Parkes v. State of Nevada ( 2023 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT E. PARKES, Case No. 3:23-cv-00015-RCJ-CSD 7 Plaintiff, ORDER v. 8 STATE OF NEVADA, et al., 9 Defendants. 10 11 12 Plaintiff Robert E. Parkes brings this civil-rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated with the 14 Nevada Department of Corrections. (ECF No. 1-1). On January 11, 2013, this Court 15 ordered Plaintiff to file a fully complete application to proceed in forma pauperis or pay 16 the full $402 filing fee on or before March 13, 2023. (ECF No. 3). The Court warned 17 Plaintiff that the action could be dismissed if he failed to file a fully complete application 18 to proceed in forma pauperis with all three documents or pay the full $402 filing fee for a 19 civil action by that deadline. (Id. at 2). That deadline expired and Plaintiff did not file a 20 fully complete application to proceed in forma pauperis, pay the full $402 filing fee, or 21 otherwise respond. 22 I. DISCUSSION 23 District courts have the inherent power to control their dockets and “[i]n the 24 exercise of that power, they may impose sanctions including, where appropriate . . . 25 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 26 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 27 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 28 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 2 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 3 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 4 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 5 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 6 cases on their merits; and (5) the availability of less drastic alternatives. See In re 7 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 8 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 9 The first two factors, the public’s interest in expeditiously resolving this litigation 10 and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 11 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 12 because a presumption of injury arises from the occurrence of unreasonable delay in filing 13 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 14 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 15 cases on their merits—is greatly outweighed by the factors favoring dismissal. 16 The fifth factor requires the Court to consider whether less drastic alternatives can 17 be used to correct the party’s failure that brought about the Court’s need to consider 18 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 19 that considering less drastic alternatives before the party has disobeyed a court order 20 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 21 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 22 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 23 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 24 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 25 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 26 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 27 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 28 unless Plaintiff either files a fully complete application to proceed in forma pauperis or 1 || pays the $402 filing fee for a civil action, the only alternative is to enter a second order 2 || setting another deadline. But the reality of repeating an ignored order is that it often only 3 || delays the inevitable and squanders the Court's finite resources. The circumstances here 4 || do not indicate that this case will be an exception: there is no hint that Plaintiff needs 5 || additional time or evidence that he did not receive the Court’s order. Setting another 6 || deadline is not a meaningful alternative given these circumstances. So the fifth factor 7 || favors dismissal. 8 || Ul. CONCLUSION 9 Having thoroughly considered these dismissal factors, the Court finds that they 10 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 11 || prejudice based on Plaintiff's failure to file a fully complete application to proceed in forma 12 || pauperis or pay the full $402 filing fee in compliance with this Court’s January 11, 2023, 13 || order. The Clerk of Court is directed to enter judgment accordingly and close this case. 14 || No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his 15 || claims, he must file a complaint in a new case. 16 17 DATED THIS _30th_ day of March 2023. 18 - ; 19 . UNFTED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28