Burton v. Rohan

• Court: District Court, D. Nevada
• Decided: July 13, 2023
• Docket: 2:22-cv-01087
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 DAYMEYAN BURTON, Case No. 2:22-cv-01087-GMN-VCF 3 Plaintiff, ORDER 4 v.

5 C/O ROHAN, et al.,

6 Defendants.

7 Plaintiff Daymeyan Burton (“Plaintiff”) brings this civil-rights action under 42 U.S.C. 8 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 9 at Southern Desert Correctional Center (“SDCC”). (ECF No. 11 at 1.) On April 20, 2023, 10 this Court ordered Plaintiff to file either a fully complete application to proceed in forma 11 pauperis for non-prisoners or pay the full filing fee of $402 within thirty (30) days of the 12 entry of the order. (ECF No. 20.) On May 31, 2023, the Court gave Plaintiff an extension 13 until June 30, 2023, to file a fully complete application to proceed in forma pauperis for 14 non-prisoners or pay the full filing fee of $402. (ECF No. 22.) The Court warned Plaintiff 15 that the action could be dismissed if he failed to comply with the order by that deadline. 16 (Id. at 1.) That extended deadline expired and Plaintiff did not file a fully complete 17 application to proceed in forma pauperis for non-prisoners or pay the full filing fee of $402, 18 move for an extension, or otherwise respond. 19 DISCUSSION 20 District courts have the inherent power to control their dockets and “[i]n the 21 exercise of that power, they may impose sanctions including, where appropriate . . . 22 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 23 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 24 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 25 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 26 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 27 1 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 2 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 5 cases on their merits; and (5) the availability of less drastic alternatives. See In re 6 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 7 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 8 The first two factors, the public’s interest in expeditiously resolving this litigation 9 and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 10 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 11 because a presumption of injury arises from the occurrence of unreasonable delay in filing 12 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 13 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 14 cases on their merits—is greatly outweighed by the factors favoring dismissal. 15 The fifth factor requires the Court to consider whether less drastic alternatives can 16 be used to correct the party’s failure that brought about the Court’s need to consider 17 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 18 that considering less drastic alternatives before the party has disobeyed a court order 19 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 20 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 21 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 22 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 23 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 24 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 25 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 26 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 27 unless Plaintiff files a fully complete application to proceed in forma pauperis for non- 1 prisoners or pays the full filing fee of $402, the only alternative is to enter a second order 2 setting another deadline. But the reality of repeating an ignored order is that it often only 3 delays the inevitable and squanders the Court’s finite resources. The circumstances here 4 do not indicate that this case will be an exception: there is no hint that Plaintiff needs 5 additional time to comply with the Court’s order. Setting another deadline is not a 6 meaningful alternative given these circumstances. So the fifth factor favors dismissal. 7 CONCLUSION 8 Having thoroughly considered these dismissal factors, the Court finds that they 9 weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 10 prejudice based on Plaintiff’s failure to file a fully complete application to proceed in forma 11 pauperis for non-prisoners or pay the full filing fee of $402 in compliance with this Court’s 12 May 31, 2023, order. The Clerk of Court is directed to enter judgment accordingly and 13 close this case. No other documents may be filed in this now-closed case. If Plaintiff 14 wishes to pursue his claims, he must file a complaint in a new case. 15 DATED THIS _1_3_ day of July 2023.

18 Gloria M. Navarro, Judge 19 United States District Court 20 21 22 23 24 25 26 27