Garry v. Johnson ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ERIC GARRY, Case No.: 2:24-cv-01283-APG-DJA 4 Plaintiff Order 5 v. 6 CALVIN JOHNSON, et al., 7 Defendants 8 9 Plaintiff Eric Garry 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. On July 25, 2024, the Magistrate Judge ordered Garry to file an application 12 to proceed in forma pauperis, or pay the $405 filing fee, by September 25, 2024. ECF No. 3. 13 That deadline expired and Garry did not file an application to proceed in forma pauperis, pay the 14 $405 filing fee, move for an extension, or otherwise respond. 15 I. Discussion 16 District courts have the inherent power to control their dockets and “[i]n the exercise of 17 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 18 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 19 dismiss an action based on a party’s failure to obey a court order or comply with local rules. See 20 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply 21 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. 22 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court 23 order). In determining whether to dismiss an action on one of these grounds, I must consider: (1) 1 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 2 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 3 cases on their merits; and (5) the availability of less drastic alternatives. See In re 4 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone 5 v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 6 The first two factors, the public’s interest in expeditiously resolving this litigation and the 7 court’s interest in managing its docket, weigh in favor of dismissal of Garry’s claims. The third 8 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption 9 of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the 10 court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The 11 fourth factor—the public policy favoring disposition of cases on their merits—is greatly 12 outweighed by the factors favoring dismissal. 13 The fifth factor requires me to consider whether less drastic alternatives can be used to 14 correct the party’s failure that brought about the court’s need to consider dismissal. See Yourish 15 v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic 16 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 17 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive 18 force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives 19 prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial 20 granting of leave to amend coupled with the warning of dismissal for failure to comply[,]” have 21 been “eroded” by Yourish). Courts “need not exhaust every sanction short of dismissal before 22 finally dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. 23 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed 1} until and unless Garry pays the $405 filing fee or files an application to proceed in forma 2|| pauperis, the only alternative is to enter a second order setting another deadline. But the reality 3|| of repeating an 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 Garry 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 7\| fifth factor favors dismissal. IT. Conclusion 9 Having thoroughly considered these dismissal factors, I find that they weigh in favor of 10|| dismissal. I therefore ordered that this action is dismissed without prejudice based on Garry’s 11}| failure to file a fully complete application to proceed in forma pauperis or pay the full $405 12|| filing fee in compliance with the Magistrate Judge’s July 25, 2024, order. The Clerk of Court is 13]| directed to enter judgment accordingly and close this case. No other documents may be filed in 14|| this now-closed case. If Garry wishes to pursue his claims, he must file a complaint in a new case. 16 17 Dated: October 15, 2024 18 G- □□ Chief U.S. District Judge 19 20 21 22 23