Durand v. Daniels

• Court: District Court, D. Nevada
• Decided: March 16, 2021
• Docket: 3:21-cv-00002
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:21-cv-00002-MMD-WGC

7 Plaintiff, ORDER v. 8 CHARLES DANIELS, et al., 9 Defendants. 10

11 This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 12 by Roberto Durand, a prisoner incarcerated at Ely State Prison. (ECF Nos. 1, 1-1.) On 13 January 6, 2021, the Court issued an order denying the Plaintiff’s application to proceed 14 in forma pauperis, without prejudice, because the application was incomplete. (ECF No. 15 4 at 2.) The Court ordered Plaintiff to file a fully complete application to proceed in forma 16 pauperis or pay the full filing fee of $402 on or before March 8, 2021, 2021. (Id. at 2). On 17 January 11, 2021, Plaintiff filed a motion for appointment of counsel (ECF No. 5) and a 18 financial certificate (ECF No. 6). Then on January 13, 2021, Plaintiff filed a second 19 incomplete application to proceed in forma pauperis that was still missing the required 20 inmate account statement for the previous six-month period. (ECF No. 7.) The March 8, 21 2021 deadline has now expired, and Plaintiff has not filed a fully complete application to 22 proceed in forma pauperis or paid the full $402 filing fee. 23 District courts have the inherent power to control their dockets and “[i]n the 24 exercise of that power, they may impose sanctions including, where appropriate . . . 25 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 26 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 27 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 28 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 2 (affirming dismissal for failure to comply with an order requiring amendment of complaint); 3 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 4 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 5 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming dismissal for failure 6 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 7 (affirming dismissal for lack of prosecution and failure to comply with 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 the defendants; (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 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 21 disposition of cases on their merits—is greatly outweighed by the factors in favor of 22 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 23 the 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 Plaintiff to file another application to proceed in forma 26 pauperis or pay the full $402 filing fee on or before March 8, 2021 expressly stated: “IT 27 IS FURTHER ORDERED that, if Plaintiff 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 March 8, 2021, this case will be subject to dismissal without 2 || prejudice for Plaintiff to refile the case with the Court, under a new case number, when 3 || Plaintiff has all three documents needed to file a complete application to proceed in forma 4 || pauperis or pays the the full $402 filing fee." (ECF No. 4 at 3). Thus, Plaintiff had adequate 5 || warning that dismissal would result from noncompliance with the Court’s order to file 6 || another application to proceed in forma pauperis or pay the full $402 filing fee on or before 7 || March 8, 2021. 8 It is therefore ordered that this action is dismissed without prejudice based on 9 || Plaintiffs failure to file a fully complete application to proceed in forma pauperis or pay 10 || the full $402 filing fee in compliance with this Court’s order dated January 6, 2021. (ECF 11 No. 4). 12 It is further ordered that pending motions (ECF Nos. 5 and 7) are denied as moot. 13 The Clerk of Court is directed to enter judgment accordingly and close the case. 14 || No other documents may be filed in this now-closed case. 15 DATED THIS 16" Day of March 2021.

17 / MIRANDA M. DU 18 CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28