Jones v. Rivera

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Case No.: 2:21-cv-01232-JAD-VCF Johnny Jones,

Plaintiff

Order Denying Motions and Dismissing v. and Closing Case

Rivera, et al., [ECF Nos. 1-2, 7]

Defendants

Plaintiff Johnny Jones brings this civil-rights case under § 1983 for events he alleges occurred during his incarceration at High Desert State Prison.1 On July 9, 2021, the Magistrate Judge ordered plaintiff to file an application to proceed in forma pauperis or pay the $402 filing fee by September 7, 2021.2 Jones appealed the order, and his appeal was dismissed.3 On October 15, 2021, the magistrate judge gave Jones a final extension until November 17, 2021, to file an application to proceed in forma pauperis or pay the $402 filing fee.4 The deadline has passed, and Jones has not filed an application to proceed in forma pauperis, paid the $402 filing fee, or otherwise responded to the magistrate judge’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.5 A court may dismiss an action with prejudice based on a party’s failure to prosecute an action,

ECF No. 1-1 (complaint).

ECF No. 5.

ECF No. 11.

4 ECF No. 13 (order).

5 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). failure to obey a court order, or failure to comply with local rules.6 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.7

I find that the first two factors—the public’s interest in expeditiously resolving the litigation and the court’s interest in managing the docket—weigh in favor of dismissing this case. The risk-of-prejudice factor also weighs in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or prosecuting an action.8 The fourth factor is greatly outweighed by the factors in favor of dismissal, and 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.9 Jones was warned that his case would be subject to dismissal without prejudice if he failed to file an application to proceed in forma pauperis or pay the $402 filing fee by November 17, 2021.10 So, Jones had adequate warning that his failure to file an application to proceed in forma pauperis or pay the $402 filing fee by the deadline would result in this case’s dismissal.

Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED without prejudice based on Jones’s failure to file an application to proceed in forma pauperis or pay the $402 filing fee in compliance with the Magistrate Judge’s October 15, 2021, order; and

See Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order).

7 Malone, 833 F.2d at 130.

8 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

9 Malone, 833 F.2d at 132–33.

ECF No.13 (order).

Jones’s motions for a preliminary injunction and temporary restraining order [ECF Nos. 7] are DENIED as moot; and

The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE.

DATED: November 24, 2021

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