Oelker v. Idaho State Bar (ISB)

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 JEROMY OELKER, Case No. 2:24-cv-01699-JAD-EJY 5 Plaintiff, 6 v. ORDER ADOPTING REPORT AND 7 IDAHO STATE BAR, DIRECTOR DIANE RECOMMENDATION AND MINNICH, THOMAS CLARK, DISMISSING CASE 8 Defendants. ECF Nos. 6, 8 9 10 On December 9, 2024, the magistrate judge entered the following report and recommendation: 11 This action commenced when pro se Plaintiff submitted an application to proceed in forma 12 pauperis (“IFP”) together with a Complaint on September 10, 2024. ECF Nos. 1, 1-1. On October 13 1, 2024, the Court granted Plaintiff’s IFP application. ECF No. 3. In the same Order, the Court 14 dismissed Plaintiff’s Complaint without prejudice and with leave to amend. Id. The Order gave 15 Plaintiff through and including October 31, 2024 to file an amended complaint demonstrating a 16 violation of his rights under the U.S. Constitution or federal statute. The Court advised Plaintiff it 17 would recommend dismissal of his case in its entirety if he failed to comply with its Order. Id. 18 Instead of filing an amended complaint Plaintiff submitted a Motion for Injunction on 19 October 31, 2024. ECF No. 6. Because Plaintiff may not have understood his Motion would not 20 substitute for a complaint, the Court issued an Order on November 20, 2024 explaining this to 21 Plaintiff and giving him through and including December 2, 2024 to file an amended complaint. 22 ECF No. 7. The Court told Plaintiff that if he failed to comply with its Order, it would recommend 23 dismissal of his action in its entirety. Id. As of the date of this Recommendation, Plaintiff has not 24 filed an amended complaint. 25 District courts have the inherent power to control their dockets and “[i]n the exercise of that 26 power, they may impose sanctions including, where appropriate, . . . dismissal” of a case. Thompson 27 v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an 1 || an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9 2 || Cir. 1987) (affirming dismissal for failure to comply with court order); Henderson v. Duncan, 7 3 || F.2d 1421, 1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comp 4 || with local rules). In determining whether to dismiss an action for lack of prosecution or failure 5 || obey a court order, the court must consider several factors: (1) the public’s interest in expeditio 6 || resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to tl 7 || defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availabili 8 || of less drastic alternatives. See, e.g., Thompson, 782 F.2d at 831; Ferdik, 963 F.2d at 1260-61. 9 Here, the first two factors weigh in favor of dismissal. The third factor, risk of prejudice 10 || defendants, also weighs in favor of dismissal because a presumption of injury arises fro 11 |} unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See □□□□□□ 12 || v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The public policy interest in disposition of cases « 13 || their merits is outweighed by the other factors in favor of dismissal. Finally, a court’s warning te 14 || party that his failure to obey the court’s order will result in dismissal satisfies the “consideration | 15 || alternatives” requirement. See, e.g., Ferdik, 963 F.2d at 1262. The Court informed Plaintiff th 16 || failure to file an amended complaint would result in a recommendation to dismiss his action in □ 17 || entirety. 18 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff's action be DISMISSE 19 || without prejudice. 20 Dated this 9th day of December, 2024. 21 22 23 FLAYN Dek, UNITEDSTATES MAGT TE JUDGE

25 Order Adopting Report & Recommendation 26 The deadline for any party to object to this recommendation was December 23, 202 27 || and no party filed anything or asked to extend the deadline to do so. “[N]o review is requir 28 || of a magistrate judge’s report and recommendation unless objections are filed.” United States

1 || v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Having reviewed the report and 2 || recommendation, I find good cause to adopt it, and I do. IT IS THEREFORE ORDERED that 3 || the Magistrate Judge’s Report and Recommendation [ECF No. 8] is ADOPTED in its 4 || entirety. This case is DISMISSED, and the motion for injunction [ECF No. 6] is DENIED a 5 || moot. The Clerk of Court is directed to CLOSE THIS CASE. 7 I Toe Le g US. Daher haite fenifer A. Dorsey Dated: December 30, 2024 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28