Garry v. Bean

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 REMOH GARRY, Case No.: 2:23-cv-1655-GMN-EJY

4 Plaintiff Dismissal Order

5 v.

6 BEAN, et al.,

7 Defendants

9 Plaintiff Remoh Garry (“Plaintiff”) brings this civil-rights action under 42 U.S.C. 10 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 11 at High Desert State Prison (“HDSP”). (ECF No. 6 at 1.) The Court filed the screening 12 order on April 29, 2024, and ordered Plaintiff to file an amended complaint by May 29, 13 2024. (ECF No. 5 at 8–9.) Plaintiff failed to file the amended complaint, so the Court 14 dismissed this action without prejudice. (ECF No. 9.) The Court reopened the case after 15 Plaintiff requested another extension to file the amended complaint. (ECF No. 12.) Failing 16 to file the amended complaint, Plaintiff filed two more motions requesting extensions of 17 time. (ECF Nos. 13, 15.) The Court granted both motions. (ECF Nos. 14, 16). In the final 18 order granting Plaintiff an extension, the Court stated it would be Plaintiff’s final 19 opportunity to file the amended complaint. (ECF No 16.) The Court warned Plaintiff that 20 the action could be dismissed if he failed to file an amended complaint by December 2, 21 2024. (Id.) That deadline expired, and Plaintiff did not file an amended complaint, move 22 for an extension, or otherwise respond. 23 1 I. Discussion 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 Service, 833 F.2d 128, 130 (9th 9 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 10 dismiss an action on one of these grounds, I 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 v. U.S. Postal

15 Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 16 The first two factors, the public’s interest in expeditiously resolving this litigation 17 and the court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 18 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 19 because a presumption of injury arises from the occurrence of unreasonable delay in filing 20 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 21 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 22 cases on their merits—is greatly outweighed by the factors favoring dismissal. 23 The fifth factor requires me to consider whether less drastic alternatives can be used to correct the party’s failure that brought about the court’s need to consider 1 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 2 that considering less drastic alternatives before the party has disobeyed a court order 3 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 4 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that

5 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 6 order as 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 Yourish). 8 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 9 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 10 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 11 unless Plaintiff files an amended complaint, the only alternative is to enter a fourth order 12 setting another deadline. But the reality of repeating an ignored order is that it often only 13 delays the inevitable and squanders the Court’s finite resources. The circumstances here 14 do not indicate that this case will be an exception: there is no hint that Plaintiff needs

15 additional time or evidence that he did not receive the screening order. Setting another 16 deadline is not a meaningful alternative given these circumstances. So the fifth factor 17 favors dismissal. 18 II. Conclusion 19 Having thoroughly considered these dismissal factors, the Court finds that they 20 weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 21 prejudice based on Plaintiff’s failure to file an amended complaint in compliance with this 22 Court’s many orders granting extensions. (ECF Nos. 12, 14, 16.) Plaintiff failed to file an 23 amended complaint by the latest deadline of December 2, 2024. The Clerk of Court is directed to enter judgment accordingly and close this case. No other documents may be l}filed in this now-closed case. If Plaintiff wishes to pursue his claims, he must file a 2|| complaint in a new case and provide the Court with his current address. 3 Finally, the Court orders that the application to proceed in forma pauperis (ECF 4!|No. 1) is denied as moot. 5 Dated: December 10, 2024 “fp, 6 Jj {Tv sae M. Navarro, Judge 7 Unjtea State District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23