Divens v. Williams ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 EMILE DIVENS, Case No.: 2:24-cv-00942-APG-BNW 4 Plaintiff Order 5 v. 6 JULIE WILLIAMS, et al., 7 Defendants 8 9 Plaintiff Emile Divens brings this civil-rights action under 42 U.S.C. § 1983 to redress 10 constitutional violations that he claims he suffered while incarcerated at High Desert State 11 Prison. ECF No. 1-1. On June 3, 2024, the magistrate judge ordered Divens to file a fully 12 complete application to proceed in forma pauperis or pay the full $405 filing fee on or before 13 July 3, 2024. ECF No. 3. The magistrate judge warned Divens that the action could be dismissed 14 if he failed to file a fully complete application to proceed in forma pauperis with all three 15 documents or pay the full $405 filing fee for a civil action by that deadline. Id. at 2. That 16 deadline expired and Divens did not file a fully complete application to proceed in forma 17 pauperis, pay the full $402 filing fee, or otherwise respond. 18 I. Discussion 19 District courts have the inherent power to control their dockets and “[i]n the exercise of 20 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 21 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 22 dismiss an action based on a party’s failure to obey a court order or comply with local rules. See 23 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. 1 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court 2 order). In determining whether to dismiss an action on one of these grounds, I must consider: (1) 3 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 4 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 5 cases on their merits; and (5) the availability of less drastic alternatives. See In re 6 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 7 833 F.2d at 130). 8 The first two factors, the public’s interest in expeditiously resolving this litigation and the 9 court’s interest in managing its docket, weigh in favor of dismissal of Divens’s claims. The third 10 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption 11 of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the 12 court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The 13 fourth factor—the public policy favoring disposition of cases on their merits—is greatly 14 outweighed by the factors favoring dismissal. 15 The fifth factor requires me to consider whether less drastic alternatives can be used to 16 correct the party’s failure that brought about the court’s need to consider dismissal. See Yourish 17 v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic 18 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 19 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002). Courts “need not exhaust every 20 sanction short of dismissal before finally dismissing a case, but must explore possible and 21 meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because 22 this action cannot realistically proceed until and unless Divens either files a fully complete 23 application to proceed in forma pauperis or pays the $405 filing fee for a civil action, the only alternative is to enter a second order setting another deadline. But the reality of repeating an 2\|ignored order is that it often only delays the inevitable and squanders the court’s finite resources. The circumstances here do not indicate that this case will be an exception: there is no hint that Divens needs additional time or evidence that he did not receive the court’s order. Setting another deadline is not a meaningful alternative given these circumstances. So the fifth factor 6|| favors dismissal. II. Conclusion 8 Having thoroughly considered these dismissal factors, I find that they weigh in favor of 9}| dismissal. It is therefore ordered that this action is dismissed without prejudice based on 10|| Divens’s failure to file a fully complete application to proceed in forma pauperis or pay the full filing fee in compliance with the magistrate judge’s June 3, 2024, order. The Clerk of Court directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. If Divens wishes to pursue his claims, he must file a complaint in a new case. 15 Dated: July 17, 2024 16 U.S. District Judge 17 18 19 20 21 22 23