Ellis v. High Desert State Prison

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * *

9 DARRAL ELLIS, Case No. 2:19-cv-00454-GMN-EJY

10 Plaintiff, ORDER

11 v.

12 HIGH DESERT STATE PRISON, et al.,

13 Defendants.

14 15 This action is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by a 16 prisoner in the custody of the Nevada Department of Corrections.1 On June 1, 2020 the 17 Court issued an order dismissing the second amended complaint with leave to amend 18 and directed Plaintiff to file any third amended complaint within 30 days of the date of that 19 order. (ECF No. 20 at 7). The time period for filing a third amended complaint has 20 expired, and Plaintiff has not filed an amended complaint or otherwise responded to the 21 Court’s order. District courts have the inherent power to control their dockets and “[i]n the 22 exercise of that power, they may impose sanctions including, where appropriate . . . 23 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 24 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 25 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 26 27 1 The Court notes that Plaintiff has two pending applications to proceed in forma pauperis. (ECF No. 6, 10). The Court will grant the August 7, 2019 application (ECF No. 28 10). The Court will deny the April 26, 2019 application (ECF No. 6) as incomplete and unnecessary. 1 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 2 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 3 for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 4 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 5 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 6 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 7 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 8 failure to comply with local rules). 9 In determining whether to dismiss an action for lack of prosecution, failure to obey 10 a court order, or failure to comply with local rules, the court must consider several factors: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 12 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 13 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 14 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 15 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 16 In the instant case, the Court finds that the first two factors, the public’s interest in 17 expeditiously resolving this litigation and the Court’s interest in managing the docket, 18 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 19 in favor of dismissal, since a presumption of injury arises from the occurrence of 20 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 21 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy 22 favoring disposition of cases on their merits – is greatly outweighed by the factors in favor 23 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 24 the court’s order will result in dismissal satisfies the “consideration of alternatives” 25 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 26 F.2d at 1424. The Court’s order requiring Plaintiff to file an amended complaint within 27 thirty days expressly informed Plaintiff that, if he failed to timely file a third amended 28 complaint, this action would be dismissed with prejudice for failure to state a claim. (ECF 1 No. 20 at 8). Thus, Plaintiff had adequate warning that dismissal would result from his 2 noncompliance with the Court’s order to file an amended complaint within thirty days. 3 For the foregoing reasons, it is ordered that Plaintiff’s August 7, 2019 application 4 to proceed in forma pauperis (ECF No. 10) without having to prepay the full filing fee is 5 granted. Plaintiff shall not be required to pay an initial installment fee. Nevertheless, the 6 full filing fee shall still be due, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner 7 Litigation Reform Act. The movant herein is permitted to maintain this action to conclusion 8 without the necessity of prepayment of fees or costs or the giving of security therefor. 9 Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall 10 pay to the Clerk of the United States District Court, District of Nevada, 20% of the 11 preceding month’s deposits to Plaintiff’s account (Darral Ellis, # 1206066), in the months 12 that the account exceeds $10.00, until the full $350.00 filing fee has been paid for this 13 action. The Clerk of the Court shall SEND a copy of this order to the Finance Division of 14 the Clerk’s Office. The Clerk of the Court shall also SEND a copy of this order to the 15 attention of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. 16 Box 7011, Carson City, NV 89702. 17 It is further ordered that, regardless of the success of Plaintiff’s action, the full filing 18 fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation 19 Reform Act. 20 It is further ordered that this action is dismissed with prejudice based on Plaintiff’s 21 failure to file a third amended complaint in compliance with this Court’s June 1, 2020 order 22 and for failure to state a claim. 23 It is further ordered that the Clerk of Court shall enter judgment accordingly and 24 close this case. 25 DATED THIS 2 8 day of J u l y 2020. 26

27 UNITED STATES DISTRICT JUDGE 28