Garrett v. Yee

2 DISTRICT OF NEVADA [3] 4 JERALD GARRETT, Case No. 2:22-cv-01189-CDS-NJK 5 Plaintiff ORDER v. [6] 7 DR. YEE, et al., 8 Defendants [9] 10 Pro se Plaintiff Jerald Garrett brings this civil-rights action under 42 U.S.C. § 1983 to 11 redress constitutional violations that he claims he suffered while incarcerated at Southern 12 Desert Correctional Center. ECF No. 6. On September 2, 2022, this Court gave Plaintiff thirty 13 days to file an amended complaint. ECF No. 5 at 10. The Court warned Plaintiff that the action 14 could be dismissed without prejudice if he failed to file an amended complaint by that deadline. [15] Id. The deadline expired, and Plaintiff did not file an amended complaint, move for an extension, 16 or otherwise respond. 17 I. DISCUSSION 18 District courts have the inherent power to control their dockets, and “[i]n the exercise of 19 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 20 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss 21 an action based on a party’s failure to obey a court order or comply with local rules. See Carey v. 22 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply with local 23 rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 24 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order). In determining 25 whether to 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; (3) the 27 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 28 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine Prod. Liab. 2 Cir. 1987)). 3 The first two factors, the public’s interest in expeditiously resolving this litigation and 4 the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s claims. The 5 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 6 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 7 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 8 1976). The fourth factor—the public policy favoring disposition of cases on their merits—is 9 greatly outweighed by the factors favoring dismissal. 10 The fifth factor requires the Court to consider whether less drastic alternatives can be 11 used to correct the party’s failure that brought about the Court’s need to consider dismissal. See 12 Yourish v. Cal. Amplifier, 191 F.3d 983 , 992 (9th Cir. 1999) (explaining that considering less drastic 13 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 14 Pagtalunan v. Galaza, 291 F.3d 639 , 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive 15 force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives 16 prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial 17 granting of leave to amend coupled with the warning of dismissal for failure to comply[,]” have 18 been “eroded” by Yourish). Courts “need not exhaust every sanction short of dismissal before 19 finally dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. 20 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until 21 and unless Plaintiff files an amended complaint, the only alternative is to enter a second order 22 setting another deadline. But the reality of repeating an ignored order is that it often only delays 23 the inevitable and squanders the Court’s finite resources. The circumstances here do not 24 indicate that this case will be an exception: there is no hint that Plaintiff needs additional time 25 or evidence that he did not receive the Court’s September 2, 2022, order. Setting another 26 deadline is not a meaningful alternative given these circumstances. Thus, the fifth factor favors 27 dismissal. [28] 2 Having thoroughly considered these dismissal factors, the Court finds that they weigh in 3 favor of dismissal. It is therefore ordered that this action is dismissed without prejudice based 4 on Plaintiff’s failure to file an amended complaint in compliance with this Court’s September 2, 5 2022, order. The Clerk of Court is directed to enter judgment accordingly and close this case. No 6 other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his claims, he 7 must file a complaint in a new case. 8 It is further ordered that the application to proceed in forma pauperis without having to 9 prepay the filing fee (ECF Nos. 1, 4) is GRANTED. Plaintiff need not pay an initial installment 10 fee, prepay fees or costs, or provide security for fees or costs, but he is still required to pay the 11 full $350 filing fee under 28 U.S.C. § 1915 , as amended. This full filing fee remains due and owing 12 even though this case is being dismissed. 13 In order to ensure that Plaintiff pays that filing fee, it is further ordered that the Nevada 14 Department of Corrections must forward payments from the account of Jerald Garrett, #88447 15 to the Clerk of the United States District Court, District of Nevada, 20% of the preceding 16 month’s deposits (in months that the account exceeds $10.00) until the full $350 filing fee has 17 been paid for this action. The Clerk is directed to SEND copies of this order to the Finance 18 Division of the Clerk’s Office and to the attention of Chief of Inmate Services for the Nevada 19 Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 20 DATED: October 11, 2022 [22] UNITED STATES DISTRICT JUDGE