Matthews v. Gentry

Opinion

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

9 IVAN LEE MATTHEWS, Case No. 3:18-cv-00536-RCJ-WGC

10 Plaintiff, ORDER

11 v.

12 JO GENTRY, et al.,

13 Defendants.

14 15 This action is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by a 16 person in the custody of the Nevada Department of Corrections. On December 23, 2019, 17 the Court issued an order dismissing the complaint with leave to amend and directed 18 Plaintiff to file any amended complaint within 30 days of the date of that order. (ECF No. 19 7 at 11). The time period for filing an amended complaint has now expired, and Plaintiff 20 has not filed an amended complaint or otherwise responded to the Court’s order. District 21 courts have the inherent power to control their dockets and “[i]n the exercise of that power, 22 they may impose sanctions including, where appropriate . . . dismissal” of a case. 23 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 24 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 25 action, failure to obey a court order, or failure to comply with local rules. See Ghazali v. 26 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 27 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply 28 with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440- 1 41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs 2 to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 3 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 4 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to 5 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 file an amended complaint within 24 thirty days expressly stated that, if Plaintiff failed to file a timely amended complaint this 25 action would be dismissed with prejudice. (ECF No. 7 at 12.) Thus, Plaintiff had adequate 26 warning that dismissal would result from his noncompliance with the Court’s order to file 27 an amended complaint within thirty days. 28 For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in forma pauperis (ECF No. 1) without having to prepay the full filing fee is granted. Plaintiff shall not be required to pay an initial installment fee. Nevertheless, the full filing fee shall stillbe due, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform 4} Act. The movant herein is permitted to maintain this action to conclusion without the 5 | necessity of prepayment of fees or costs or the giving of security therefor. 6 Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall 7 | pay to the Clerk of the United States District Court, District of Nevada, 20% of the 8 | preceding month’s deposits to Plaintiff's account (lvan Lee Matthews, # 1127748), in the 9] months that the account exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The Clerk of the Court shall SEND a copy of this order to the Finance 11 | Division of the Clerk’s Office. The Clerk of the Court shall also SEND a copy of this order tothe attention of the Chief of Inmate Services for the Nevada Department of Corrections, 13 | P.O. Box 7011, Carson City, NV 89702. 14 It is further ordered that, regardless of the success of Plaintiff's action, the full filing 15 | fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation 16 | Reform Act. 17 It is further ordered that this action is dismissed with prejudice based on □□□□□□□□□□□ failure to file an amended complaint in compliance with this Court’s December 23, 2019 order and for failure to comply with Rule 8. 20 Itis further ordered that the Clerk of Court shall enter judgment accordingly. DATEDTHIS 6th day of February 2020. 22 23 UN STATES®ISTRICT JUDGE 24 25 26 27 28

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