In Re Roberto Durand

• Court: District Court, D. Nevada
• Decided: August 7, 2023
• Docket: 3:23-cv-00202
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 In re ROBERTO DURAND, Case No. 3:23-cv-00202-MMD-CSD

7 Plaintiff, ORDER

8 9 I. SUMMARY 10 Pro se Plaintiff Roberto Durand, an inmate in the custody of the Nevada 11 Department of Corrections, has not filed a complaint and either paid the full $402 filing 12 fee or filed a fully complete application to proceed in forma pauperis (“IFP”) in this action. 13 On June 5, 2023, this Court denied Durand’s first and second IFP applications because 14 he did not include an inmate trust fund account statement for the previous six-month 15 period with either application, and the Court ordered Durand to file a complaint and either 16 pay the full filing fee or file a new fully complete IFP application by August 4, 2023. (ECF 17 No. 6.) The Court warned Durand this action could be dismissed if he failed to file a 18 complaint and either pay the required filing fee or file a complete IFP application with all 19 three documents by that deadline. (Id. at 2.) That deadline expired, and Durand did not 20 file a complaint and either pay the required filing fee or file a fully complete IFP application. 21 Durand instead filed a third IFP application that is incomplete because he again failed to 22 include an inmate trust fund account statement for the previous six-month period. (ECF 23 No. 7.) 24 II. DISCUSSION 25 District courts have the inherent power to control their dockets and “[i]n the 26 exercise of that power, they may impose sanctions including, where appropriate . . . 27 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 28 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 2 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 3 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 4 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 5 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 6 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 7 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 8 cases on their merits; and (5) the availability of less drastic alternatives. See In re 9 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 10 Malone, 833 F.2d at 130). 11 The first two factors, the public’s interest in expeditiously resolving this litigation 12 and the Court’s interest in managing its docket, weigh in favor of dismissing this action. 13 The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because 14 a presumption of injury arises from the occurrence of unreasonable delay in filing a 15 pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 16 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 17 cases on their merits—is greatly outweighed by the factors favoring dismissal. 18 The fifth factor requires the Court to consider whether less drastic alternatives can 19 be used to correct the party’s failure that brought about the Court’s need to consider 20 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 21 that considering less drastic alternatives before the party has disobeyed a court order 22 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 23 Cir. 2002)). Courts “need not exhaust every sanction short of dismissal before finally 24 dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. 25 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this Court cannot operate without 26 collecting reasonable fees, and litigation cannot progress without a complaint and a 27 plaintiff’s compliance with the Court’s orders, the only alternative is to enter a second 28 order setting another deadline. But issuing a second order will only delay the inevitable 1 || and further squander the Court’s finite resources because Durand ignored the first order. 2 || Setting another deadline is not a meaningful alternative given these circumstances. So 3 || the fifth factor favors dismissal. || Ill. CONCLUSION 5 Having thoroughly considered these dismissal factors, the Court finds that they 6 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 7 || prejudice based on Roberto Durand’s failure to file a complaint and either pay the full 8 || $402 filing fee or file a fully complete application to proceed in forma pauperis in 9 || compliance with this Court’s June 5, 2023, order. 10 The Clerk of Court is directed to enter judgment accordingly and close this case. 11 || No other documents may be filed in this now-closed case. If Roberto Durand wishes to 12 || pursue his claims, he must file a complaint in a new case and either pay the required filing 13 || fee or properly apply for in forma pauperis status. 14 DATED THIS 7" Day of August 2023.

16 me MIRANDA M. DU 17 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28