Christian v. United States ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Eric Leon Christian, Case No. 2:24-cv-00842-CDS-BNW 5 Plaintiff, REPORT AND RECOMMENDATION 6 v. 7 United States of America, 8 Defendant. 9 10 On May 1, 2024, Plaintiff moved to proceed in forma pauperis but did not attach a 11 complaint with his application, as required by LSR 1-4 and Federal Rule of Civil Procedure 3. 12 ECF No. 1. Five days later, the Court ordered that Plaintiff submit a complaint by June 3, 2024. 13 ECF No. 3. That order warned Plaintiff that his case would be dismissed if he failed to file a 14 complaint by that deadline. Id. On June 10, 2024, one week after the deadline to file his complaint 15 had passed, the Court again ordered Plaintiff to file a complaint. ECF No. 13. It gave him an 16 additional 30 days to do so. Id. As of today, Plaintiff has still not filed a complaint, even though 17 the deadline passed almost two weeks ago. As a result, the Court recommends that this case be 18 dismissed without prejudice. 19 The law permits a district court to dismiss an action based on a party’s failure to prosecute 20 his case or comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest 21 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant 22 to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply 23 with the rules of civil procedure or the court’s orders); see also Ferdik v. Bonzelet, 963 F.2d 1258, 24 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 25 complaint). In determining whether to dismiss an action, the court must consider: (1) the public’s 26 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 27 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 1 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 2 130 (9th Cir. 1987)). 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 dismissing Plaintiff’s claims. The third 5 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of 6 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 7 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 8 factor—the public policy favoring disposition of cases on their merits— weighs against 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. Courts 11 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 12 explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 13 Cir. 1986). Because this action cannot proceed without a complaint, the only alternative is to 14 enter a third order setting another deadline. The circumstances here do not indicate that Plaintiff 15 needs additional time nor is there evidence that he did not receive this Court’s previous two 16 orders. Setting another deadline is not a meaningful alternative given these circumstances. So, the 17 fifth factor favors dismissal. 18 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 19 of El Monte, 138 F.3d 393 (9th Cir. 1998) (holdings dismissal is proper where least four factors 20 support dismissal or where at least three factors “strongly” support dismissal). 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 IT IS THEREFORE RECOMMENDED that THIS ACTION BE DISMISSED for 2 || failure to file a complaint by the court-ordered deadline. 3 NOTICE 4 This report and recommendation is submitted to the United States district judge assigned 5 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 6 || may file a written objection supported by points and authorities within fourteen days of being 7 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 8 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 9 || 1157 (th Cir. 1991). 10 1] DATED: July 22, 2024 12 Li a le Wr eon, BRENDA WEKSLER 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28