Turpening v. Filson

Opinion

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

9 AARON LEE TURPENING, Case No. 3:17-cv-00178-RCJ-WGC

10 Plaintiff, ORDER

11 v.

12 TIMOTHY FILSON,

13 Defendants.

14 15 16 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by 17 a former state prisoner. On April 22, 2019, this Court issued an order denying the 18 application to proceed in forma pauperis for prisoners as moot because Plaintiff was no 19 longer incarcerated. (ECF No. 10 at 1.) The Court ordered Plaintiff to file a fully complete 20 application to proceed in forma pauperis for non-prisoners or pay the full filing fee of 21 $400.00 within thirty (30) days from the date of that order. (Id. at 2). The thirty-day period 22 has now expired, and Plaintiff has not filed an application to proceed in forma pauperis 23 for non-prisoners, paid the full filing fee, or otherwise responded to the Court’s order. 24 District courts have the inherent power to control their dockets and “[i]n the 25 exercise of that power, they may impose sanctions including, where appropriate . . . 26 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 27 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 28 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 1 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 2 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 3 for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 4 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 5 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 6 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 7 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 8 failure to comply with local rules). 9 In determining whether to dismiss an action for lack of prosecution, failure to obey 10 a court order, or failure to comply with local rules, the court must consider several factors: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 12 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 13 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 14 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 15 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 16 In the instant case, the Court finds that the first two factors, the public’s interest in 17 expeditiously resolving this litigation and the Court’s interest in managing the docket, 18 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 19 in favor of dismissal, since a presumption of injury arises from the occurrence of 20 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 21 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy 22 favoring disposition of cases on their merits – is greatly outweighed by the factors in favor 23 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 24 the court’s order will result in dismissal satisfies the “consideration of alternatives” 25 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 26 F.2d at 1424. The Court’s order requiring Plaintiff to file an application to proceed in forma 27 pauperis for non-prisoners or pay the full filing fee within thirty (30) days expressly stated: 28 “IT IS FURTHER ORDERED that if Plaintiff does not timely comply with this order, dismissal of this action may result.” (ECF No. 10 at 2.) Thus, Plaintiff had adequate 2 | warning that dismissal would result from his noncompliance with the Court’s order to file 3 an application to proceed in forma pauperis for non-prisoners or pay the full filing fee 4} within thirty (30) days. 5 It is therefore ordered that this action is dismissed with prejudice based on 6 | Plaintiff's failure to file an application to proceed in forma pauperis for non-prisoners or 7 | pay the full filing fee in compliance with this Court’s April 22, 2019 order. 8 It is further ordered that the Clerk of Court shall enter judgment accordingly. 9 10 DATED THIS 318t day of July, 2019. 11 12 UNIT TATES [STRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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