1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 GARY SHEPARD, Case No. 3:20-cv-0062-RCJ-CLB

5 Plaintiff, ORDER

6 v.

7 CHARLES DANIELS, et al.,

8 Defendants.

9 10 This action began with a pro se civil rights complaint filed pursuant to

1983 by Plaintiff, who is incarcerated in the custody of the Nevada Department of 12 Corrections (NDOC). On April 29, 2021, the Court issued a screening order pursuant to 13 28 U.S.C. §1915A dismissing the complaint with leave to amend and directed Plaintiff to 14 file an amended complaint within 30 days. ECF No. 3. On June 9, 2021, the Court 15 granted Plaintiff’s motion for an enlargement of time to June 27, 2021 to file an amended 16 complaint. ECF Nos. 5, 6. The extended period to file an amended complaint has now 17 expired and Plaintiff has not filed an amended complaint. 18 I. DISCUSSION 19 District courts have the inherent power to control their dockets and, in the exercise 20 of that power, may dismiss a case where appropriate. Thompson v. Hous. Auth. of City of 21 Los Angeles,

(9th Cir. 1986. A party’s failure to prosecute an action, 22 failure to obey a court order, or failure to comply with local rules may warrant dismissal of 23 an action with prejudice. See Ghazali v. Moran,

(9th Cir. 1995) 24 (affirming dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

, 1 1260-61 (9th Cir. 1992) (affirming dismissal for failure to comply with an order requiring 2 amendment of complaint); Carey v. King,

(9th Cir. 1988) 3 (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep 4 court apprised of address); Malone v. U.S. Postal Service,

(9th Cir.

5 1987) (affirming dismissal for failure to comply with court order); Henderson v. Duncan, 6

(9th Cir. 1986) (affirming dismissal for lack of prosecution and failure 7 to comply with local rules). 8 In determining whether to dismiss an action for lack of prosecution, failure to obey 9 a court order, or failure to comply with local rules, the court must consider several factors: 10 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 11 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases on their merits; and (5) the availability of less drastic 13 alternatives. See Thompson,

; Henderson,

; Malone, 14

; Ferdik,

; Ghazali,

.

15 Here, the Court finds that the first two factors, the public’s interest in expeditiously 16 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 17 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 18 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 19 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 20 West,

(9th Cir. 1976). 21 The fourth factor—public policy favoring disposition of cases on their merits—is 22 greatly outweighed by the factors in favor of dismissal discussed herein. Further, this 23 factor is mitigated in this matter because § 1915A requires that, before docketing a

24 complaint filed by an inmate, the Court must identify and dismiss any claims that are 1 frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 2 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 1915A. 3 Similarly, under the Prison Litigation Reform Act (PLRA), a federal court must dismiss, at 4 any time, an incarcerated person’s claim if the claim “is frivolous or malicious, fails to

5 state a claim on which relief may be granted, or seeks monetary relief against a 6 defendant who is immune from such relief.”

(e)(2). 7 In the Screening Order, the Court found that Plaintiff failed to state a cognizable 8 claim upon which relief could be granted. ECF No. 3 at 6-9. The Court noted the 9 deficiencies of Plaintiff’s claims that could be cured by amendment and provided Plaintiff 10 an opportunity to amend his complaint to correct those deficiencies. By failing to timely 11 amend his complaint, Plaintiff has effectively elected to stand upon a complaint that fails 12 to state a cognizable claim and that cannot succeed on its merits. See Harris v. Mangum, 13

(9th Cir. 2017). 14 Finally, a court’s warning to a party that his failure to file an amended complaint will

15 result in dismissal satisfies the fifth factor that the court consider less drastic alternatives. 16 Ferdik,

; Malone,

; Henderson,

. 17 The Court’s order requiring that Plaintiff file an amended complaint within thirty days 18 expressly stated: “THE COURT FURTHER ORDERS that, if Plaintiff fails to file an 19 amended complaint curing the deficiencies outlined in this order, this action will be 20 dismissed with prejudice for failure to state a claim.” ECF No. 3 at 12. Thus, Plaintiff had 21 adequate warning that dismissal would result from his failure to prosecute this matter by 22 filing an amended complaint within the time provided by the Court. 23 II. CONCLUSION

24 For the foregoing reasons, 1 IT IS THEREFORE ORDERED that this action is DISMISSED WITH PREJUDICE 2 || as Plaintiff has failed to file an amended complaint that states a cognizable claim upon 3 || which relief may be granted in compliance with this Court’s April 29, 2021 Screening 4|| Order and June 9, 2021 Order extending time. 5 IT IS FURTHER ORDERED that Plaintiff's application to proceed in forma pauperis 6 || (ECF No. 1) is GRANTED. Plaintiff shall not be required to pay an initial installment fee. 7 || Even though this action is dismissed, the full filing fee must still be paid pursuant to

(b)(2). 9 IT IS FURTHER ORDERED that, pursuant to

, as amended by the Prison Litigation Reform Act, the Nevada Department of Corrections will forward 11 |) payments from the account of GARY SHEPARD, #69636 to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits (in months that the account exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of the Court will send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk will send a copy of this order to the attention of Chief of 16|| Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson 17 || City, NV 89702. 18 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and close this case. 20 21|| DATED THIS 21* day of July, 2021. □□□ | : 22 Robert C. Joj 23 United Stateb/District Judge 24 25