Fernandez v. Jones

2 DISTRICT OF NEVADA — 3 — KEVIN FERNANDEZ, Case No. 3:21-cv-00522-RCJ-CSD — 4 — Plaintiff, ORDER 5 v. 6 DAWN JONES, et al., 7 Defendants. — 8 — 9 Plaintiff Kevin Fernandez brings this civil-rights action under 42 U.S.C. § 1983 to 10 redress constitutional violations that he claims he suffered while incarcerated at Ely State 11 Prison. (ECF No. 1-1.) On May 19, 2022, this Court ordered Fernandez to file an amended 12 complaint by June 18, 2022. (ECF No. 8.) The Court warned Fernandez that the action 13 could be dismissed if he failed to file an amended complaint by that deadline. (Id. at 6.) 14 That deadline expired and Fernandez did not file an amended complaint, move for an 15 extension, 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, 833 F.2d at 130 ). 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 Fernandez’s 5 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 6 because a presumption of injury arises from the occurrence of unreasonable delay in filing 7 a 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). Because this action cannot realistically proceed until and 22 unless Fernandez files an amended complaint, the only alternative is to enter a second 23 order setting another deadline. But the reality of repeating an ignored order is that it often 24 only delays the inevitable and squanders the Court’s finite resources. The circumstances 25 here do not indicate that this case will be an exception: there is no hint that Fernandez 26 needs additional time or evidence that he did not receive the Court’s screening order. 27 Setting another deadline is not a meaningful alternative given these circumstances. So 28 the fifth factor favors dismissal. 1 |/ I. CONCLUSION 2 Having thoroughly considered these dismissal factors, the Court finds that they 3 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 4 || prejudice based on Fernandez’s failure to file an amended complaint in compliance with 5 || this Court’s May 19, 2022, order and for failure to state a claim. The Clerk of Court is 6 || directed to enter judgment accordingly and close this case. No other documents may be 7 || filed in this now-closed case. If Fernandez wishes to pursue his claims, he must file a 8 || complaint in a new case. 9 It is further ordered that Fernandez’s motions for various relief (ECF Nos. 6, 7) are 10 || denied as moot. 11 It is further ordered that Fernandez’s application to proceed in forma pauperis 12 || (ECF No. 4) is granted. Fernandez shall not be required to pay an initial installment of 13 || the filing fee. In the event that this action is dismissed, the full filing fee must still be paid 14 || pursuant to 28 U.S.C. § 1915 (b)(2). It is further ordered that Fernandez is permitted to 15 || maintain this action to conclusion without the necessity of prepayment of any additional 16 || fees or costs or the giving of security therefor. 17 It is further ordered that Pursuant to 28 U.S.C. § 1915 , as amended by the Prison 18 || Litigation Reform Act, the Nevada Department of Corrections will forward payments from 19 || the account of Kevin Fernandez, # 1191576 to the Clerk of the United States District 20 || Court, District of Nevada, 20% of the preceding month's deposits (in months that the 21 || account exceeds $10.00) until the full $350 filing fee has been paid for this action. The 22 || Clerk of the Court will send a copy of this order to the Finance Division of the Clerk’s 23 || Office. The Clerk will send a copy of this order to the attention of Chief of Inmate Services 24 || for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. — 25 — 26 DATED THIS 2%h day of December 2022 — 28 — UNITED STATES DISTRICT JUDGE