Smith v. Cox ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 EMANUEL D. SMITH, Case No. 2:18-cv-02061-MMD-EJY 6 Plaintiff, ORDER 7 v. 8 JAMES COX, et al. 9 Defendants. 10 11 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 12 1983 by a state prisoner. On October 29, 2019, the Court issued an order dismissing the 13 complaint with leave to amend, and directed Plaintiff to file an amended complaint within 14 30 days. (ECF No. 8 at 6.) The 30-day period has now expired, and Plaintiff has not filed 15 an amended complaint or otherwise responded to the Court’s order. 16 District courts have the inherent power to control their dockets and “[i]n the 17 exercise of that power, they may impose sanctions including, where appropriate . . . 18 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 19 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 20 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 21 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 22 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 23 (affirming dismissal for failure to comply with an order requiring amendment of complaint); 24 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 25 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 26 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure 27 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 28 (affirming dismissal for lack of prosecution and failure to comply with local rules). 1 In determining whether to dismiss an action for lack of prosecution, failure to obey 2 a court order, or failure to comply with local rules, the court must consider several factors: 3 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 4 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 5 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 6 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 7 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 8 Here, the Court finds that the first two factors, the public’s interest in expeditiously 9 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 10 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 11 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 12 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 13 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring the 14 disposition of cases on their merits—is greatly outweighed by the factors in favor of 15 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 16 the court’s order will result in dismissal satisfies the “consideration of alternatives” 17 requirement. See Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 18 F.2d at 1424. The Court’s order requiring Plaintiff to file an amended complaint within 19 thirty days expressly stated: “It is further ordered that, if Plaintiff chooses not to file an 20 amended complaint curing the stated deficiencies of the complaint, this action will be 21 dismissed without prejudice.” (ECF No. 8 at 6.) Thus, Plaintiff had adequate warning that 22 dismissal would result from his noncompliance with the Court’s order to file an amended 23 complaint within thirty days. 24 It is therefore ordered that this action is dismissed without prejudice based on 25 Plaintiff’s failure to file an amended complaint in compliance with this Court’s October 29, 26 2019, order. 27 /// 28 /// 1 It is further ordered that the motion to proceed in forma pauperis (ECF No. 6) is 2 denied as moot. 3 The Clerk of Court is directed to enter judgment accordingly and close this case. 4 DATED THIS 12th day of December 2019. 5 6 MIRANDA M. DU 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