United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C. Â§
636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4.
Before the court is plaintiffs failure to file a second
amended complaint pursuant to the court's order (ECF No.
action is a pro se civil rights complaint filed
pursuant to 42 U.S .C. § 1983. On July 25, 2018, the
court issued an order dismissing the first amended complaint
with leave to amend and directed plaintiff to file a second
amended complaint by August 30, 2018 (ECF No. 16).
Thereafter, plaintiff was granted one final opportunity to
file a second amended complaint by November 21, 2018 (ECF No.
20). On November 9, 2018, plaintiff filed a notice advising
the court that he would not file a second amended complaint
(ECF No. 21).
courts have the inherent power to control their dockels 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
puolic'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
extending time for plaintiff to file a second amended
complaint expressly stated: "If plaintiff fails to
timely file an amended complaint, this case will
automatically be dismissed." (ECF No. 20). Thus,
plaintiff had adequate warning that dismissal would result
from his noncompliance with the court's order to file an
therefore recommended that this action be dismissed without
prejudice based on plaintiffs failure to file a second
amended complaint in compliance with the court's July 25,
parties are advised:
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of
the Local Rules of Practice, the parties may file specific
written objections to this Report and Recommendation within
fourteen days of receipt. These objections should be entitled
"Objections to Magistrate Judge's Report and
Recommendation" and should be accompanied by points and
authorities for consideration by the District Court.
Report and Recommendation is not an appealable order and any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court's
THEREFORE RECOMMENDED that the Court enter an order
DISMISSING this action without
prejudice based on plaintiffs failure ...