Vidal v. Hubbarad-Pickett

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 FRANCISCO VIDAL, Case No. 2:19-cv-01491-RFB-BNW 8 Plaintiff, ORDER 9 v. 10 A.W. M HUBBARAD-PICKETT, 11 Defendants. [13] 14 This action is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by a 15 former prisoner. On December 11, 2020, this Court issued an order denying the 16 application to proceed in forma pauperis for prisoners as moot because Plaintiff was no 17 longer incarcerated. (ECF No 7.) The Court ordered Plaintiff to file a fully complete 18 application to proceed in forma pauperis for non-prisoners or pay the full filing fee of 19 $400.00 within thirty (30) days from the date of that order. Id. The thirty-day period has 20 now expired, and Plaintiff has not filed an application to proceed in forma pauperis for 21 non-prisoners, paid the full filing fee, or otherwise responded to the Court’s order. 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 , 831 25 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 26 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 27 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 28 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 1 for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 2 F.2d 1439 , 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 3 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 4 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 5 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 6 failure to comply with local rules). 7 In determining whether to dismiss an action for lack of prosecution, failure to obey 8 a court order, or failure to comply with local rules, the court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 10 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 11 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 12 Thompson, 782 F.2d at 831 ; Henderson, 779 F.2d at 1423-24 ; Malone, 833 F.2d at 130; 13 Ferdik, 963 F.2d at 1260-61 ; Ghazali, 46 F.3d at 53 . 14 In the instant case, the Court finds that the first two factors, the public’s interest in 15 expeditiously resolving this litigation and the Court’s interest in managing the docket, 16 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 17 in favor of dismissal, since a presumption of injury arises from the occurrence of 18 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 19 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy 20 favoring disposition of cases on their merits – is greatly outweighed by the factors in favor 21 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 22 the court’s order will result in dismissal satisfies the “consideration of alternatives” 23 requirement. Ferdik, 963 F.2d at 1262 ; Malone, 833 F.2d at 132-33; Henderson, 779 24 F.2d at 1424. The Court’s order requiring Plaintiff to file an application to proceed in forma 25 pauperis for non-prisoners or pay the full filing fee within thirty days expressly stated that 26 failure to timely comply with the order could results in dismissal of this action. (ECF No. 27 7 at 2.) Thus, Plaintiff had adequate warning that dismissal would result from his 28 noncompliance with the Court’s order to file an application to proceed in forma pauperis 1| for non-prisoners or pay the full filing fee within thirty (80) days. 2 It is therefore ordered that this action is dismissed based on Plaintiff's failure to file 3 an application to proceed in forma pauperis for non-prisoners or pay the full filing fee in 4| compliance with this Court's December 11, 2020 order. If Plaintiff wishes to pursue any 5 | claims, he must file a complaint in a new action with the required fee or application to 6 | proceed in forma pauperis for non-prisoners. 7 It is further ordered that the Clerk of Court shall enter judgment accordingly and 8| close this case. No other documents shall be filed in this closed case. [9] 10 DATED THIS 22"¢ day of January, 2021. [12] 13 RICHARG F, BPULIARE, 44 UNITED STAKHS-BTS TRICT JUDGE [28] -3-