Durand v. Baker

• Court: District Court, D. Nevada
• Decided: October 7, 2021
• Docket: 3:21-cv-00249
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:21-cv-00249-MMD-WGC

7 Plaintiff, ORDER v. 8 RENEE BAKER,

9 Defendant.

10 11 On June 2, 2021, the Court issued an order directing pro se Plaintiff Roberto 12 Durand to file a fully complete application to proceed in forma pauperis (“IFP”) or pay the 13 full $402.00 filing fee on or before August 2, 2021. (ECF No. 3.) On June 11, 2021, Durand 14 filed an incomplete IFP application that did not include the required inmate account 15 statement for the previous six-month period. (ECF No. 5.) On August 10, 2021, the Court 16 granted Durand one final opportunity to file a fully complete IFP application or pay the full 17 $402.00 filing fee on or before September 28, 2021. (ECF No. 6.) Thereafter, on August 18 17, 2021, Durand filed a second incomplete IFP application again without the required 19 inmate account statement for the previous six-month period. (ECF No. 7.) The September 20 28, 2021 deadline has now expired, and Durand has not filed a fully complete IFP 21 application or paid the full $402.00 filing fee. 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 25 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 26 prosecute an action, failure to obey a court order, or failure to comply with local rules. See 27 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 2 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 3 comply with local rule requiring pro se plaintiffs to keep court apprised of address); 4 Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (affirming 5 dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 6 1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with 7 local rules). 8 In determining whether to dismiss an action for lack of prosecution, failure to obey 9 a court order, or failure to comply with local rules, the Court must consider several factors: 10 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to 11 manage its docket; (3) the risk of prejudice to Defendant; (4) the public policy favoring 12 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 13 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 14 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 15 Here, the Court finds that the first two factors, the public’s interest in expeditiously 16 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 17 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 18 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 19 in filing a pleading ordered by the Court or prosecuting an action. See Anderson v. Air 20 W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition 21 of cases on their merits—is greatly outweighed by the factors in favor of dismissal 22 discussed herein. Finally, a court’s warning to a party that his or her failure to obey the 23 court’s order will result in dismissal satisfies the “consideration of alternatives” 24 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 25 at 1424. The Court’s order requiring Durand to file a fully complete IFP application or pay 26 the full $402.00 filing fee on or before September 28, 2021 expressly stated: “IT IS 27 FURTHER ORDERED that, if [Durand] does not file a fully complete application to 28 proceed in forma pauperis with all three documents or pay the full $402 filing fee for a 1| civil action on or before September 28, 2021, this case will be subject to dismissal without 2 prejudice for [Durand] to refile the case with the Court, under a new case number, when 3 [Durand] is has all three documents needed to file a complete application to proceed in 4| forma pauperis or pays the the full $402 filing fee.” (ECF No. 6 at 3.) Thus, Durand had adequate warning dismissal would result from noncompliance with the Court's order to 6 | file a fully complete application to proceed in forma pauperis or pay the full $402.00 filing 7 | fee on or before September 28, 2021. 8 It is therefore ordered that this action is dismissed without prejudice based on 9} Plaintiff Roberto Durand’s failure to file a fully complete application to proceed in forma pauperis or pay the full $402.00 filing fee in compliance with the Court’s order dated August 10, 2021. (ECF No. 6.) 12 It is further ordered that all pending motions (ECF Nos. 7, 8) are denied as moot. 13 The Clerk of Court is directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. 15 DATED THIS 7" Day of October 2021. 16 17 4 ( ) _ 18 MIRANBA M. DU 19 CHIEF UNITED STATES DISTRICT JUDGE

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