Fowler v. Sisolak

Opinion

1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 SKYLER FOWLER, Case No. 2:19-cv-01353-JAD-NJK 4 Plaintiff 5 v. Order DismissingCase 6 STEVE SISOLAK, et al., 7 Defendants 8 9 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state 10 prisoner. On August 7, 2019, this Court issued an order directing plaintiff to file a fully 11 complete application to proceed in forma pauperisor pay the full filing fee of $400 within 30 12 days from the date of that order.1 The 30-day period has now expired, and plaintiff has not filed 13 an application to proceed in forma pauperis, paid the full filing fee, or otherwise responded to 14 the Court’s order. 15 District courts have the inherent power to control their dockets and “[i]n the exercise of 16 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.2 A 17 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 18 failure to obey a court order, or failure to comply with local rules.3 In determining whether to 19 1 ECF No. 3 at 2. 20 2 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 21 3 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 22 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 23 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 rules). 1 dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with 2 local rules, the court must consider several factors: (1) the public’s interest in expeditious 3 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 4 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 5 availability of less drastic alternatives.4

6 In the instant case, the Court finds that the first two factors, the public’s interest in 7 expeditiously resolving this litigation and the Court’s interest in managing the docket, weigh in 8 favor of dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of 9 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 10 filing a pleading ordered by the court or prosecuting an action.5 The fourth factor –public policy 11 favoring disposition of cases on their merits –is greatly outweighed by the factors in favor of 12 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the 13 court’s order will result in dismissal satisfies the “consideration of alternatives” requirement.6 14 The Court’s order requiring plaintiff to file an application to proceed in forma pauperis or pay

15 the full filing fee expressly stated: “IT IS FURTHER ORDERED that if Plaintiff does not timely 16 comply with this order, dismissal of this action may result.”7 Thus, plaintiff had adequate 17 warning that dismissal would result from his noncompliance with the Court’s order to file an 18 application to proceed in forma pauperis or pay the full filing fee within 30 days. 19 20 21 4 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. 22 5 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 23 6 Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424. 7 ECF No. 3 at 2. 1 It is therefore ordered that THIS ACTION IS DISMISSED without prejudice based on 2\| plaintiff’ s failure to file an application to proceed in forma pauperis or pay the full filing fee in 3]| compliance with this Court’s August 7, 2019, order. The Clerk of Court is directed to ENTER 4] JUDGMENT accordingly and CLOSE THIS CASE. 5 Dated: September 23, 2019 som OES, a U.S. District wag Jenni fer A. Dorsey 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23