United States District Court, D. Nevada
JOHN A. HARRIS, Jr., Plaintiff,
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
action is a pro se civil rights action filed
pursuant to 42 U.S.C. § 1983 by a person in the custody
of the Nevada Department of Corrections. On December 10,
2018, Plaintiff filed an application to proceed in forma
pauperis and a complaint. (ECF No. 1, 1-1.) On September 20,
2019, the Court issued an order dismissing the Complaint with
leave to amend and directed Plaintiff to file any amended
complaint within 30 days. (ECF No. 5 at 7). The time period
for filing an amended complaint has now expired, and
Plaintiff has not filed an amended complaint or otherwise
responded to the Court's order. 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.
Thompson v. Hous. Auth. of City of L.A., 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 Serv., 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).
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 30
days expressly stated: “It is further ordered that, if
Plaintiff fails to file an amended complaint curing the
deficiencies outline in this order, this action will be
dismissed with prejudice for failure to state a claim.”
(ECF No. 5 at 8). Thus, Plaintiff had adequate warning that
dismissal would result from his noncompliance with the
Court's order to file an amended complaint within 30
therefore ordered that Plaintiffs application to proceed
in forma pauperis (ECF No. 1) without having to
prepay the full filing fee is granted. Plaintiff will not be
required to pay an initial installment fee. Nevertheless, the
full filing fee will still be due, pursuant to 28 U.S.C.
§ 1915, as amended by the Prisoner Litigation Reform
Act. The movant herein is permitted to maintain this action
to conclusion without the necessity of prepayment of fees or
costs or the giving of security therefor.
to 28 U.S.C. § 1915(b)(2), the Nevada Department of
Corrections will pay to the Clerk of the United States
District Court, District of Nevada, 20% of the preceding
month's deposits to Plaintiff's account (John A.
Harris, Jr., #1061613), in the months that the account
exceeds $10.00, until the full $350.00 filing fee has been
paid for this action. The Clerk of the Court will send a copy
of this order to the Finance Division of the Clerk's
Office. The Clerk of the Court will also send a copy of this
order to the attention of the Chief of Inmate Services for
the Nevada Department of Corrections, P.O. Box 7011, Carson
City, NV 89702.
further ordered that, regardless of the success of
Plaintiff's action, the full filing fee will still be
due, pursuant to 28 U.S.C. §1915, as amended by the
Prisoner Litigation Reform Act.
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 ...