Houston v. Offenders Management Division

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 BRICK S HOUSTON, Case No. 2:20-cv-01453-JAD-DJA

5 Plaintiff v. 6 Order Dismissing OFFENDERS MANAGEMENT DIVISION, and Closing Case 7 et. al.,

8 Defendants

9 10 Plaintiff Brick S Houston brought this civil-rights lawsuit to redress constitutional 11 violations he claims in his complaint that he suffered while in the custody of the Nevada 12 Department of Corrections.1 On June 18, 2021, I issued an order denying Houston’s application 13 to proceed in forma pauperis because he had “three strikes” under 28 U.S.C. § 1915(g) and his 14 complaint did not plausibly allege that he was in imminent danger of serious physical injury 15 when he filed his complaint.2 I informed Houston that, if he did not pay the filing fee by July 19, 16 2021, I would dismiss the action without prejudice.3 That deadline has expired, and Houston has 17 not paid the fee or otherwise responded to my order. 18 District courts have the inherent power to control their dockets and “[i]n the exercise of 19 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.4 A 20 court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a 21 1 ECF No. 1-1 at 1. 22 2 ECF No. 10. 23 3 Id. 4 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 1 court order, or failure to comply with local rules.5 In determining whether to dismiss an action 2 on one of these grounds, the court must consider: (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.6 6 The first two factors, the public’s interest in expeditiously resolving this litigation and the 7 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The 8 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 9 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 10 ordered by the court or prosecuting an action.7 A court’s warning to a party that its failure to 11 obey the court’s order will result in dismissal satisfies the fifth factor’s “consideration of 12 alternatives” requirement,8 and that warning was given here.9 The fourth factor—the public 13 policy favoring disposition of cases on their merits—is greatly outweighed by the factors 14 favoring dismissal.

15 16 17 5 See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with 18 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– 19 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. 20 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). 21 6 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 7 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 23 8 Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424. 9 ECF No. 10. 1 IT IS THEREFORE ORDERED that THIS ACTION IS DISMISSED without prejudice based on the plaintiff’s failure to pay the filing fee as ordered. The Clerk of Court is directed to 3] ENTER JUDGMENT accordingly and CLOSE THIS CASE. No other documents may be 4) filed in this now-closed case. 5 Dated: August 14, 2021 2 Ze US. District Judge-Jennifer A. Dorsey 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23