Perez v. Daniels

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 JOSEPH PEREZ, Case No. 2:21-cv-01343-GMN-NJK

4 Plaintiff ORDER

5 v.

6 CHARLES DANIELS, et al.,

7 Defendants

8 9 On July 19, 2021, this Court issued an order directing Plaintiff to file a fully 10 complete application to proceed in forma pauperis or pay the full $402 filing fee on or 11 before September 17, 2021. (ECF No. 3). The September 17, 2021 deadline has now 12 expired, and Plaintiff has not filed a fully complete application to proceed in forma 13 pauperis, paid the full $402 filing fee, or otherwise responded to the Court’s order. 14 District courts have the inherent power to control their dockets and “[i]n the 15 exercise of that power, they may impose sanctions including, where appropriate . . . 16 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 17 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 18 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 19 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 20 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 21 1992) (affirming dismissal for failure to comply with an order requiring amendment of 22 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal 23 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 24 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming 25 dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 26 1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with 27 local rules). 28 In determining whether to dismiss an action for lack of prosecution, failure to obey 1 a court order, or failure to comply with local rules, the court must consider several factors: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 3 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 4 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 5 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 6 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 7 Here, the Court finds that the first two factors, the public’s interest in expeditiously 8 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 9 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 10 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 11 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 12 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 13 disposition of cases on their merits—is greatly outweighed by the factors in favor of 14 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 15 the court’s order will result in dismissal satisfies the “consideration of alternatives” 16 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 17 F.2d at 1424. The Court’s order requiring Plaintiff to file a fully complete application to 18 proceed in forma pauperis or pay the full $402 filing fee on or before September 17, 2021 19 expressly stated: “IT IS FURTHER ORDERED that, if Plaintiff does not file a fully 20 complete application to proceed in forma pauperis with all three documents or pay the full 21 $402 filing fee for a civil action on or before September 17, 2021, this case will be subject 22 to dismissal without prejudice for Plaintiff to refile the case with the Court, under a new 23 case number, when Plaintiff is has all three documents needed to file a complete 24 application to proceed in forma pauperis or pays the the full $402 filing fee.” (ECF No. 3 25 at 3). Thus, Plaintiff had adequate warning that dismissal would result from 26 noncompliance with the Court’s order to file a fully complete application to proceed in 27 forma pauperis or pay the full $402 filing fee on or before September 17, 2021. 28 IT IS THEREFORE ORDERED that this action is dismissed without prejudice 1 based on Plaintiff’s failure to file a fully complete application to proceed in forma pauperis 2 or pay the full $402 filing fee in compliance with this Court’s order dated July 19, 2021. 3 (ECF No. 3). 4 IT IS FURTHER ORDERED that the Clerk of Court will close the case and enter 5 judgment accordingly. No other documents may be filed in this now-closed case. 6 DATED: S__e_p_t_._ _2_7_,_ _2_0_2_ 1 ___ 7 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 8

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28