Durand v. Milke ( 2023 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERTO DURAND, Case No. 3:22-cv-00153-RCJ-CSD 7 Plaintiff, ORDER v. 8 MILKE, 9 Defendant. 10 11 12 Plaintiff Roberto Durand brings this civil-rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at Ely State 14 Prison. (ECF No. 1-1.) On April 13, 2022, this Court ordered Plaintiff to file a fully complete 15 application to proceed in forma pauperis or pay the full $402 filing fee for a civil action on 16 or before June 13, 2022. (ECF No. 5 at 2.) The Court warned Plaintiff that the action could 17 be dismissed if he failed to file a fully complete application to proceed in forma pauperis, 18 including an inmate account statement for the previous six-month period, or pay the full 19 $402 filing fee for a civil action by that deadline. (Id. at 3.) That deadline expired and 20 Plaintiff did not file a fully complete application to proceed in forma pauperis or pay the 21 full $402 filing fee. 22 Because Plaintiff submitted several incomplete applications to proceed in forma 23 pauperis, the Court considered meaningful alternatives to dismissal and issued another 24 order granting Plaintiff one final opportunity to submit an inmate account statement for 25 the previous six-month period on or before August 5, 2022. (ECF No. 8.) That deadline 26 expired and Plaintiff still has not filed an inmate account statement for the previous six- 27 month period or paid the full $402 filing fee. Nor has Plaintiff asked for an extension. 28 2 (ECF No. 9.) 3 I. DISCUSSION 4 District courts have the inherent power to control their dockets, and “[i]n the 5 exercise of that power, they may impose sanctions including, where appropriate . . . 6 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 7 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 8 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 9 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 10 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 11 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 12 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 13 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 14 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 15 cases on their merits; and (5) the availability of less drastic alternatives. See In re 16 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 17 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 18 The first two factors, the public’s interest in expeditiously resolving this litigation 19 and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 20 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 21 because a presumption of injury arises from the occurrence of unreasonable delay in filing 22 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 23 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 24 cases on their merits—is greatly outweighed by the factors favoring dismissal. 25 The fifth factor requires the Court to consider whether less drastic alternatives can 26 be used to correct the party’s failure that brought about the Court’s need to consider 27 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 28 that considering less drastic alternatives before the party has disobeyed a court order 2 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 3 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 4 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 5 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 6 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 7 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 8 F.2d 1421, 1424 (9th Cir. 1986). 9 Because this action cannot realistically proceed until and unless Plaintiff either files 10 a fully complete application to proceed in forma pauperis or pays the $402 filing fee for a 11 civil action, the only alternative is to enter a third order setting another deadline. But the 12 reality of repeating two previous orders is that it often only delays the inevitable and 13 squanders the Court’s finite resources. The circumstances here do not indicate that this 14 case will be an exception. In both of its previous orders, the Court instructed Plaintiff that 15 he must file an inmate account statement for the previous six-month period. (ECF Nos. 16 5, 8.) Following the Court’s latest order, Plaintiff did not file a request for an extension of 17 time or indicate that he was having difficulty securing an inmate account statement for the 18 past six months. Instead, Plaintiff ignored the Court’s order and filed another incomplete 19 application to proceed in forma pauperis. (ECF No. 9.) Setting a third deadline is not a 20 meaningful alternative given these circumstances. So, the fifth factor favors dismissal 21 II. CONCLUSION 22 Having thoroughly considered these dismissal factors, the Court finds that they 23 weigh in favor of dismissal. 24 IT IS ORDERD that this action is dismissed without prejudice based on Plaintiff’s 25 failure to file a fully complete application to proceed in forma pauperis or pay the full $402 26 filing fee in compliance with this Court’s April 13, 2022 and July 6, 2022, orders. 27 28 1 IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment 2 || accordingly and close this case. No other documents may be filed in this now-closed 3 || case. If Plaintiff wishes to pursue his claims, he must file a complaint in a new case. 4 IT IS FURTHER ORDERED that Plaintiff's pending motions (ECF Nos. 6, 7, 9) are 5 || denied as moot. 6 7 DATED THIS 18" day of January 2023. 9 . 10 UNITED STAT ISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28