Durand v. Maritza

— 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERTO DURAND, Case 3:22-cv-00371-MMD-CLB 7 Plaintiff, ORDER v. — 8 — MARITZA, — 9 — Defendant. — 10 — — 11 — 12 Pro Se Plaintiff Roberto Durand brings this civil-rights action under 42 U.S.C. 13 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 14 at Ely State Prison. (ECF No. 1-1.) On September 15, 2022, this Court ordered Durand 15 to file a fully complete application to proceed in forma pauperis (“IFP application”) or pay 16 the full $402.00 filing fee on or before November 15, 2022. (ECF No. 3.) Durand was 17 warned the action could be dismissed if he failed to file a fully complete IFP application 18 with all three documents or pay the full $402.00 filing fee for a civil action by that deadline. 19 (Id. at 3.) When the November 15, 2022, deadline expired, Durand had not filed a fully 20 complete IFP application or paid the full $402.00 filing fee. 21 Durand submitted three incomplete applications to proceed in forma pauperis, 22 which were each missing an inmate account statement for the previous six-month period. 23 (ECF Nos. 4, 5, 6.) The Court considered meaningful alternatives to dismissal and issued 24 another order on November 22, 2022, granting Durand one final opportunity to submit a 25 fully complete IFP application that included an inmate account statement for the previous 26 six-month period by the deadline of January 23, 2023. (ECF No. 7.) On November 29, 27 2022, and December 1, 2022, Durand once again submitted two incomplete IFP 28 applications that did not include an inmate account statement for the previous six-month 2 still has not filed a fully complete IFP application or paid the full $402.00 filing fee. 3 District courts have the inherent power to control their dockets and “[i]n the 4 exercise of that power, they may impose sanctions including, where appropriate . . . 5 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 , 831 6 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 7 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 8 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 9 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 10 Cir. 1987) (affirming dismissal for failure to comply with court order). In determining 11 whether to dismiss an action on one of these grounds, the Court must consider: (1) the 12 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 13 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 14 of cases on their merits; and (5) the availability of less drastic alternatives. See In re 15 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 16 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 17 The first two factors, the public’s interest in expeditiously resolving this litigation 18 and the Court’s interest in managing its docket, weigh in favor of dismissal of Durand’s 19 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 20 because a presumption of injury arises from the occurrence of unreasonable delay in filing 21 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 22 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 23 cases on their merits—is greatly outweighed by the factors favoring dismissal. 24 The fifth factor requires the Court to consider whether less drastic alternatives can 25 be used to correct the party’s failure that brought about the Court’s need to consider 26 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 992 (9th Cir. 1999) (explaining 27 that considering less drastic alternatives before the party has disobeyed a court order 28 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639 , 643 & n.4 (9th 1 || Cir. 2002) (explaining that “the persuasive force of’ earlier Ninth Circuit cases that 2 || “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 3 || order as satisfying this element[,]” e., like the “initial granting of leave to amend coupled 4 || with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 5 || Courts “need not exhaust every sanction short of dismissal before finally dismissing a 6 || case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 7 || F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 8 || unless Durand either files a fully complete IFP application or pays the $402.00 filing fee 9 || for a civil action, the only alternative is to enter a third order setting another deadline. But 10 || the reality of repeating two ignored orders is that it often only delays the inevitable and 11 || squanders the Court’s finite resources. The circumstances here do not indicate that this 12 || case will be an exception: there is no hint that Durand needs additional time or evidence 13 || that he did not receive the Court’s order. Setting a third deadline is not a meaningful 14 || alternative given these circumstances. The fifth factor thus favors dismissal. Having 15 || thoroughly considered these dismissal factors, the Court finds that they weigh in favor of 16 || dismissal. 17 It is therefore ordered that this action is dismissed without prejudice based on 18 || Plaintiff Roberto Durana’s failure to file a fully complete IFP application or pay the full 19 || $402.00 filing fee in compliance with this Court’s September 15, 2022, and November 22, 20 || 2022, orders. 21 It is further ordered that Durand’s incomplete applications to proceed in forma 22 || pauperis (ECF Nos. 8, 9) are denied. 23 It is further ordered that the Clerk of Court is directed to enter judgment accordingly 24 || and close this case. No other documents may be filed in this now-closed case. If Durand 25 || wishes to pursue his claims, Durand must file a complaint in a new case. 26 DATED THIS 7" Day of February 2023. — 28 — MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE