Johnson v. Nevada Department of Corrections

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 DAMON R. JOHNSON, Case No. 2:21-cv-00561-RFB-NJK

5 Plaintiff, ORDER

6 v.

7 NEVADA DEPARTMENT OF CORRECTIONS, et al., 8 Defendants. 9 10 11 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 12 1983 by a former state prisoner. On May 18, 2021, this Court ordered Plaintiff to file a 13 fully complete application to proceed in forma pauperis by a non-prisoner or pay the full 14 filing fee of $402 on or before June 17, 2021. (ECF No. 5). The June 17, 2021 deadline 15 has now expired, and Plaintiff has not filed an application to proceed in forma pauperis 16 by a non-prisoner, paid the full $402 filing fee, or otherwise responded to the Court’s 17 order. 18 District courts have the inherent power to control their dockets and “[i]n the 19 exercise of that power, they may impose sanctions including, where appropriate . . . 20 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 21 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 22 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 23 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 24 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 25 1992) (affirming dismissal for failure to comply with an order requiring amendment of 26 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal 27 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 28 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming 1 dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 2 1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with 3 local rules). 4 In determining whether to dismiss an action for lack of prosecution, failure to obey 5 a court order, or failure to comply with local rules, the court must consider several factors: 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 7 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 8 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 9 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 10 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 11 Here, the Court finds that the first two factors, the public’s interest in expeditiously 12 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 13 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 14 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 15 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 16 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 17 disposition of cases on their merits—is greatly outweighed by the factors in favor of 18 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 19 the court’s order will result in dismissal satisfies the “consideration of alternatives” 20 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 21 F.2d at 1424. The Court’s order requiring Plaintiff to file an application to proceed in forma 22 pauperis by a non-prisoner or pay the full $402 filing fee on or before June 17, 2021 23 expressly stated: “IT IS FURTHER ORDERED that if Plaintiff does not timely comply with 24 this order, this case will be subject to dismissal without prejudice for Plaintiff to file a new 25 case with the Court when Plaintiff is either able to file a fully complete application to 26 proceed in forma pauperis by a non-prisoner or pays the full $402 filing fee." (ECF No. 5 27 at 2). Thus, Plaintiff had adequate warning that dismissal would result from his 28 noncompliance with the Court’s order to file an application to proceed in forma pauperis by anon-prisoner or pay the full $402 filing fee on or before June 17, 2021. 2 IT IS THEREFORE ORDERED that this action is dismissed without prejudice 3 based on Plaintiff's failure to file an application to proceed in forma pauperis by a non- prisoner or pay the full $402 filing fee in compliance with this Court’s order dated May 18, 5| 2021. 6 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 7 | accordingly and close this case. No additional documents will be filed in this closed case. 8 9 DATED: July 13, 2021

11 RICHARD F.BOULWARE, || 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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