Durand v. Muaro

• Court: District Court, D. Nevada
• Decided: January 6, 2023
• Docket: 3:22-cv-00406
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 ROBERTO DURAND, Case No. 3:22-cv-00406-ART-CLB

5 Plaintiff, ORDER v. 6 MUARO, 7 Defendant. 8 9 Pro se Plaintiff Roberto Durand brings this civil-rights action under 42 10 U.S.C. § 1983 to redress constitutional violations that he claims he suffered while 11 incarcerated at Ely State Prison. (ECF No. 1-1). On September 12, 2022, this 12 Court ordered Plaintiff to file a fully complete application to proceed in forma 13 pauperis or pay the full $402 filing fee on or before November 14, 2022. (ECF No. 14 3). The Court warned Plaintiff that the action could be dismissed if he failed to 15 file a fully complete application to proceed in forma pauperis, including an inmate 16 account statement for the previous six-month period, or pay the full $402 filing 17 fee by that deadline. (Id. at 2-3). The November 14, 2022 deadline expired and 18 Plaintiff did not file a fully complete application to proceed in forma pauperis or 19 pay the full $402 filing fee. 20 Because Plaintiff submitted several incomplete applications to proceed in 21 forma pauperis, the Court considered meaningful alternatives to dismissal and 22 issued another order granting Plaintiff one final opportunity to submit an inmate 23 account statement for the previous six-month period on or before December 21, 24 2022. (ECF No. 7). That deadline expired and Plaintiff still has not filed an inmate 25 account statement for the previous six-month period or paid the full $402 filing 26 fee. Nor has he asked for an extension of time to submit the required documents. 27 Instead, Plaintiff filed two more incomplete applications to proceed in forma 28 pauperis. (ECF Nos. 8, 9). 1 DISCUSSION 2 District courts have the inherent power to control their dockets, and “[i]n 3 the exercise of that power, they may impose sanctions including, where 4 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 5 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 6 on a party’s failure to obey a court order or comply with local rules. See Carey v. 7 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 8 comply with local rule requiring pro se plaintiffs to keep court apprised of 9 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 10 (dismissal for failure to comply with court order). In determining whether to 11 dismiss an action on one of these grounds, the Court must consider: (1) the 12 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 13 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 14 favoring disposition of cases on their merits; and (5) the availability of less drastic 15 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 16 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th 17 Cir. 1987)). 18 The first two factors, the public’s interest in expeditiously resolving this 19 litigation and the Court’s interest in managing its docket, weigh in favor of 20 dismissal of Plaintiff’s claims. The third factor, risk of prejudice to defendants, 21 also weighs in favor of dismissal because a presumption of injury arises from the 22 occurrence of unreasonable delay in filing a pleading ordered by the court or 23 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 24 1976). The fourth factor—the public policy favoring disposition of cases on their 25 merits—is greatly outweighed by the factors favoring dismissal. 26 The fifth factor requires the Court to consider whether less drastic 27 alternatives can be used to correct the party’s failure that brought about the 28 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 1 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 2 the party has disobeyed a court order does not satisfy this factor); accord 3 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that 4 “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted 5 pursuit of less drastic alternatives prior to disobedience of the court’s order as 6 satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 7 with the warning of dismissal for failure to comply[,]” have been “eroded” by 8 Yourish). Courts “need not exhaust every sanction short of dismissal before finally 9 dismissing a case, but must explore possible and meaningful alternatives.” 10 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 11 Because this action cannot realistically proceed until and unless Plaintiff 12 either files a fully complete application to proceed in forma pauperis or pays the 13 $402 filing fee, the only alternative is to enter a third order setting another 14 deadline. But the reality of repeating two previous orders is that it often only 15 delays the inevitable and squanders the Court’s finite resources. The 16 circumstances here do not indicate that this case will be an exception. In both of 17 its previous orders, the Court instructed Plaintiff that he must file an inmate 18 account statement for the previous six-month period. (ECF Nos. 3, 7). Following 19 the Court’s latest order, Plaintiff did not file a request for an extension of time or 20 indicate that he was having difficulty securing an inmate account statement for 21 the past six months. Instead, Plaintiff ignored the Court’s order and filed two 22 incomplete applications to proceed in forma pauperis. (ECF Nos. 8, 9). Setting a 23 third deadline is not a meaningful alternative given these circumstances. So, the 24 fifth factor favors dismissal. 25 CONCLUSION 26 Having thoroughly considered these dismissal factors, the Court finds that 27 they weigh in favor of dismissal. It is therefore ordered that this action is 28 dismissed without prejudice based on Plaintiff’s failure to file a fully complete 1 || application to proceed in forma pauperis or pay the full $402 filing fee in 2 || compliance with this Court’s September 12, 2022, and November 21, 2022, 3 || orders. The Clerk of Court is directed to enter judgment accordingly and close 4 || this case. No other documents may be filed in this now-closed case. If Plaintiff 5 || wishes to pursue his claims, he must file a complaint in a new case. 6 It is further ordered that Plaintiffs pending motions (ECF Nos. 4, 5, 6, 8, 7 || 9) are denied as moot. 8 9 DATED THIS 6th day of January 2023. 10 11 12 Ars [lostd 1m 13 ANNE R. TRAUM 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28