Maturino v. Sanft ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Adrian Tremillo Maturino, Case No. 2:24-cv-00350-JAD-BNW 5 Plaintiff, REPORT AND RECOMMENDATION 6 v. 7 Michael Sanft, et al., 8 Defendants. 9 10 On April 1, 2024, the Court ordered Plaintiff to either file an in forma pauperis 11 application or pay the filing fee. ECF No. 3. The Court then granted Plaintiff’s motion for a 45- 12 day extension to comply with the order. ECF No. 5. After the extended deadline passed, the Court 13 issued another minute order giving Plaintiff until July 8, 2024, to file the in forma pauperis 14 application or pay the fee. ECF No. 6. It warned Plaintiff that failure to comply with the order 15 may result in the Court recommending that the case be dismissed. Id. Despite this, Plaintiff has 16 neither filed the application nor paid the fee. Accordingly, the Court recommends that this case be 17 dismissed without prejudice. 18 The law permits a district court to dismiss an action based on a party’s failure to prosecute 19 his case or comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest 20 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant 21 to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply 22 with the rules of civil procedure or the court’s orders). In determining whether to dismiss an 23 action, the court must consider: (1) the public’s interest in expeditious resolution of litigation; (2) 24 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 25 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 26 alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 27 (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 1 The first two factors, the public’s interest in expeditiously resolving this litigation and the 2 court’s interest in managing its docket, weigh in favor of dismissing Plaintiff’s claims. The third 3 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of 4 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 5 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 6 factor—the public policy favoring disposition of cases on their merits— weighs against dismissal. 7 The fifth factor requires the court to consider whether less drastic alternatives can be used 8 to correct the party’s failure that brought about the court’s need to consider dismissal. Courts 9 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 10 explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 11 Cir. 1986). Because Plaintiff has failed to file an in forma pauperis application or pay the filing 12 fee, despite a 45-day extension and two court orders telling him to do so, the only alternative is to 13 enter a third order directing Plaintiff to comply. The circumstances here do not indicate that 14 Plaintiff needs additional time nor is there evidence that he did not receive the Court’s two 15 previous orders. So, the fifth factor favors dismissal. 16 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 17 of El Monte, 138 F.3d 393 (9th Cir. 1998) (holdings dismissal is proper where least four factors 18 support dismissal or where at least three factors “strongly” support dismissal). 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 IT IS THEREFORE RECOMMENDED that THIS ACTION BE DISMISSED 2 || without prejudice for failure to comply with multiple court-ordered deadlines. 3 4 NOTICE 5 This report and recommendation is submitted to the United States district judge assigned 6 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 7 || may file a written objection supported by points and authorities within fourteen days of being 8 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 9 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 10 1157 (9th Cir. 1991). 1] 12 DATED: July 24, 2024 13 14 so bea Are bat BRENDA WEKSLER 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28