Ho v. NDOC ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 EDMUND HO, Case No. 3:23-cv-00066-ART-CLB 5 Plaintiff, ORDER v. 6 STATE OF NEVADA, et al., 7 Defendants. 8 9 Plaintiff Edmund Ho brings this civil-rights action under 42 U.S.C. § 1983 10 to redress constitutional violations that he claims he suffered while incarcerated 11 at Ely State Prison. (ECF No. 8). On November 9, 2023, this Court ordered Ho to 12 file an amended complaint by December 11, 2023. (ECF No. 7). The Court warned 13 Ho that the action could be dismissed if he failed to file an amended complaint 14 by that deadline. (Id. at 10). That deadline expired and Ho did not file an amended 15 complaint, move for an extension, or otherwise respond. 16 DISCUSSION 17 District courts have the inherent power to control their dockets and “[i]n 18 the exercise of that power, they may impose sanctions including, where 19 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 20 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 21 on a party’s failure to obey a court order or comply with local rules. See Carey v. 22 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 23 comply with local rule requiring pro se plaintiffs to keep court apprised of 24 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 25 (dismissal for failure to comply with court order). In determining whether to 26 dismiss an action on one of these grounds, the Court must consider: (1) the 27 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 28 1 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 2 favoring disposition of cases on their merits; and (5) the availability of less drastic 3 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 4 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 5 The first two factors, the public’s interest in expeditiously resolving this 6 litigation and the Court’s interest in managing its docket, weigh in favor of 7 dismissal of Ho’s claims. The third factor, risk of prejudice to defendants, also 8 weighs in favor of dismissal because a presumption of injury arises from the 9 occurrence of unreasonable delay in filing a pleading ordered by the court or 10 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 11 1976). The fourth factor—the public policy favoring disposition of cases on their 12 merits—is greatly outweighed by the factors favoring dismissal. 13 The fifth factor requires the Court to consider whether less drastic 14 alternatives can be used to correct the party’s failure that brought about the 15 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 16 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 17 the party has disobeyed a court order does not satisfy this factor); accord 18 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002)). Courts “need not 19 exhaust every sanction short of dismissal before finally dismissing a case, but 20 must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 21 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed 22 until Ho files an amended complaint, the only alternative is to enter a second 23 order setting another deadline. But the reality of repeating an ignored order is 24 that it often only delays the inevitable and squanders the Court’s finite resources. 25 The circumstances here do not indicate that this case will be an exception 26 because Ho ignored the first order. Setting another deadline is not a meaningful 27 alternative given these circumstances. So the fifth factor favors dismissal. 28 1 || II. CONCLUSION 2 Having thoroughly considered these dismissal factors, the Court finds that 3 || they weigh in favor of dismissal. It is therefore ordered that this action is 4 || dismissed without prejudice based on Edmund Ho’s failure to file an amended 5 |} complaint in compliance with this Court’s November 9, 2023, order and for failure 6 || to state a claim. The Clerk of Court is directed to enter judgment accordingly and 7 || close this case. No other documents may be filed in this now-closed case. If 8 || Edmund Ho wishes to pursue his claims, he must file a complaint in a new case. 9 It is further ordered that the application to proceed in forma pauperis (ECF 10 || No. 1) is denied as moot. 11 12 DATED THIS 20th day of December 2023. 13 14 dun 15 fa / 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28