Ho v. Dzurenda

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 EDMUND HO, Case No. 3:24-cv-00239-MMD-CSD 7 Plaintiff, ORDER v. [8] JAMES DZURENDA, et al., [9] Defendants. [10] 11 Plaintiff Edmund Ho brings this civil rights action under 42 U.S.C. § 1983 to redress 12 constitutional violations that he claims he suffered while incarcerated at Ely State Prison. 13 (ECF No. 12.) On January 21, 2025, the Court ordered Ho to file an amended complaint 14 by February 20, 2025. (ECF No. 11.) The Court warned Ho that the action could be 15 dismissed if he failed to file an amended complaint by that deadline. (Id. at 8, 10.) That 16 deadline expired and Ho did not file an amended complaint, move for an extension, or 17 otherwise respond. 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 20 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 21 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey 22 a court order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th 23 Cir. 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs 24 to keep court apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th 25 Cir. 1987) (affirming dismissal for failure to comply with court order). In determining 26 whether to dismiss an action on one of these grounds, the Court must consider: (1) the 27 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 28 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 2 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 3 Malone, 833 F.2d at 130 ). 4 The first two factors, the public’s interest in expeditiously resolving this litigation 5 and the Court’s interest in managing its docket, weigh in favor of dismissal of Ho’s claims. 6 The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal because 7 a presumption of injury arises from the occurrence of unreasonable delay in filing a 8 pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 9 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 10 cases on their merits—is greatly outweighed by the factors favoring dismissal. 11 The fifth factor requires the Court to consider whether less drastic alternatives can 12 be used to correct the party’s failure that brought about the Court’s need to consider 13 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 992 (9th Cir. 1999) (explaining 14 that considering less drastic alternatives before the party has disobeyed a court order 15 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639 , 643 & n.4 (9th 16 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 17 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 18 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 19 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 20 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 21 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 22 F.2d 1421 , 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 23 unless Ho files an amended complaint, the only alternative is to enter a second order 24 setting another deadline. But the reality of repeating an ignored order is that it often only 25 delays the inevitable and squanders the Court’s finite resources. The circumstances here 26 do not indicate that this case will be an exception: there is no hint that Ho needs additional 27 time or evidence that he did not receive the Court’s screening order. Setting another [28] 1 || deadline is not a meaningful alternative given these circumstances. So the fifth factor 2 || favors dismissal. 3 Having thoroughly considered these dismissal factors, the Court finds that they 4 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 5 || prejudice based on Ho’s failure to file an amended complaint in compliance with the 6 || Court’s January 21, 2025, order and for failure to state a claim. The Clerk of Court is 7 || kindly requested to enter judgment accordingly and close this case. No other documents 8 || may be filed in this now-closed case. If Ho wishes to pursue his claims, he must file a 9 || complaint in a new case. 10 It is further ordered that Ho’s application to proceed in forma pauperis (ECF No. 1) 11 || is granted. Ho is not required to pay an initial installment fee, but the full $350.00 filing 12 || fee will still be paid in installments under 28 U.S.C. § 1915 . 13 It is further ordered that, under 28 U.S.C. § 1915 , the Nevada Department of 14 || Corrections will forward payments from the account of Edmund Ho, #89285 to the Clerk 15 || of the United States District Court, District of Nevada, at a rate of 20% of the preceding 16 || month’s deposits (in months that the account exceeds $10.00) until the full $350.00 filing 17 || fee has been paid for this action. The Clerk of Court is kindly requested to send a copy of 18 || this order to the Finance Division of the Clerk’s Office and to the Chief of Inmate Services 19 || for the Nevada Department of Corrections at formapauperis@doc.nv.gov. 20 DATED THIS 5" Day of March 2025. [22] MIRANDA M. DU 23 UNITED STATES DISTRICT JUDGE