Nevius v. Nevada Dept. of Corrections ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 THOMAS S. NEVIUS, Case No. 2:24-cv-00795-JAD-NJK 5 Plaintiff v. 6 Order Dismissing NEVADA DEPT. OF CORRECTIONS, et. and Closing Case 7 al., 8 Defendants 9 Plaintiff Thomas S. Nevius brings this civil-rights lawsuit to redress constitutional 10 violations that he claims he suffered while incarcerated in the custody of the Nevada Department 11 of Corrections. On May 6, 2024, this court ordered the plaintiff to file a complaint and either 12 pay the $405 filing fee or file a complete application to proceed in forma pauperis by July 5, 13 2024.1 That deadline expired, and plaintiff did not file a complaint, pay the fee, file an in forma 14 pauperis application, or seek to extend the deadline to do so. 15 District courts have the inherent power to control their dockets and “[i]n the exercise of 16 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.2 A 17 court may dismiss an action based on a party’s failure to obey a court order or comply with local 18 rules.3 In determining whether to dismiss an action on this ground, the court must consider: (1) 19 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 20 21 1 ECF No. 3. 22 2 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 3 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 23 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 1 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 2 cases on their merits; and (5) the availability of less drastic alternatives.4 3 The first two factors, the public’s interest in expeditiously resolving this litigation and the 4 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The 5 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 6 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 7 action.5 The fourth factor—the public policy favoring disposition of cases on their merits—is 8 greatly outweighed by the factors favoring dismissal. 9 The fifth factor requires the court to consider whether less drastic alternatives can be used 10 to correct the party’s failure that brought about the court’s need to consider dismissal.6 Courts 11 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 12 explore possible and meaningful alternatives.”7 Because this court cannot operate without 13 collecting reasonable fees, and litigation cannot progress without a plaintiff’s compliance with 14 the court’s order, the only alternative is to enter a second order setting another deadline. But 15 issuing a second order will only delay the inevitable and further squander the court’s finite 16 17 18 4 In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 19 5 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 20 6 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before the party has disobeyed a court order does not satisfy this factor); 21 accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic 22 alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of dismissal for failure to 23 comply[,]” have been “eroded” by Yourish). 7 Henderson, 779 F.2d at 1424. l}}resources. Setting another deadline is not a meaningful alternative given these circumstances. 2|| So the fifth factor favors dismissal. 3 Having thoroughly weighed these dismissal factors, I find that they weigh in favor of dismissal. IT IS THEREFORE ORDERED that THIS ACTION IS DISMISSED without prejudice based on the plaintiff's failure to file a complaint and pay the filing fee or seek to 6|| proceed in forma pauperis in compliance with the court’s order. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. If Thomas S. Nevius wishes 8|| to pursue his claims, he must file a complaint in a new case, and he must file a complaint and pay 9|| the fee for that action or file a complete application to proceed in forma pauperis. 10 Dated: August 5, 2024 Does U.S. District Fudge Jenifer A. Dorsey 1] 12 13 14 15 16 17 18 19 20 21 22 23