Patrick v. Atherton

2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA — 3 — 4 Damarcus Patrick, Case No. 2:23-cv-01567-CDS-NJK 5 Plaintiff Ordering Dismissing and Closing Case 6 v. 7 Atherton, et al., 8 Defendants — 9 — 10 Pro se plaintiff Damarcus Patrick 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 Desert 12 State Prison. ECF No. 1-1. On October 13, 2023, this court ordered Patrick to file a fully complete 13 application to proceed in forma pauperis or pay the full $402 filing fee on or before December 12, 14 2023. ECF No. 3. The court cautioned Patrick that the action could be dismissed if he failed to file 15 a fully complete application to proceed in forma pauperis with all three documents or pay the full 16 $402 filing fee for a civil action by that deadline. Id. at 2 . That deadline expired and Patrick did 17 not file a fully complete application to proceed in forma pauperis, pay the full $402 filing fee, or 18 otherwise respond. 19 I. Discussion 20 District courts have the inherent power to control their dockets and “[i]n the exercise of 21 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 22 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss 23 an action based on a party’s failure to obey a court order or comply with local rules. See Carey v. 24 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply with local 25 rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 26 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order). In determining whether 27 to dismiss an action on one of these grounds, the court must consider: (1) the public’s interest in 28 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 2 and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 3 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 4 The first two factors, the public’s interest in expeditiously resolving this 5 litigation and the court’s interest in managing its docket, weigh in favor of dismissal of Patrick’s 6 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because 7 a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 8 ordered by the court or prosecuting an action. See Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th 9 Cir. 1976). The fourth factor—the public policy favoring disposition of cases on their merits—is 10 greatly outweighed by the factors favoring dismissal. 11 The fifth factor requires me to consider whether less drastic alternatives can be used to 12 correct the party’s failure that brought about the need to consider dismissal. See Yourish v. 13 California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic 14 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 15 Pagtalunan v. Galaza, 291 F.3d 639 , 643 & n.4 (9th Cir. 2002). Courts “need not exhaust every 16 sanction short of dismissal before finally dismissing a case, but must explore possible and 17 meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this 18 court cannot operate without collecting reasonable fees, and litigation cannot progress without a 19 plaintiff’s compliance with court orders, the only alternative is to enter a second order setting 20 another deadline. But issuing a second order will only delay the inevitable and further squander 21 the court’s finite resources. Setting another deadline is not a meaningful alternative given these 22 circumstances. So the fifth factor favors dismissal. Having thoroughly considered these dismissal 23 factors, I find that they weigh in favor of dismissal. 24 II. Conclusion 25 It is therefore ordered that this action is dismissed without prejudice based on Patrick’s 26 failure to file a fully complete application to proceed in forma pauperis or pay the full $402 filing fee 27 in compliance with this court’s October 13, 2023, order. The Clerk of Court is directed to enter 28 judgment accordingly and close this case. No other documents may be filed in this now-closed 1 || case. If Patrick wishes to pursue his claims, he must file a complaint in a new case and either pay 2 || the required filing fee or properly apply for in forma pauperis status. 3 DATED: January 4, 2024 4 J, / Le _— Cristina D- Silva 6 United States District Judge — 8 — — 10 — ll — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —