Durand v. Cooke

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ROBERTO DURAND, Case No. 3:22-cv-00404-ART-CSD 6 Plaintiff, ORDER DISMISSING AND CLOSING 7 v. CASE

8 T. COOKE, et al., (ECF Nos. 5, 6)

9 Defendants.

10 11 Plaintiff Roberto Durand brings this civil-rights action under 42 U.S.C. 12 § 1983 to redress constitutional violations that he claims he suffered while 13 incarcerated at Ely State Prison. (ECF No. 1-1.) On October 6, 2022, this Court 14 ordered Durand to file a fully complete application to proceed in forma pauperis 15 (“IFP”) or pay the full $402 filing fee on or before December 5, 2022. (ECF No. 4). 16 The Court warned Durand that this action could be dismissed without prejudice 17 if he failed to file a new fully complete IFP application with all three documents 18 or pay the full $402 filing fee for a civil action by that deadline. (Id. at 2). That 19 deadline expired and Durand did not file a fully complete IFP application or pay 20 the full $402 filing fee. Rather, Durand filed two IFP applications that are 21 incomplete because Durand did not submit an inmate account statement for the 22 previous six-month period. (ECF Nos. 5, 6). This is the same deficiency that the 23 Court identified about Durand’s earlier IFP applications. (ECF No. 4 at 1.) 24 I. DISCUSSION 25 District courts have the inherent power to control their dockets and “[i]n 26 the exercise of that power, they may impose sanctions including, where 27 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 28 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 2 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 4 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 5 (dismissal for failure to comply with court order). In determining whether to 6 dismiss an action on one of these grounds, the Court must consider: (1) the 7 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 8 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 9 favoring disposition of cases on their merits; and (5) the availability of less drastic 10 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 11 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 12 The first two factors, the public’s interest in expeditiously resolving this 13 litigation and the Court’s interest in managing its docket, weigh in favor of 14 dismissal of Durand’s claims. The third factor, risk of prejudice to defendants, 15 also weighs in favor of dismissal because a presumption of injury arises from the 16 occurrence of unreasonable delay in filing a pleading ordered by the court or 17 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 18 1976). The fourth factor—the public policy favoring disposition of cases on their 19 merits—is greatly outweighed by the factors favoring dismissal. 20 The fifth factor requires the Court to consider whether less drastic 21 alternatives can be used to correct the party’s failure that brought about the 22 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 23 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 24 the party has disobeyed a court order does not satisfy this factor); accord 25 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that 26 “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted 27 pursuit of less drastic alternatives prior to disobedience of the court’s order as 28 satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 1 || with the warning of dismissal for failure to comply|,]” have been “eroded” by 2 || Yourish). Courts “need not exhaust every sanction short of dismissal before 3 || finally dismissing a case, but must explore possible and meaningful 4 || alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 5 || Because this action cannot realistically proceed until and unless Durand either 6 || files a fully complete application to proceed in forma pauperis or pays the $402 7 || filing fee for a civil action, the only alternative is to enter a second order setting 8 || another deadline. But the reality of repeating an ignored order is that it often 9 || only delays the inevitable and squanders the Court’s finite resources. 10 The circumstances here do not indicate that this case will be an exception: 11 || Durand has repeatedly failed to correct the singular deficiency that the Court 12 || clearly identified with his IFP applications. Setting another deadline is not a 13 || meaningful alternative given these circumstances. So the fifth factor favors 14 || dismissal. Having thoroughly considered these dismissal factors, the Court finds 15 || that they weigh in favor of dismissal. 16 || II. CONCLUSION 17 It is therefore ordered that the applications to proceed in forma pauperis 18 || (ECF Nos. 5, 6) are denied. 19 It is further ordered that this action is dismissed without prejudice based 20 || on Plaintiff Roberto Durand’s failure to file a fully complete application to proceed 21 || in forma pauperis or pay the full $402 filing fee in compliance with this Court’s 22 || October 6, 2022, order. The Clerk of Court is directed to enter judgment 23 || accordingly and close this case. No other documents may be filed in this now- 24 || closed case. If Durand wishes to pursue his claims, he must file a complaint in 25 || a new case and either pay the filing fee or properly apply for pauper status. 26 DATED THIS 14th day of December 2022. 27 Awe jlosed 1 28 ANNER.TRAUM UNITED STATES DISTRICT JUDGE