United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
report and recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4.
October 25, 2018, plaintiff submitted a notice of intent to
file a civil rights case (ECF No. 1). However, plaintiff did
not file a complaint or an application to proceed in
forma pauperis. (Id.)
January 18, 2019, the court ordered plaintiff to file a
complaint and to either pay the filing or submit an
application to proceed in forma pauperis within
thirty days (ECF No. 3). Plaintiff was cautioned that failure
to do so may result in dismissal of this action.
(Id.) Plaintiff failed to respond to this
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 (9thCir. 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).
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 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.
the court finds 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
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 1424. The court's order
requiring plaintiff to file a complaint and file an
application to proceed in forma pauperis or pay the
full filing fee within thirty days expressly stated:
“If plaintiff does not timely comply with this order,
dismissal of this action may result.” (ECF No. 3).
Thus, plaintiff had adequate warning that dismissal would
result from his noncompliance with the court's order to
file a complaint and pay the filing fee within thirty days.
upon the foregoing, the undersigned magistrate judge
recommends that this action be dismissed without prejudice.
parties should be aware of the following:
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
reason stated above, the undersigned Magistrate Judge
recommends that the District Court enter an order