Jones v. Howell ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOHNNY JONES, Case No. 3:21-cv-00030-MMD-CLB 7 Plaintiff, ORDER DISMISSING CASE AND v. GRANTING APPLICATION TO 8 PROCEED IN FORMA PAUPERIS JERRY HOWELL, et al., 9 Defendants. 10 11 12 Plaintiff Johnny Jones brings this civil-rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at High 14 Desert State Prison. (ECF No. 8.) On October 29, 2021, this Court ordered Jones to file 15 a second amended complaint by November 28, 2021. (ECF No. 9.) The Court warned 16 Jones that the action could be dismissed if he failed to file a second amended complaint 17 by that deadline. (Id. at 10.) That deadline expired and Jones did not file a second 18 amended complaint, move for an extension, or otherwise respond. 19 District courts have the inherent power to control their dockets and “[i]n the 20 exercise of that power, they may impose sanctions including, where appropriate . . . 21 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 22 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 23 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 24 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 25 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 26 Cir. 1987) (affirming dismissal for failure to comply with court order). In determining 27 whether to dismiss an action on one of these grounds, the Court must consider: (1) the 28 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 2 of cases on their merits; and (5) the availability of less drastic alternatives. See In re 3 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 4 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 5 The first two factors, the public’s interest in expeditiously resolving this litigation 6 and the Court’s interest in managing its docket, weigh in favor of dismissal of Jones’s 7 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 8 because a presumption of injury arises from the occurrence of unreasonable delay in filing 9 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 10 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 11 cases on their merits—is greatly outweighed by the factors favoring dismissal. 12 The fifth factor requires the Court to consider whether less drastic alternatives can 13 be used to correct the party’s failure that brought about the Court’s need to consider 14 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 15 that considering less drastic alternatives before the party has disobeyed a court order 16 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 17 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 18 “implicitly accepted pursuit of last drastic alternatives prior to disobedience of the court’s 19 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 20 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 21 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 22 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 23 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 24 unless Jones files a second amended complaint, the only alternative is to enter a second 25 order setting another deadline. But the reality of repeating an ignored order is that it often 26 only delays the inevitable and squanders the Court’s finite resources. The circumstances 27 here do not indicate that this case will be an exception: there is no hint that Jones needs 28 additional time or evidence that he did not receive the Court’s screening order. Setting 1 || another deadline is not a meaningful alternative given these circumstances. So the fifth 2 || factor favors dismissal. 3 Having thoroughly considered these dismissal factors, the Court finds that they 4 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 5 || prejudice based on Jones's failure to file a second amended complaint in compliance with 6 || this Court’s October 29, 2021, order and for failure to state a claim. The Clerk of Court is 7 || directed to enter judgment accordingly and close this case. No other documents may be 8 || filed in this now-closed case. If Jones wishes to pursue his claims, he must file a complaint 9 || in anew case. 10 It is further ordered that the application to proceed in forma pauperis (ECF No. 1) 11 || is granted. This status doesn’t relieve Jones of his obligation to pay the full $350 filing fee 12 || under the statute; it just means that he can do it in installments. And the full $350 filing 13 || fee remains due and owing even though this case is being dismissed. 14 To ensure that Jones pays the full filing fee, it is further ordered that the Nevada 15 || Department of Corrections must pay to the Clerk of the United States District Court, 16 || District of Nevada, 20% of the preceding month’s deposits to the account of Johnny 17 || Jones, #82533 (in months that the account exceeds $10.00) until the fill $350 filing fee 18 || has been paid for this action. The Clerk of Court is directed to send a copy of this order: 19 || (1) to the Finance Division of the Clerk’s Office; and (2) to the attention of Chief of Inmate 20 || Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 21 || 89702. 22 DATED THIS Day of December 2021. 24 MIRANDA M. DU 25 CHIEF UNITED STATES DISTRICT JUDGE 26 27 28