Marks v. Williams ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 RICHARD MARKS, Case No. 2:19-cv-01359-APG-EJY Plaintiff, ORDER 4 v. 5 WILLIAMS, et al., 6 Defendants. 7 8 This action is a pro se civil rights complaint filed under 42 U.S.C. § 1983 by a state 9 prisoner. On October 8, 2019, Magistrate Judge Youchah issued an order directing plaintiff 10 Richard Marks to file a fully complete application to proceed in forma pauperis or pay the full 11 filing fee of $400.00 by November 22, 2019. ECF No. 7. Marks has not filed that application, 12 paid the full filing fee, or otherwise responded to Judge Youchah’s order. 13 District courts have the inherent power to control their dockets and “[i]n the exercise of 14 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 15 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 16 dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to 17 obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 53- 18 54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 19 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 20 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for 21 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 22 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 23 1 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 2 of prosecution and failure to comply with local rules). 3 In determining whether to dismiss an action for these reasons, I must consider several 4 factors: (1) the public’s interest in expeditious resolution of litigation; (2) my need to manage my 5 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 6 cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 7 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 8 Ghazali, 46 F.3d at 53. 9 Here, the first two factors (the public’s interest in expeditiously resolving this litigation 10 and my interest in managing the docket) weigh in favor of dismissal. The third factor (risk of 11 prejudice to the defendants) also weighs in favor of dismissal because a presumption of injury 12 arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or 13 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 14 factor (public policy favoring disposition of cases on their merits) is greatly outweighed by the 15 factors in favor of dismissal. Finally, a court’s warning to a party that his failure to obey the 16 court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. 17 Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. Judge 18 Youchah’s order requiring Marks to file an application to proceed in forma pauperis or pay the 19 full filing fee within 30 days expressly stated: “IT IS FURTHER ORDERED that if Plaintiff 20 does not timely comply with this order, dismissal of this action may result.” ECF No. 7 at 2. 21 Thus, Marks had adequate warning that dismissal would result from his noncompliance with the 22 order. 23 1 I therefore order that this action is dismissed without prejudice based on plaintiff Richard Marks’s failure to file an application to proceed in forma pauperis or pay the full filing fee in compliance with Judge Youchah’s October 8, 2019 order. This means that this case is dismissed 4!| without any ruling on the merits of Marks’s claims and he may pursue his claims only by filing a complaint in a new case along with the filing fee or a complete application to proceed in forma 6}| pauperis, including the required financial certificate and account statements. 7 I further order the Clerk of Court to enter judgment accordingly and close this case. 8 Dated: December 2, 2019. Z 9 ANDREWP.GORDON ———™ UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23