United States District Court, D. Nevada
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 October 22, 2019,
the Court issued an order dismissing the complaint with leave
to amend within 30 days. (ECF No. 6 at 9). 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.
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 informed Plaintiff that “if
Plaintiff fails to file an amended complaint curing the
deficiencies outlined in this order, this action shall be
dismissed with prejudice for failure to state a colorable
claim against any Defendant and for failure to comply with
Rule 8.” (ECF No. 6 at 10.) Thus, Plaintiff had
adequate warning that dismissal would result from his
noncompliance with the Court's order to file an amended
complaint within 30 days.
foregoing reasons, it is ordered that Plaintiffs application
to proceed in forma pauperis (ECF No. 4) without
having to prepay the full filing fee is granted. Plaintiff
shall not be required to pay an initial installment fee.
Nevertheless, the full filing fee shall 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
to 28 U.S.C. § 1915(b)(2), the Nevada Department of
Corrections shall pay to the Clerk of the United States
District Court, District of Nevada, 20% of the preceding
month's deposits to Plaintiffs account (Ivan Lee Matthews
II, #1127748), 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 is directed to send a copy of
this order to the Finance Division of the Clerk's Office.
The Clerk of the Court is also directed to 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 shall 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 October 22, 2019 order
and for failure to state a claim.
further ordered that the Clerk of Court shall enter judgment