Oelker v. State of Nevada

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Jeromy Oelker, Case No. 2:25-cv-00528-JAD-DJA 6 Plaintiff, 7 Order Adopting v. Report and Recommendation 8 and Dismissing Case State of Nevada, et al., 9 Defendants. 10 11 On July 7, 2025, the magistrate judge entered this report and recommendation [ECF No. 6]: 12 On May 2, 2025, the Court ordered pro se Plaintiff Jeromy Oelker to pay the filing fee or 13 apply to proceed in forma pauperis (which means to proceed without paying the filing fee). (ECF 14 No. 5). In that order, the Court gave Oelker until June 2, 2025, to either pay the filing fee or 15 apply to proceed in forma pauperis. The Court informed Oelker that “[f]ailure to timely comply 16 with this order may result in a recommendation to the district judge that this case be dismissed.” 17 (Id.) (emphasis in original). To date, Oelker has neither paid the filing fee, nor applied to proceed 18 in forma pauperis, nor filed anything else on the docket. So, the Court recommends dismissal of 19 this case without prejudice. A dismissal without prejudice allows Oelker to refile a case with the 20 Court, under a new case number. 21 Federal Rule of Civil Procedure 41(b) permits dismissal of an action for the failure to 22 prosecute or comply with rules or a court order. Fed. R. Civ. P. 41(b). In considering whether to 23 dismiss an action under Rule 41(b), courts consider: (1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 25 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 26 availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1998). 27 Here, because Oelker has not complied with the Court’s order or taken any action in this 1 See Fed. R. Civ. P. 41(b); see LR1 IA 11-8(e) (providing that the Court may, after notice and an 2 opportunity to be heard, impose any and all appropriate sanctions on a party who fails to comply 3 with any order); see Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 4 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the 5 issue…[t]he opportunity to brief the issue fully satisfies due process requirements”). The first 6 factor weighs in favor of dismissal because the public has an interest in expeditious resolution of 7 litigation and Oelker’s failure to further participate in this lawsuit impedes this goal. The second 8 factor weighs in favor of dismissal because the Court’s need to manage its docket is thwarted by 9 Oelker’s failure to prosecute his own action and to comply with this Court’s order. The third 10 factor weighs in favor of dismissal because the longer this case is carried on, the more difficult it 11 will be for the parties to litigate it because witnesses’ memories will fade and evidence may be 12 lost. The fourth factor weighs in favor of Oelker, but does not outweigh the other factors. Fifth, 13 lesser sanctions are not available if Oelker will not comply with Court orders. So, the Court 14 recommends dismissing this case without prejudice. 15 16 ORDER 17 IT IS ORDERED that the Clerk of Court is kindly directed to send Oelker a copy of this 18 report and recommendation. 19 RECOMMENDATION 20 IT IS RECOMMENDED that this case be dismissed without prejudice. 21 22 23 24 25 26 27 1 This refers to the Local Rules of Practice for the United States District Court, District of Nevada, which can be found on the Court’s website at https://www.nvd.uscourts.gov/court- 1 ORDER ADOPTING REPORT AND RECOMMENDATION 2 The deadline for any party to object to this recommendation was July 21, 2025, and no 3 || party filed anything or asked to extend the deadline to do so. “[N]o review is required of a 4 || magistrate judge’s report and recommendation unless objections are filed.” United States v. 5 || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Having reviewed the report and 6 || recommendation, I find good cause to adopt it, and I do. IT IS THEREFORE ORDERED that the 7 || Magistrate Judge’s Report and Recommendation [ECF No. 6] is ADOPTED in its entirety, and 8 || this case is DISMISSED without prejudice. The Clerk of Court is directed to ENTER 9 || JUDGMENT accordingly and CLOSE THIS CASE. 10 1]

U.S. District edge Jennifer A. Dorsey 13 Dated: July 28, 2025 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28