Barbee v. Dzurenda

— 1 — — 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA — 5 — TIANNE BARBEE, Case No. 2:24-cv-02361-GMN-DJA — 6 — Plaintiff, ORDER 7 v. 8 JAMES DZURENDA, et al., 9 Defendants. — 10 — 11 Plaintiff Tianne Barbee brings this civil-rights action under 42 U.S.C. § 1983 to 12 redress constitutional violations that he claims he suffered while incarcerated at High 13 Desert State Prison. (ECF No. 1-1.) On January 10, 2025, this Court ordered Barbee to 14 file a fully complete application to proceed in forma pauperis or pay the full $405 filing fee 15 on or before March 11, 2025. (ECF No. 3). The Court warned Barbee that the action 16 could be dismissed if he failed to file a fully complete application to proceed in forma 17 pauperis with all three documents or pay the full $405 filing fee for a civil action by that 18 deadline. (Id. at 2). That deadline expired, and Barbee did not file a fully complete 19 application to proceed in forma pauperis, pay the full $405 filing fee, or otherwise respond. 20 I. DISCUSSION 21 District courts have the inherent power to control their dockets and “[i]n the 22 exercise of that power, they may impose sanctions including, where appropriate . . . 23 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 , 831 24 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 25 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 26 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 27 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, the Court must consider: (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (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 7 Malone v. 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 9 and the Court’s interest in managing its docket, weigh in favor of dismissal of Barbee’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 the Court to consider whether less drastic alternatives can 16 be 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). 24 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 25 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 26 F.2d 1421 , 1424 (9th Cir. 1986). Because this action cannot realistically proceed until 27 and unless Barbee either files a fully complete application to proceed in forma pauperis 1 || or pays the $405 filing fee for a civil action, the only alternative is to enter a second order 2 || setting another deadline. But the reality of repeating an ignored order is that it often only 3 || delays the inevitable and squanders the Court’s finite resources. The circumstances here 4 || do not indicate that this case will be an exception: there is no hint that Barbee needs 5 || additional time or evidence that he did not receive the Court's order. Setting another 6 || deadline is not a meaningful alternative given these circumstances. So the fifth factor 7 || favors dismissal. 8 || Ul. CONCLUSION 9 Having thoroughly considered these dismissal factors, the Court finds that they 10 || weigh in favor of dismissal. It is therefore Ordered that this action is dismissed without 11 || prejudice based on Barbee’s failure to file a fully complete application to proceed in forma 12 || pauperis or pay the full $405 filing fee in compliance with this Court’s January 10, 2025, 13 || Order. The Clerk of Court is kindly requested to enter judgment accordingly and close 14 || this case. No other documents may be filed in this now-closed case. If Barbee wishes to 15 || pursue his claims, he must file a complaint in a new case. — 16 — 7 DATED THIS 19 day of March 2025. Yj, 18 inf oY Gloria M. Navarro, Judge 19 Un i States District Court — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —