Welch v. Wilson ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 KENTRELL D. WELCH, Case No. 2:24-cv-00460-RFB-NJK 7 Plaintiff, ORDER v. 8 DEWAYNE WILSON, et al., 9 Defendants. 10 11 12 Plaintiff Kentrell D. Welch brings this civil-rights action under 42 U.S.C. § 1983 to redress 13 constitutional violations that he claims he suffered while incarcerated in the custody of the Nevada 14 Department of Corrections. (ECF No. 1-1.) On March 12, 2024, this Court ordered Welch to file 15 a fully complete application to proceed in forma pauperis or pay the full $405 filing fee on or 16 before May 13, 2024. (ECF No. 3.) The Court warned Welch that the action could be dismissed if 17 he failed to file a fully complete application to proceed in forma pauperis with all three documents 18 or pay the full $405 filing fee for a civil action by that deadline. (Id. at 2.) The Court’s order came 19 back as undeliverable to the address that Welch provided. Welch has not filed a fully complete 20 application to proceed in forma pauperis, paid the full $405 filing fee, filed an updated address, or 21 otherwise responded to the Court’s order. 22 I. DISCUSSION 23 District courts have the inherent power to control their dockets and “[i]n the exercise of 24 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 25 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 26 dismiss an action based on a party’s failure to obey a court order or comply with local rules. See 27 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply 28 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal 2 determining whether to dismiss an action on one of these grounds, the Court 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 v. 7 U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 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 Welch’s claims. The third 10 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of 11 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 12 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 13 factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by 14 the factors favoring dismissal. 15 The fifth factor requires the Court to consider whether less drastic alternatives can be used 16 to 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) (explaining that “the persuasive 20 force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives 21 prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting 22 of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been 23 “eroded” by Yourish). Courts “need not exhaust every sanction short of dismissal before finally 24 dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 25 779 F.2d 1421, 1424 (9th Cir. 1986). 26 Because this action cannot realistically proceed until and unless Welch either files a fully 27 complete application to proceed in forma pauperis or pays the $405 filing fee for a civil action, 28 the only alternative is to enter a second order setting another deadline. But the reality of repeating 1 || an ignored order is that it often only delays the inevitable and squanders the Court’s finite 2 || resources. The circumstances here do not indicate that this case will be an exception: the Court’s 3 || previous order came back as undeliverable, and Plaintiff has not provided an updated address. 4 || Thus, it is unlikely that Welch would receive a second order setting another deadline. Setting 5 || another deadline is not a meaningful alternative given these circumstances. So the fifth factor 6 || favors dismissal. 7 || OL CONCLUSION 8 Having thoroughly considered these dismissal factors, the Court finds that they weigh in 9 || favor of dismissal. 10 IT IS THEREFORE ORDERED that this action is dismissed without prejudice based on 11 || Welch’s failure to file a fully complete application to proceed in forma pauperis or pay the full 12 || $405 filing fee in compliance with this Court’s March 12, 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 Welch wishes to pursue his claims, he must file a complaint in a new case. 15 IT IS FURTHER ORDERED that Plaintiff may move to reopen this case and vacate the 16 || judgment by filing a motion for reconsideration of this order. In this motion, the Plaintiff is 17 || required to explain what circumstances delayed him from paying the filing fee or filing the 18 || application to proceed in forma pauperis and a complaint in compliance with LSR 2-1. If the Court 19 || finds there to be good cause or a reasonable explanation therein, the Court will reopen the case 20 || and vacate the judgment. 21 22 DATED: June 3, 2024 24 RICHARD F. BOULWARE, II 25 UNITED STATES DISTRICT JUDGE 26 27 28