3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 PAUL SCOTT KLEIN, Case No. 3:19-cv-00569-MMD-CSD
7 Plaintiff, ORDER v. 8 BRIAN WILLIAMS SR., et al., 9 Defendants. 10
11 12 Pro se Plaintiff Paul Klein brings this civil rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at High 14 Desert State Prison. (ECF No. 13.) The Court screened Klein’s first amended complaint 15 pursuant to to 28 U.S.C. § 1915A. (ECF No. 14.) The screening order dismissed Klein’s 16 constitutional claims in Count I with prejudice, dismissed Klein’s state law tort claims in 17 Count II without prejudice, but without leave to amend, and dismissed Klein’s claims 18 under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) 19 without prejudice and with leave to amend. (Id. at 12-13.) 20 Klein filed an objection to the Court’s screening order. (ECF No. 15.) The Court 21 construed this objection as a motion for reconsideration, denied the motion, and gave 22 Klein until April 29, 2022, to file a second amended complaint regarding Klein’s claims 23 under the ADA and RA. (ECF No. 19.) The Court warned Klein that the action could be 24 dismissed if he failed to file a second amended complaint by that deadline. (Id. at 3.) That 25 deadline has now expired, and Klein did not file a second amended complaint, move for 26 an extension, or otherwise respond. 27 The Court grants Klein’s application to proceed in forma pauperis. (ECF No. 4.) 28 Based on the information regarding Klein’s financial status, the Court finds that Klein is 2 § 1915. Klein will, however, be required to make monthly payments toward the full 3 $350.00 filing fee when he has funds available. 4 District courts have the inherent power to control their dockets and “[i]n the 5 exercise of that power, they may impose sanctions including, where appropriate . . . 6 dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 7 1986). A court may dismiss an action based on a party’s failure to obey a court order or 8 comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 9 (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep 10 court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 11 1987) (dismissal for failure to comply with court order). In determining whether to dismiss 12 an action on one of these grounds, the Court must consider: (1) the public’s interest in 13 expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk 14 of prejudice to Defendants; (4) the public policy favoring disposition of cases on their 15 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 16 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130)). 17 The first two factors, the public’s interest in expeditiously resolving this litigation 18 and the Court’s interest in managing its docket, weigh in favor of dismissal of Klein’s 19 claims. The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal 20 because a presumption of injury arises from the occurrence of unreasonable delay in filing 21 a pleading ordered by the Court or prosecuting an action. See Anderson v. Air W., 542 22 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 23 cases on their merits—is greatly outweighed by the factors favoring dismissal. 24 The fifth factor requires the Court to consider whether less drastic alternatives can 25 be used to correct the party’s failure that brought about the Court’s need to consider 26 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 27 that considering less drastic alternatives before the party has disobeyed a court order 28 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 2 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 3 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 4 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 5 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 6 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 7 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 8 unless Klein files a second amended complaint, the only alternative is to enter a second 9 order setting another deadline. But the reality of repeating an ignored order is that it often 10 only delays the inevitable and squanders the Court’s finite resources. The circumstances 11 here do not indicate that this case will be an exception. There is no hint that Klein needs 12 additional time or evidence that he did not receive the Court’s screening order. Setting 13 another deadline is not a meaningful alternative given these circumstances. Therefore, 14 the fifth factor favors dismissal. Having thoroughly considered these dismissal factors, the 15 Court finds that they weigh in favor of dismissal. 16 It is therefore ordered that this action is dismissed based on Plaintiff Paul Klein’s 17 failure to file a second amended complaint in compliance with this Court’s March 30, 2022 18 order (ECF No. 19). 19 It is further ordered that Klein’s application to proceed in forma pauperis (ECF No. 20 4) is granted. Klein shall not be required to pay an initial installment of the filing fee. 21 However, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2) even 22 though this action is dismissed. 23 It is further ordered that movant herein is permitted to maintain this action to 24 conclusion without the necessity of prepayment of any additional fees or costs or the 25 giving of security therefor. 26 It is further ordered that pursuant to 28 U.S.C. § 1915, as amended by the Prison 27 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 28 the account of Paul Scott Klein, # 30918 to the Clerk of the United States District Court, 1 || District of Nevada, 20% of the preceding month's deposits (in months that the account 2 || exceeds $10.00) until the full $350.00 filing fee has been paid for this action. The Clerk 3 || of Court will send a copy of this order to the Finance Division of the Clerk's Office. The 4 || Clerk will send a copy of this order to the attention of Chief of Inmate Services for the 5 || Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 PAUL SCOTT KLEIN, Case No. 3:19-cv-00569-MMD-CSD
7 Plaintiff, ORDER v. 8 BRIAN WILLIAMS SR., et al., 9 Defendants. 10
11 12 Pro se Plaintiff Paul Klein brings this civil rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at High 14 Desert State Prison. (ECF No. 13.) The Court screened Klein’s first amended complaint 15 pursuant to to 28 U.S.C. § 1915A. (ECF No. 14.) The screening order dismissed Klein’s 16 constitutional claims in Count I with prejudice, dismissed Klein’s state law tort claims in 17 Count II without prejudice, but without leave to amend, and dismissed Klein’s claims 18 under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) 19 without prejudice and with leave to amend. (Id. at 12-13.) 20 Klein filed an objection to the Court’s screening order. (ECF No. 15.) The Court 21 construed this objection as a motion for reconsideration, denied the motion, and gave 22 Klein until April 29, 2022, to file a second amended complaint regarding Klein’s claims 23 under the ADA and RA. (ECF No. 19.) The Court warned Klein that the action could be 24 dismissed if he failed to file a second amended complaint by that deadline. (Id. at 3.) That 25 deadline has now expired, and Klein did not file a second amended complaint, move for 26 an extension, or otherwise respond. 27 The Court grants Klein’s application to proceed in forma pauperis. (ECF No. 4.) 28 Based on the information regarding Klein’s financial status, the Court finds that Klein is 2 § 1915. Klein will, however, be required to make monthly payments toward the full 3 $350.00 filing fee when he has funds available. 4 District courts have the inherent power to control their dockets and “[i]n the 5 exercise of that power, they may impose sanctions including, where appropriate . . . 6 dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 7 1986). A court may dismiss an action based on a party’s failure to obey a court order or 8 comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 9 (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep 10 court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 11 1987) (dismissal for failure to comply with court order). In determining whether to dismiss 12 an action on one of these grounds, the Court must consider: (1) the public’s interest in 13 expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk 14 of prejudice to Defendants; (4) the public policy favoring disposition of cases on their 15 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 16 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130)). 17 The first two factors, the public’s interest in expeditiously resolving this litigation 18 and the Court’s interest in managing its docket, weigh in favor of dismissal of Klein’s 19 claims. The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal 20 because a presumption of injury arises from the occurrence of unreasonable delay in filing 21 a pleading ordered by the Court or prosecuting an action. See Anderson v. Air W., 542 22 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 23 cases on their merits—is greatly outweighed by the factors favoring dismissal. 24 The fifth factor requires the Court to consider whether less drastic alternatives can 25 be used to correct the party’s failure that brought about the Court’s need to consider 26 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 27 that considering less drastic alternatives before the party has disobeyed a court order 28 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 2 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 3 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 4 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 5 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 6 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 7 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 8 unless Klein files a second amended complaint, the only alternative is to enter a second 9 order setting another deadline. But the reality of repeating an ignored order is that it often 10 only delays the inevitable and squanders the Court’s finite resources. The circumstances 11 here do not indicate that this case will be an exception. There is no hint that Klein needs 12 additional time or evidence that he did not receive the Court’s screening order. Setting 13 another deadline is not a meaningful alternative given these circumstances. Therefore, 14 the fifth factor favors dismissal. Having thoroughly considered these dismissal factors, the 15 Court finds that they weigh in favor of dismissal. 16 It is therefore ordered that this action is dismissed based on Plaintiff Paul Klein’s 17 failure to file a second amended complaint in compliance with this Court’s March 30, 2022 18 order (ECF No. 19). 19 It is further ordered that Klein’s application to proceed in forma pauperis (ECF No. 20 4) is granted. Klein shall not be required to pay an initial installment of the filing fee. 21 However, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2) even 22 though this action is dismissed. 23 It is further ordered that movant herein is permitted to maintain this action to 24 conclusion without the necessity of prepayment of any additional fees or costs or the 25 giving of security therefor. 26 It is further ordered that pursuant to 28 U.S.C. § 1915, as amended by the Prison 27 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 28 the account of Paul Scott Klein, # 30918 to the Clerk of the United States District Court, 1 || District of Nevada, 20% of the preceding month's deposits (in months that the account 2 || exceeds $10.00) until the full $350.00 filing fee has been paid for this action. The Clerk 3 || of Court will send a copy of this order to the Finance Division of the Clerk's Office. The 4 || Clerk will send a copy of this order to the attention of Chief of Inmate Services for the 5 || Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 6 It is further ordered that the Court certifies that any in forma pauperis appeal from 7 || this order would not be taken “in good faith” under 28 U.S.C. § 1915(a)(3). 8 It is further ordered that the Clerk of Court close this case and enter judgment 9 || accordingly. 10 DATED THIS 20" Day of May 2022. 11 ~~ 12 ( 13 Ant — MIRANDA M. DU 14 CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28