McKinley v. Ford

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

* * * MURRY S. MCKINLEY, Case No. 3:21-cv-00213-MMD-CLB

Plaintiff, ORDER v.

AARON FORD, et al.,

Defendants.

This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 12 1983 by Plaintiff Murry S. McKinley, a state prisoner. On August 10, 2021, the Court issued an order dismissing the complaint with leave to amend and directed McKinley to file an amended complaint within 30 days. (ECF No. 4.) The 30-day period has now expired, and McKinley has not filed an amended complaint or otherwise responded to the Court’s order.

District courts have the inherent power to control their dockets and “[i]n the exercise of that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (affirming dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 8 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

Here, the Court finds that the first two factors, the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket, weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of cases on their merits—is greatly outweighed by the factors in favor of 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” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 19 at 1424. The Court’s order requiring McKinley to file an amended complaint within 30 days expressly stated: “It is further ordered that, if McKinley fails to timely file an amended complaint, the Court will dismiss this action without prejudice.” (ECF No. 4 at 4). Thus, McKinley had adequate warning that dismissal would result from his noncompliance with the Court’s order to file an amended complaint within 30 days.

It is therefore ordered that this action is dismissed without prejudice based on McKinley’s failure to file an amended complaint in compliance with this Court’s August 10, 2021, order.

It is further ordered that McKinley’s application to proceed in forma pauperis (ECF No. 1) is granted. McKinley shall not be required to pay an initial installment of the filing fee. Even though this action is dismissed, the full filing fee must still be paid pursuant to 28U.S.C. § 1915(b)(2).

It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act, the Nevada Department of Corrections will forward payments from the account of Murry S. McKinley, #92604 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 g | 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 Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

The Clerk of Court is directed to enter judgment accordingly and close this case. DATED THIS 20" Day of September 2021.

A GQ RANE

CHIEF UNITED STATES DISTRICT JUDGE