Durand v. Johnson

• Court: District Court, D. Nevada
• Decided: October 6, 2021
• Docket: 3:21-cv-00322
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:21-cv-00322-MMD-WGC

7 Plaintiff, ORDER v. 8 N. JOHNSON, et al., 9 Defendants. 10

11 On August 3, 2021, this Court issued an order directing pro se Plaintiff Roberto 12 Durand to file a fully complete application to proceed in forma pauperis or pay the full 13 $402 filing fee on or before September 28, 2021. (ECF No. 3.) On August 17, 2021, 14 Durand filed an incomplete application to proceed in forma pauperis that did not include 15 the required financial certificate or inmate account statement for the previous six-month 16 period. (ECF No. 4.) The September 28, 2021, deadline has now expired, and Durand 17 has not filed a fully complete application to proceed in forma pauperis, nor has he paid 18 the full $402 filing fee. 19 District courts have the inherent power to control their dockets and “[i]n the 20 exercise of that power, they may impose sanctions including, where appropriate . . . 21 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 22 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 23 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 24 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for 25 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 26 (affirming dismissal for failure to comply with an order requiring amendment of complaint); 27 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 28 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 2 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 3 (affirming dismissal for lack of prosecution and failure to comply with local rules). 4 In determining whether to dismiss an action for lack of prosecution, failure to obey 5 a court order, or failure to comply with local rules, the court must consider several factors: 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 7 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 8 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 9 See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 10 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 11 Here, the Court finds that the first two factors, the public’s interest in expeditiously 12 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 13 dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 14 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 15 in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air 16 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring 17 disposition of cases on their merits—is greatly outweighed by the factors in favor of 18 dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 19 the court’s order will result in dismissal satisfies the “consideration of alternatives” 20 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 21 at 1424. The Court’s order requiring Durand to file a fully complete application to proceed 22 in forma pauperis or pay the full $402 filing fee on or before September 28, 2021 expressly 23 stated: “IT IS FURTHER ORDERED that, if Plaintiff does not file a fully complete 24 application to proceed in forma pauperis with all three documents or pay the full $402 25 filing fee for a civil action on or before September 28, 2021, this case will be subject to 26 dismissal without prejudice for Plaintiff to refile the case with the Court, under a new case 27 number, when Plaintiff is has all three documents needed to file a complete application 28 to proceed in forma pauperis or pays the the full $402 filing fee.” (ECF No. 3 at 3). Thus, 1 || Durand had adequate warning that dismissal would result from noncompliance with the 2 || Court’s order to file a fully complete application to proceed in forma pauperis or pay the 3 || full $402 filing fee on or before September 28, 2021. 4 It is therefore ordered that this action is dismissed without prejudice based on 5 || Durand’s failure to file a fully complete application to proceed in forma pauperis or pay 6 || the full $402 filing fee in compliance with this Court’s order (ECF No. 3) dated August 3, 7 || 2021. 8 It is further ordered that Durand’s pending motions (ECF Nos. 4, 5) are denied as 9 |} moot. 10 The Clerk of Court is directed to close the case. No other documents may be filed 11 || in this now-closed case. 12 DATED THIS 6" Day of October 2021. 13 {Sn MIRANDA M. DU 15 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28