Hernandez v. Allan ( 2019 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 6 SERGIO HERNANDEZ, Case No. 3:19-cv-00318-MMD-CLB 7 Plaintiff, ORDER 8 v. 9 MARC ALLAN, et al., 10 Defendants. 11 12 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 13 1983 by a former state prisoner. On October 29, 2019, this Court issued an order denying 14 the application to proceed in forma pauperis for prisoners as moot because Plaintiff was 15 no longer incarcerated. (ECF No. 4 at 1.) The Court ordered Plaintiff to file a fully complete 16 application to proceed in forma pauperis for non-prisoners or pay the full filing fee of 17 $400.00 within 30 days from the date of that order. (Id.) The 30-day period has now 18 expired, and Plaintiff has not filed an application to proceed in forma pauperis for non- 19 prisoners, paid the full filing fee, or otherwise responded to the Court’s order. 20 District courts have the inherent power to control their dockets and “[i]n the 21 exercise of that power, they may impose sanctions including, where appropriate . . . 22 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 23 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 24 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 25 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 26 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 27 (affirming dismissal for failure to comply with an order requiring amendment of complaint); 28 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 1 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 2 v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure to 3 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 4 (affirming dismissal for lack of prosecution and failure to comply with local rules). 5 In determining whether to dismiss an action for lack of prosecution, failure to obey 6 a court order, or failure to comply with local rules, the court must consider several factors: 7 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 8 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 9 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 10 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 11 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 12 Here, the Court finds that the first two factors weigh in favor of dismissal. The third 13 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 14 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 15 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 16 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of cases on their 17 merits—is greatly outweighed by the factors in favor of dismissal discussed herein. 18 Finally, a court’s warning to a party that his failure to obey the court’s order will result in 19 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 20 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s order 21 requiring Plaintiff to file an application to proceed in forma pauperis for non-prisoners or 22 pay the full filing fee within 30 days expressly stated: “IT IS FURTHER ORDERED that if 23 Plaintiff does not timely comply with this order, dismissal of this action may result.” (ECF 24 No. 4 at 1.) Thus, Plaintiff had adequate warning that dismissal would result from his 25 noncompliance with the Court’s order to file an application to proceed in forma pauperis 26 for non-prisoners or pay the full filing fee within 30 days. 27 It is therefore ordered that this action is dismissed without prejudice based on 28 Plaintiff’s failure to file an application to proceed in forma pauperis for non-prisoners or 1| pay the full filing fee in compliance with this Court’s October 29, 2019 order. 2 The Clerk of Court will enter judgment accordingly. 3 DATED this 9'" day of December 2019. 9 iMRANDA 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-