Richardson v. Howell ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DEWAYNE RICHARDSON, Case No. 3:20-cv-00537-MMD-CLB 7 Plaintiff, ORDER v. 8 JERRY HOWELL, et al., 9 Defendants. 10 11 This action began with an application to proceed in forma pauperis and a pro se 12 civil rights complaint filed by Plaintiff Dewayne Richardson. (ECF Nos. 1-1, 4.) On June 13 21, 2021, the Court issued an order dismissing Richardson’s complaint with leave to 14 amend and directed Richardson to file an amended complaint within 30 days. (ECF No. 15 5.) The 30-day period has now expired, and Richardson has not filed an amended 16 complaint or otherwise responded to the Court’s order. 17 Richardson’s application to proceed in forma pauperis is granted. (ECF No. 4.) 18 Based on the information regarding Richardson’s financial status, the Court finds that 19 Richardson is not able to pay an initial installment payment toward the full filing fee under 20 28 U.S.C. § 1915. Richardson will, however, be required to make monthly payments 21 toward the full $350.00 filing fee when he has funds available. 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 25 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 26 prosecute an action, failure to obey a court order, or failure to comply with local rules. See 27 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 28 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 2 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 3 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 4 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure 5 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 6 (affirming dismissal for lack of prosecution and failure to comply with local rules). 7 In determining whether to dismiss an action for lack of prosecution, failure to obey 8 a court order, or failure to comply with local rules, the court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 10 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 11 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 12 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 13 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 14 Here, the Court finds that the first two factors, the public’s interest in expeditiously 15 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 16 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 17 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 18 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air W., 19 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of 20 cases on their merits—is greatly outweighed by the factors in favor of dismissal discussed 21 herein. Finally, a court’s warning to a party that his or her failure to obey the court’s order 22 will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 23 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s 24 order requiring Richardson to file an amended complaint within 30 days expressly stated: 25 “It is further ordered that, if Richardson fails to file an amended complaint curing the 26 deficiencies outlined in this order, this action will be dismissed with prejudice for failure to 27 state a claim.” (ECF No. 5 at 13.) Richardson thus had adequate warning that dismissal 28 /// || would result from his noncompliance with the Court’s order to file an amended complaint within 30 days. 3 It is therefore ordered that Richardson's application to proceed in forma pauperis 4|| (ECF No. 1) is granted. Richardson shall not be required to pay an initial installment of the filing fee. In the event that this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2). 7 It is further ordered that the movant herein is permitted to maintain this action to 8|| conclusion without the necessity of prepayment of any additional fees or costs or the 9|| giving of security therefor. 10 It is further ordered that pursuant to 28 U.S.C. § 1915, as amended by the Prison || Litigation Reform Act, the Nevada Department of Corrections will forward payments from 12|| the account of Dewayne Richardson, #1011334 to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits (in months that the 14]| account exceeds $10.00) until the full $350.00 filing fee has been paid for this action. 15 The Clerk of Court is directed to send a copy of this order to the Finance Division 16|| of the Clerk’s Office. The Clerk will send a copy of this order to the attention of Chief of □□ Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 19 It is further ordered that this action is dismissed with prejudice based on 20|| Richardson’s failure to file an amended complaint in compliance with this Court's June 21, 2021 order. 22 The Clerk of Court is directed to enter judgment accordingly and close this case. 23 DATED THIS 19 Day of August 2021. 24 □□ 25 A ( ( ) 26 MIRANDA M. DU 57 CHIEF UNITED STATES DISTRICT JUDGE 28