Banasiak v. Williams ( 2020 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOSHUA N. BANASIAK, Case No. 3:20-cv-00414-MMD-CLB 7 Plaintiff, ORDER 8 v. 9 WARDEN BRIAN WILLIAMS, 10 Defendant. 11 12 This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 13 by Joshua N. Banasiak, an incarcerated person at Ely State Prison. (ECF No. 1-1.) On 14 July 10, 2020, this Court issued an order denying the Plaintiff’s application to proceed in 15 forma pauperis, without prejudice, because the application was incomplete. (ECF No. 3 at 16 2.) The Court ordered Plaintiff to file a fully complete application to proceed in forma 17 pauperis or pay the full filing fee of $400 on or before September 8, 2020. (Id. at 3.) The 18 September 8, 2020, deadline has now expired, and Plaintiff has not filed another 19 application to proceed in forma pauperis, paid the full filing fee, or otherwise responded to 20 the Court’s order. 21 District courts have the inherent power to control their dockets and “[i]n the exercise 22 of that power, they may impose sanctions including, where appropriate . . . dismissal” of a 23 case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 24 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 25 action, failure to obey a court order, or failure to comply with local rules. See Ghazali v. 26 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for noncompliance with local 27 rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (affirming dismissal for 28 failure to comply with an order requiring amendment of complaint); Carey v. King, 856 2 requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal 3 Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure to comply with 4 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (affirming 5 dismissal for lack of prosecution and failure to comply with local rules). 6 In determining whether to dismiss an action for lack of prosecution, failure to obey 7 a court order, or failure to comply with local rules, the Court must consider several factors: 8 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 9 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 10 disposition of cases on their merits; and (5) the availability of less drastic alternatives. See 11 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 12 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 13 Here, the Court finds that the first two factors, the public’s interest in expeditiously 14 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 15 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 16 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 17 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 18 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 19 disposition of cases on their merits—is greatly outweighed by the factors in favor of 20 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the 21 court’s order will result in dismissal satisfies the “consideration of alternatives” 22 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 23 at 1424. 24 The Court’s order requiring Plaintiff to file another application to proceed in forma 25 pauperis or pay the full filing fee on or before September 8, 2020, expressly stated: “IT IS 26 FURTHER ORDERED that, if Plaintiff does not file a fully complete application to proceed 27 in forma pauperis with all three documents or pay the full $400 filing fee for a civil action 28 on or before September 8, 2020, the Court will dismiss this action without prejudice for 1 || Plaintiff to refile the case with the Court, under a new case number, when Plaintiff has all 2 || three documents needed to file a complete application to proceed in forma pauperis.” (ECF 3 || No. 3 at 3.) Thus, Plaintiff had adequate warning that dismissal would result from his 4 || noncompliance with the Court’s order to file another application to proceed in forma 5 || pauperis or pay the full filing fee on or before September 8, 2020. 6 It is therefore ordered that this action is dismissed without prejudice based on 7 || Plaintiffs failure to file another application to proceed in forma pauperis or pay the full filing 8 || fee in compliance with this Court’s July 10, 2020, order (ECF No. 3). 9 It is further ordered that the Clerk of Court will close the case and enter judgment 10 || accordingly. 11 DATED THIS 15* day of September 2020. 12 13 AGA 14 MIRANDA M. DU 16 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28