Durand v. Muaro

• Court: District Court, D. Nevada
• Decided: October 4, 2022
• Docket: 3:22-cv-00338
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:22-cv-00338-MMD-CLB

7 Plaintiff, ORDER v. 8

9 MUARO,

10 Defendant.

12 13 Pro se Plaintiff Roberto Durand brings this civil rights action under 42 U.S.C. 14 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 15 at Ely State Prison. (ECF No. 1-1.) On August 1, 2022, this Court denied Durand’s 16 application to proceed in forma pauperis because it was incomplete. (ECF No. 3.) The 17 Court explained that Durand’s application was incomplete because he had “not submitted 18 a financial certificate or an inmate account statement for the previous six-month period.” 19 (Id. at 1.) The Court also identified all three documents Durand was required to submit to 20 proceed in forma pauperis. (Id. at 1-3.) The Court gave Durand until September 27, 2022, 21 to file a fully complete application to proceed in forma pauperis or pay the $402 filing fee. 22 (Id. at 1, 2-3.) And the Court warned Durand that it could dismiss this action if he failed to 23 timely file a complete application or pay the full filing fee. (Id. at 3.) 24 Durand responded by filing two applications to proceed in forma pauperis that are 25 incomplete because they do not contain an inmate account statement for the previous 26 six-month period. (ECF Nos. 4, 5.) Durand has not moved for an extension of time to file 27 a complete application to proceed in forma pauperis, and he has not indicated that he has 28 experienced any difficulty in obtaining an inmate account statement. 2 District courts have the inherent power to control their dockets, and “[i]n the 3 exercise of that power, they may impose sanctions including, where appropriate . . . 4 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 5 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 6 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 7 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 8 keep court apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 9 1987) (dismissal for failure to comply with court order). In determining whether to dismiss 10 an action on one of these grounds, the Court must consider: (1) the public’s interest in 11 expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk 12 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 13 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 14 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 15 The first two factors—the public’s interest in expeditiously resolving this litigation 16 and the Court’s interest in managing its docket—weigh in favor of dismissal of Durand’s 17 claims. The third factor—risk of prejudice to defendants—also weighs in favor of dismissal 18 because a presumption of injury arises from the occurrence of unreasonable delay in filing 19 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 20 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 21 cases on their merits—is greatly outweighed by the factors favoring dismissal. 22 The fifth factor requires the Court to consider whether less drastic alternatives can 23 be used to correct the party’s failure that brought about the Court’s need to consider 24 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 25 that considering less drastic alternatives before the party has disobeyed a court order 26 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 27 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 28 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 1 || order as satisfying this element[,]” /.e., like the “initial granting of leave to amend coupled 2 || with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 3 || Courts “need not exhaust every sanction short of dismissal before finally dismissing a 4 || case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 5 || F.2d 1421, 1424 (9th Cir. 1986). Because the Court cannot function without collecting 6 || reasonable fees and this action cannot realistically proceed until and unless Durand either 7 || files a fully complete application to proceed in forma pauperis or pays the $402 filing fee, 8 || the only alternative is to enter a second order setting another deadline. But the reality of 9 || repeating an ignored order is that it often only delays the inevitable and squanders the 10 || Court's finite resources. The circumstances here do not indicate that this case will be an 11 || exception: there is no indication that Durand did not receive the Court's order or needs 12 || additional time to obtain a six-month account statement. Setting another deadline is not 13 || a meaningful alternative given these circumstances. So the fifth factor also favors 14 || dismissal. 15 || I. CONCLUSION 16 Having thoroughly considered these dismissal factors, the Court finds that they 17 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 18 || prejudice based on Durand’s failure to file a fully complete application to proceed in forma 19 || pauperis or pay the full $402 filing fee in compliance with the Court’s August 1, 2022 20 || order. The Clerk of Court is directed to enter judgment accordingly and close this case. 21 || No other documents may be filed in this now-closed case. If Durand wishes to pursue his 22 || claims, he must file a complaint in a new case. 23 || Itis further ordered that the applications to proceed in forma pauperis (ECF Nos. 4, 5) are 24 || denied as incomplete and moot. 25 DATED THIS 4" Day of October 2022.

27 MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE