Harris v. McTee

• Court: District Court, D. Nevada
• Decided: October 30, 2019
• Docket: 3:18-cv-00584
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 * * *

11 JOHN A. HARRIS, Jr., Case No. 3:18-cv-00584-MMD-CBC

12 Plaintiff, ORDER

13 v.

14 MCTEE,

15 Defendants.

16 17 This action is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by a 18 person in the custody of the Nevada Department of Corrections. On December 10, 2018, 19 Plaintiff filed an application to proceed in forma pauperis and a complaint. (ECF No. 1, 1- 20 1.) On September 20, 2019, the Court issued an order dismissing the Complaint with 21 leave to amend and directed Plaintiff to file any amended complaint within 30 days. (ECF 22 No. 5 at 7). The time period for filing an amended complaint has now expired, and Plaintiff 23 has not filed an amended complaint or otherwise responded to the Court’s order. District 24 courts have the inherent power to control their dockets and “[i]n the exercise of that power, 25 they may impose sanctions including, where appropriate . . . dismissal” of a case. 26 Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986). A court may 27 dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure 28 to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 1 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 2 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 3 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 4 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 5 apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) 6 (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 7 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local 8 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 F.2d 26 at 1424. The Court’s order requiring Plaintiff to file an amended complaint within 30 days 27 expressly stated: “It is further ordered that, if Plaintiff fails to file an amended complaint 28 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 days. 4 It is therefore ordered that Plaintiff's 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 6 | pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 7| 280U.58.C. § 1915, as amended by the Prisoner Litigation Reform Act. The movant herein 8| is permitted to maintain this action to conclusion without the necessity of prepayment of fees or costs or the giving of security therefor. 10 Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections will 11| 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 13} months that the account exceeds $10.00, until the full $350.00 filing fee has been paid 14 | 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 16 | attention of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 18 It is 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 20 | Reform Act. 21 It is further ordered that this action is dismissed with prejudice based on Plaintiff's 22 | failure to file an amended complaint in compliance with this Court’s September 20, 2019 23 | order and for failure to state a claim. 24 It is further ordered that the Clerk of Court enter judgment accordingly. 25 DATED THIS 30" day of October 2019. °° {Sho 27 MIRANDA M.DU 28 CHIEF UNITED STATES DISTRICT JUDGE