Howell v. Wing

• Court: District Court, D. Nevada
• Decided: February 6, 2020
• Docket: 3:18-cv-00423
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 DAVID HOWELL, Case No. 3:18-cv-00423-RCJ-WGC 10 Plaintiff, ORDER v. 11 WING, et. al., 12 Defendants. 13 14 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 15 1983 by a state prisoner. On December 23, 2019, this Court issued an order denying 16 Plaintiff’s application to proceed in forma pauperis because Plaintiff had “three strikes” 17 pursuant to 28 U.S.C. § 1915(g). (ECF No. 4). The Court instructed Plaintiff to file the 18 $400.00 filing fee in full within thirty days of the date of that order. (Id.) Plaintiff has not 19 filed the fee. 20 District courts have the inherent power to control their dockets and “[i]n the 21 exercise of that power, they may impose sanctions including, where appropriate . . . 22 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 23 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 24 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 25 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 26 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 27 for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 1 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 2 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 3 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 4 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 5 failure to comply with local rules). 6 In determining whether to dismiss an action for lack of prosecution, failure to obey 7 a court order, or failure to comply with local rules, the court must consider several factors: 8 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 9 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 10 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 11 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 12 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 13 In the instant case, the Court finds that the first two factors, the public’s interest in 14 expeditiously resolving this litigation and the Court’s interest in managing the docket, 15 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 16 in favor of dismissal, since a presumption of injury arises from the occurrence of 17 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 18 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy 19 favoring disposition of cases on their merits – is greatly outweighed by the factors in favor 20 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 21 the court’s order will result in dismissal satisfies the “consideration of alternatives” 22 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 23 F.2d at 1424. The Court’s order requiring Plaintiff to pay the full filing fee within thirty 24 days expressly warned Plaintiff that failure to comply with the order to pay the fee might 25 results in dismissal without prejudice without further notice. (ECF No. 4 at 2.) Thus, 26 27 ' Plaintiff had adequate warning that dismissal would result from his noncompliance with 2 the Court’s order to timely pay the full filing fee. It is therefore ordered that this action is dismissed without prejudice based on Plaintiff's failure to pay the $400.00 filing fee in compliance with this Court’s order. It is further ordered that the Clerk of Court shall enter judgment accordingly and 8 close this case. DATED THIS 6th day of February, 2020.

9 UNITE ATES DAJTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28