Noli v. Johnson ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Nicholas M. Noli, Case No.: 2:21-cv-00650-JAD-NJK 4 Plaintiff Order Granting Application to Proceed in 5 v. Forma Pauperis and Dismissing and Closing Case 6 Calvin Johnson, et al., [ECF No. 1] 7 Defendants 8 9 Plaintiff Nicholas M. Noli brings this civil-rights action under 42 U.S.C. § 1983, claiming 10 that his Eighth Amendment rights were violated when medical and prison staff delayed 11 surgically repairing his umbilical hernia during his incarceration at High Desert State Prison.1 12 On October 22, 2021, this court dismissed plaintiff’s claims with leave to amend by November 13 25, 2021.2 The court warned plaintiff that this case would be dismissed and closed if he failed to 14 file an amended complaint by that deadline.3 Plaintiff neither filed an amended complaint by 15 that deadline nor moved for an extension of time to do so. 16 Discussion 17 The law permits a district court to dismiss an action based on a party’s failure to comply 18 with a court order.4 In determining whether to dismiss an action on this ground, the court must 19 consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 20 21 1 ECF No. 1-1. 22 2 ECF No. 3. 3 Id. at 12. 23 4 See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint). 1 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 2 disposition of cases on their merits; and (5) the availability of less drastic alternatives.5 3 The first two factors, the public’s interest in expeditiously resolving this litigation and the 4 court’s interest in managing its docket, weigh in favor of dismissal of plaintiff’s claims. The 5 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 6 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 7 ordered by the court or prosecuting an action.6 The fourth factor—the public policy favoring 8 disposition of cases on their merits—is greatly outweighed by the factors favoring dismissal. 9 The fifth factor requires the court to consider whether less drastic alternatives can be used 10 to correct the party’s failure that brought about the court’s need to consider dismissal.7 Courts 11 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 12 explore possible and meaningful alternatives.”8 Because this action cannot proceed until and 13 unless plaintiff files an amended complaint, the only alternative is to enter a second order setting 14 another deadline. But the reality of repeating an ignored order is that it often only delays the 15 inevitable and squanders finite resources along the away. The circumstances here do not indicate 16 that this case will be an exception: there is no hint that Noli needs additional time nor evidence 17 18 5 In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 19 6 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 20 7 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before the party has disobeyed a court order does not satisfy this factor); 21 accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of last drastic 22 alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of dismissal for failure to 23 comply[,]” have been “eroded” by Yourish). 8 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 1} that he did not receive the screening order. Setting another deadline is not a meaningful alternative given these circumstances. So the fifth factor favors dismissal. 3 Conclusion 4 Having thoroughly considered these dismissal factors, I find that they weigh in favor of 5] dismissal. IT IS THEREFORE ORDERED that THIS ACTION IS DISMISSED for failure to 6|| file an amended complaint by the court-ordered deadline, leaving no claims pending. The Clerk 7|| of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. No other 8]| documents may be filed in this now-closed case. 9 IT IS FURTHER ORDERED that Nol1’s application to proceed in forma pauperis [ECF No. 1] is GRANTED. This status doesn’t relieve plaintiff of his obligation to pay the full $350 11}| filing fee under the statute; it just means that he can do it in installments. And the full $350 12|| filing fee remains due and owing even though this case is being dismissed. 13 To ensure that the plaintiff pays that fee, IT IS FURTHER ORDERED that under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act, the Nevada Department of Corrections must forward from the account of Nicholas M. Noli, #78945 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 18]/ action. The Clerk is directed to SEND a copy of this order (1) to the Finance Division of the 19]| Clerk’s Office and (2) to the attention of Chief of Inmate Services for the Nevada Department 20|| of Corrections, P.O. Box 7011, Carson City, NV 89702. 21 Dated: December 9, 2021 7D U.S. DistrictJedge Jennifer Dorsey 22 23