Fair v. State of Nevada

2 DISTRICT OF NEVADA 3 * * * 4 TERENCE FAIR, Case No. 2:22-cv-00603-GMN-EJY 5 Plaintiff, ORDER DISMISSING AND CLOSING v. CASE [6] NEVADA STATE, et al., [7] Defendants. [9] 10 Plaintiff Terence Fair brings this civil-rights action under 42 U.S.C. § 1983 to 11 redress constitutional violations that he claims he suffered while incarcerated at High 12 Desert State Prison. (ECF No. 1-1). On April 19, 2022, this Court ordered Fair to file a 13 fully complete application to proceed in forma pauperis (“IFP”) or pay the full $402 filing 14 fee by June 20, 2022. (ECF No. 3). That deadline expired and Fair did not apply to 15 proceed IFP, pay the full $402 filing fee, or otherwise respond. 16 I. DISCUSSION 17 District courts have the inherent power to control their dockets and “[i]n the 18 exercise of that power, they may impose sanctions including, where appropriate . . . 19 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 , 831 20 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 21 order or comply with local rules. See Carey v. King, 856 F.2d 1439 , 1440–41 (9th Cir. 22 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 23 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 24 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 25 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 26 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 27 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 28 cases on their merits; and (5) the availability of less drastic alternatives. See In re 2 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 3 The first two factors, the public’s interest in expeditiously resolving this litigation 4 and the Court’s interest in managing its docket, weigh in favor of dismissing Fair’s claims. 5 The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because 6 a presumption of injury arises from the occurrence of unreasonable delay in filing a 7 pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 8 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 9 cases on their merits—is greatly outweighed by the factors favoring dismissal. 10 The fifth factor requires the Court to consider whether less drastic alternatives can 11 be used to correct the party’s failure that brought about the Court’s need to consider 12 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 992 (9th Cir. 1999) (explaining 13 that considering less drastic alternatives before the party has disobeyed a court order 14 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639 , 643 & n.4 (9th 15 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 16 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 17 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 18 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 19 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 20 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 21 F.2d 1421 , 1424 (9th Cir. 1986). This Court cannot operate without collecting reasonable 22 fees, so this action cannot proceed until Fair either files a fully complete IFP application 23 or pays the $402 filing fee for a civil action. The only alternative to dismissal here is to 24 enter a second order setting another deadline. But the reality of repeating an ignored 25 order is that it often only delays the inevitable and squanders the Court’s finite resources. 26 The circumstances here do not indicate that this case will be an exception: Fair has not 27 stated that he needs additional time and there is no evidence he did not receive the [28] 2 circumstances. So the fifth factor favors dismissal. 3 II. CONCLUSION 4 Having thoroughly considered these dismissal factors, the Court finds that they 5 favor dismissal. It is therefore ordered that this action is dismissed without prejudice 6 based on Fair’s failure to either file a fully complete application to proceed in forma 7 pauperis or pay the full $402 filing fee in compliance with this Court’s April 19, 2022, order. 8 The Clerk of Court is directed to enter judgment accordingly and close this case. No other 9 documents may be filed in this now-closed case. If Fair wishes to pursue his claims, he 10 must file a complaint in a new case. [11] 12 DATED THIS 6th day of August 2022. [13] 14 ___ UNITED STATES DISTRICT JUDGE