Thomas v. Russell ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MARCEL EUGENE THOMAS, Case No. 3:21-cv-00104-MMD-WGC 7 Plaintiff, ORDER v. 8 PERRY RUSSELL, 9 Defendant. 10 11 I. DISCUSSION 12 This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 13 by Plaintiff Marcel Eugene Thomas, a former state prisoner. On September 16, 2021, this 14 Court issued an order directing Thomas to file his updated address and a non-prisoner 15 application to proceed in forma pauperis with this Court within 30 days. (ECF No. 3.) The 16 30-day period has now expired, and Thomas has not filed his updated address, filed a 17 non-prisoner application to proceed in forma pauperis, or otherwise responded to the 18 Court’s order. 19 District courts have the inherent power to control their dockets and “[i]n the 20 exercise of that power, they may impose sanctions including, where appropriate . . . 21 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 22 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 23 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 24 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 25 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 26 (affirming dismissal for failure to comply with an order requiring amendment of complaint); 27 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 28 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 2 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 3 (affirming dismissal for lack of prosecution and failure to comply with local rules). 4 In determining whether to dismiss an action for lack of prosecution, failure to obey 5 a court order, or failure to comply with local rules, the court must consider several factors: 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 7 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 8 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 9 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 10 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 11 Here, the Court finds that the first two factors, the public’s interest in expeditiously 12 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 13 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 14 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 15 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 16 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 17 disposition of cases on their merits—is greatly outweighed by the factors in favor of 18 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 19 the court’s order will result in dismissal satisfies the “consideration of alternatives” 20 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 21 at 1424. The Court’s order requiring Thomas to file his updated address and file a non- 22 prisoner application to proceed in forma pauperis with the Court within 30 days expressly 23 stated: “IT IS FURTHER ORDERED that, if Plaintiff fails to timely comply with this order, 24 the Court will dismiss this case without prejudice.” (ECF No. 3 at 2.) Thus, Thomas had 25 adequate warning that dismissal would result from his noncompliance with the Court’s 26 order to file his updated address and a non-prisoner application to proceed in forma 27 pauperis within 30 days. 28 /// Ul. CONCLUSION 2 It is therefore ordered that this action is dismissed without prejudice based on 3|| Thomas's failure to file an updated address and a non-prisoner application to proceed in 4|| forma pauperis in compliance with this Court’s September 16, 2021, order. 5 The Clerk of Court is directed to enter judgment accordingly and close this case. 6 DATED THIS 26" Day of October 2021. 7 —. MIRANDA M. DU 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28