Everly v. State of Nevada

• Court: District Court, D. Nevada
• Decided: June 30, 2023
• Docket: 2:23-cv-00562
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JARED EVERLY, Case No. 2:23-cv-00562-RFB-BNW

7 Plaintiff, v. ORDER 8 STATE OF NEVADA, et al., 9 Defendants. 10

11 12 Plaintiff Jared Everly brings this civil-rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at Southern 14 Desert Correctional Center. (ECF No. 1-1). On April 20, 2023, this Court ordered Everly 15 to file a fully complete application to proceed in forma pauperis or pay the full $402 filing 16 fee on or before June 20, 2023. (ECF No. 4). The Court warned Everly that the action 17 could be dismissed if he failed to file a fully complete application to proceed in forma 18 pauperis with all three documents or pay the full $402 filing fee for a civil action by that 19 deadline. (Id. at 2). That deadline expired and Everly did not file a fully complete 20 application to proceed in forma pauperis, pay the full $402 filing fee, or otherwise respond. 21 I. DISCUSSION 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 25 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 26 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 27 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 28 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 2 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 5 cases on their merits; and (5) the availability of less drastic alternatives. See In re 6 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 7 Malone, 833 F.2d at 130). 8 The first two factors, the public’s interest in expeditiously resolving this litigation 9 and the Court’s interest in managing its docket, weigh in favor of dismissal of Everly’s 10 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 11 because a presumption of injury arises from the occurrence of unreasonable delay in filing 12 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 13 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 14 cases on their merits—is greatly outweighed by the factors favoring dismissal. 15 The fifth factor requires the Court to consider whether less drastic alternatives can 16 be used to correct the party’s failure that brought about the Court’s need to consider 17 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 18 that considering less drastic alternatives before the party has disobeyed a court order 19 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 20 Cir. 2002). Courts “need not exhaust every sanction short of dismissal before finally 21 dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. 22 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this Court cannot operate without 23 collecting reasonable fees, and litigation cannot progress without a plaintiff’s compliance 24 with court orders, the only alternative is to enter a second order setting another deadline. 25 But issuing a second order will only delay the inevitable and further squander the Court’s 26 finite resources because its first order was ignored. Setting another deadline is not a 27 meaningful alternative given these circumstances. So the fifth factor favors dismissal. 28 1 After thoroughly considering these dismissal factors, the Court finds that they 2 || weigh in favor of dismissal. 3 || Ul. CONCLUSION 4 IT IS THEREFORE ORDERED that this action is dismissed without prejudice 5 || based on Plaintiff's failure to file a fully complete application to proceed in forma pauperis 6 || or pay the full $402 filing fee in compliance with this Court’s April 20, 2023 Order. The 7 || Clerk of Court is directed to enter judgment accordingly and close this case. No other 8 || documents may be filed in this now-closed case. If Jared Everly wishes to pursue his 9 || claims, he must file a complaint in a new case and either pay the required filing fee or 10 || properly apply for in forma pauperis status. 11 IT IS FURTHER ORDERED that the application to proceed in forma pauperis (ECF 12 || No. 3) is DENIED. 13 IT IS FURTHER ORDERED that Plaintiff may move to reopen this case and vacate 14 || the judgment by filing a motion for reconsideration of this order. In this motion, the Plaintiff 15 || is required to explain what circumstances delayed him from paying the filing fee or filing 16 || the application to proceed in forma pauperis and a complaint in compliance with LSR 2- 17 || 1. If the Court finds there to be good cause or a reasonable explanation therein, the Court 18 || will reopen the case and vacate the judgment. 19 DATED: June 30, 2023

21 inant RICHARD F. BOULWARE, II 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28