Lovell v. Dzurenda ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 GEORGE T. LOVELL, Case No. 3:18-cv-00442-RCJ-CLB 4 Plaintiff DISMISSAL ORDER 5 v. 6 JAMES DZURENDA et al., Defendants 7 8 This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 9 by a former state prisoner. On October 11, the Court issued an order directing Plaintiff to 10 file his updated address and a non-prisoner application to proceed in forma pauperis with this Court within thirty (30) days. (ECF No. 4.) Plaintiff filed an updated address, but he 11 has not filed a non-prisoner application to proceed in forma pauperis. 12 District courts have the inherent power to control their dockets and “[i]n the 13 exercise of that power, they may impose sanctions including, where appropriate . . . 14 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 15 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 16 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 17 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 18 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 19 1992) (affirming dismissal for failure to comply with an order requiring amendment of 20 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal 21 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 22 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming 23 dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 24 1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with 25 local rules). 26 In determining whether to dismiss an action for lack of prosecution, failure to obey 27 a court order, or failure to comply with local rules, the court must consider several factors: || manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 2|| disposition of cases on their merits; and (5) the availability of less drastic alternatives. 3|| See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 4|| 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 5 Here, the Court finds that the first two factors, the public’s interest in expeditiously g|| resolving this litigation and the Court's interest in managing the docket, weigh in favor of 7 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 8 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 9 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 40 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 44 disposition of cases on their merits—is greatly outweighed by the factors in favor of 12 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” "8 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 " F.2d at 1424. The Court’s order requiring Plaintiff to file his updated address and file a non-prisoner application to proceed in forma pauperis with the Court within thirty (30) 16 days expressly stated: “IT |S FURTHER ORDERED that, if Plaintiff fails to timely comply 7 with this order, the Court shall dismiss this case without prejudice.” (ECF No. 4 at 2.) 18 Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance 191) with the Court’s order to file a non-prisoner application to proceed in forma pauperis within thirty (30) days. 21 It is therefore ordered that this action is dismissed without prejudice based on Plaintiff's failure to file a non-prisoner application to proceed in forma pauperis in compliance with this Court’s October 11, 2019, order. 24 It is further ordered that the Clerk of Court will enter judgment accordingly. 25 DATED this 23" day of December, 2019. 26 27 . 58 UNITED STATES DISTRICT JUDGE