Garry v. Bean ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 REMOH GARRY, Case No.: 2:23-cv-01655-GMN-EJY 4 Plaintiff Dismissal Order 5 v. 6 BEAN, et al., 7 Defendants 8 9 Plaintiff Remoh Garry (“Plaintiff”) brings this civil-rights action under 42 U.S.C. 10 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 11 at High Desert State Prison (“HDSP”). (ECF No. 6 at 1.) The Court filed the screening 12 order on April 29, 2024, and ordered Plaintiff to file an amended complaint by May 29, 13 2024. (ECF No. 5 at 8–9.) The Court warned Plaintiff that the action could be dismissed 14 if he failed to file an amended complaint by that deadline. (Id.) That deadline expired, 15 and Plaintiff did not file an amended complaint, move for an extension, or otherwise 16 respond. 17 I. Discussion 18 District courts have the inherent power to control their dockets and “[i]n the 19 exercise of that power, they may impose sanctions including, where appropriate . . . 20 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 21 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 22 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 23 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 1 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 2 dismiss an action on one of these grounds, I must consider: (1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 4 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 5 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 6 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal 7 Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 8 The first two factors, the public’s interest in expeditiously resolving this litigation 9 and the court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 10 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 11 because a presumption of injury arises from the occurrence of unreasonable delay in filing 12 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 13 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 14 cases on their merits—is greatly outweighed by the factors favoring dismissal. 15 The fifth factor requires me to consider whether less drastic alternatives can be 16 used to correct the party’s failure that brought about the court’s need to consider 17 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 18 that considering less drastic alternatives before the party has disobeyed a court order 19 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 20 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 21 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 22 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 23 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 1] Courts “need not exhaust every sanction short of dismissal before finally dismissing a but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and unless Plaintiff files an amended complaint, the only alternative is to enter a second order setting another deadline. But the reality of repeating an ignored order is that it often only 6|| delays the inevitable and squanders the Court's finite resources. The circumstances here not indicate that this case will be an exception: there is no hint that Plaintiff needs 8] additional time or evidence that he did not receive the screening order. Setting another deadline is not a meaningful alternative given these circumstances. So the fifth factor favors dismissal. Conclusion 12 Having thoroughly considered these dismissal factors, | find that they weigh in 13||favor of dismissal. It is therefore ordered that this action is dismissed without prejudice 14||based on Plaintiff's failure to file an amended complaint in compliance with this Court’s 29, 2024, screening order. The Clerk of Court is directed to enter judgment 16||accordingly and close this case. No other documents may be filed in this now-closed 17|| case. If Plaintiff wishes to pursue his claims, he must file a complaint in a new case and 18|| provide the Court with his current address. 19 Finally, | order that the application to proceed in forma pauperis (ECF Nos. 1) is 20|| denied as moot. 21 Dated: June 4, 2024 22 □□ hy, — Gloria Navarro, Judge 23 United\Siate District Court