Lomax v. Najera

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 NATHAN L. LOMAX, Case No. 2:23-cv-00534-GMN-DJA 4 Plaintiff, ORDER 5 v.

6 GABRIELA NAJERA, et al.,

7 Defendants.

9 Plaintiff Nathan Lomax (“Plaintiff”) brings this civil-rights action under 42 U.S.C. 10 § 1983 to redress constitutional violations. (ECF No. 6.) On July 27, 2023, the Court 11 issued a screening order that stated that Plaintiff must file an amended complaint within 12 30 days of the filing date of that order. (ECF No. 5 at 7-8.) The Court warned Plaintiff that 13 the action could be dismissed if he failed to file an amended complaint by that deadline. 14 (Id.) That deadline expired, and Plaintiff did not file an amended complaint, move for an 15 extension, or otherwise respond. 16 I. DISCUSSION 17 District courts have the inherent power to control their dockets and “[i]n the 18 exercise of that power, they may impose sanctions including, where appropriate . . . 19 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 20 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 21 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 22 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 23 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 24 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 25 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 26 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 27 1 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 2 cases on their merits; and (5) the availability of less drastic alternatives. See In re 3 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 4 Malone, 833 F.2d at 130). 5 The first two factors, the public’s interest in expeditiously resolving this litigation 6 and the Court’s interest in managing its docket, weigh in favor of dismissing Plaintiff’s 7 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 8 because a presumption of injury arises from the occurrence of unreasonable delay in filing 9 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 10 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 11 cases on their merits—is greatly outweighed by the factors favoring dismissal. 12 The fifth factor requires the Court to consider whether less drastic alternatives can 13 be used to correct the party’s failure that brought about the Court’s need to consider 14 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 15 that considering less drastic alternatives before the party has disobeyed a court order 16 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 17 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 18 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 19 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 20 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 21 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 22 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 23 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 24 unless Plaintiff files an amended complaint, the only alternative is to enter a second order 25 setting another deadline. But the reality of repeating an ignored order is that it often only 26 delays the inevitable and squanders the Court’s finite resources. The circumstances here 27 do not indicate that this case will be an exception: there is no hint that Plaintiff needs 1 additional time or evidence that he did not receive the Court’s screening order. Setting 2 another deadline is not a meaningful alternative given these circumstances. So the fifth 3 factor favors dismissal. 4 II. 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 Plaintiff’s failure to file an amended complaint in compliance with this 8 Court’s order. The Clerk of Court is directed to enter judgment accordingly and close this 9 case. No other documents may be filed in this now-closed case. If Plaintiff wishes to 10 pursue his claims, he must file a complaint in a new case. 11 It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF 12 No. 4) is GRANTED. Plaintiff shall not be required to pay an initial installment of the filing 13 fee. 14 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 15 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 16 the account of NATHAN LOMAX, #1212555 to the Clerk of the United States District 17 Court, District of Nevada, 20% of the preceding month's deposits (in months that the 18 account exceeds $10.00) until the full $350 filing fee has been paid for this action. The 19 Clerk of the Court will send a copy of this order to the Finance Division of the Clerk’s 20 Office. The Clerk will send a copy of this order to the attention of Chief of Inmate 21 Services for the Nevada Department of Corrections at formapauperis@doc.nv.gov. 22 /// 23 /// 24 /// 25 /// 26 27 1 It is further ordered that, even though this action is dismissed, or is otherwise 2 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended 3 by the Prison Litigation Reform Act. 4 DATED THIS 6th day of September 2023.

6 ___ Gloria M. Navarro, Judge 7 United States District Court

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