Dzik v. Johnson ( 2023 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 MITCHELL DZIK, Case No. 2:22-cv-01982-GMN-EJY 6 Plaintiff, ORDER DISMISSING AND CLOSING v. CASE 7 JOHNSON, et al., 8 Defendants. 9 10 11 Plaintiff Mitchell Dzik brings this pro se civil-rights action under 42 U.S.C. § 1983 to 12 redress constitutional violations that he claims he suffered while incarcerated at High Desert State 13 Prison. (ECF No. 1-1). Because Dzik is no longer incarcerated, on July 27, 2023, this Court 14 ordered him to file his updated address and either pay the $402 filing fee or file an application to 15 proceed in forma pauperis for a non-prisoner by August 25, 2023. (ECF No. 14). That deadline 16 has expired and Dzik did not file his updated address with the Court, either pay the filing fee or 17 apply for pauper status as a non-inmate, or otherwise respond. And the Court’s mail to Dzik has 18 been returned as undeliverable. (ECF No. 15). 19 I. DISCUSSION 20 District courts have the inherent power to control their dockets and “[i]n the exercise of 21 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 22 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 23 dismiss an action based on a party’s failure to obey a court order or comply with local rules. See 24 Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (affirming dismissal for failure to comply 25 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal 26 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order). In 27 determining 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 docket; 2 their merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 3 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 4 The first two factors, the public’s interest in expeditiously resolving this litigation and the 5 Court’s interest in managing its docket, weigh in favor of dismissal of Dzik’s claims. The third 6 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of 7 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 8 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 9 factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by 10 the factors favoring dismissal. 11 The fifth factor requires the Court to consider whether less drastic alternatives can be used 12 to correct the party’s failure that brought about the Court’s need to consider dismissal. See Yourish 13 v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic 14 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 15 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002). Courts “need not exhaust every 16 sanction short of dismissal before finally dismissing a case, but must explore possible and 17 meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because 18 litigation cannot progress without a plaintiff’s compliance with the Court’s orders, the only 19 alternative is to enter a second order setting another deadline. But entering a second order will 20 only delay the inevitable and further squander the Court’s finite resources because the likelihood 21 that the order would reach Dzik is low. Setting another deadline is not a meaningful alternative 22 given these circumstances. So, the fifth factor favors dismissal. 23 II. CONCLUSION 24 Having thoroughly considered these dismissal factors, the Court finds that they weigh in 25 favor of dismissal. It is therefore ordered that this action is dismissed without prejudice based on 26 Mitchell Dzik’s failure to file an updated address and either pay the filing fee or file an application 27 to proceed in forma pauperis in compliance with this Court’s July 27, 2023, order. The Clerk of 28 Court is directed to enter judgment accordingly and close this case. No other documents may be 2 in a new case and provide the Court with his current address and either pay the required filing fee 3 or apply for pauper status. 4 DATED: August 28, 2023 5 6 GLORIA M. NAVARRO 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28