state a claim.
foregoing reasons, IT IS ORDERED that the motion for
reconsideration (ECF No. 7) is denied.
FURTHER ORDERED that this action is dismissed with prejudice
based on plaintiff's failure to file an amended complaint
in compliance with this Court's May 16, 2018 order and
for failure to state a claim.
FURTHER ORDERED that the clerk of court shall enter ...