Riles v. Carlson

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Brittany Riles, et al., Case No. 2:24-cv-01070-CDS-BNW

5 Plaintiffs, REPORT AND RECOMMENDATION 6 v.

7 Tucker Carison, et al.,

8 Defendants.

9 10 On June 10, 2024, the Court ordered Plaintiff Anysha Cox to file an amended complaint 11 by July 15, 2024. ECF No. 4. The Court warned Ms. Cox that failure to file the amended 12 complaint may result in a recommendation that the case be dismissed. Id. That same day, the 13 Court ordered Plaintiff Brittany Riles to pay the filing fee or file her own application to proceed 14 in forma pauperis. ECF No. 6. In late June, the Court received notice that mail was returned as 15 undeliverable to Ms. Riles, so it ordered her to update her address within 30 days. ECF No. 7, 8. 16 The Court warned Ms. Riles that the failure to update her address may result in a recommendation 17 that the case be dismissed. Id. A few weeks later, the Court received notice that mail was returned 18 as undeliverable to Ms. Cox, so it ordered her to update her address within 30 days as well. ECF 19 No. 9, 10. The Court warned Ms. Cox that the failure to update her address may result in a 20 recommendation that the case be dismissed. Id. Ms. Cox has neither updated her address nor filed 21 the amended complaint even though these deadlines have passed. Ms. Riles has neither paid the 22 filing fee or moved to proceed in forma pauperis, nor has she updated her address by the 23 deadline. As a result, this Court recommends that this case be dismissed without prejudice and 24 closed. 25 The law permits a district court to dismiss an action based on a party’s failure to prosecute 26 his case or comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest 27 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant 1 with the rules of civil procedure or the court’s orders); see also Ferdik v. Bonzelet, 963 F.2d 1258, 2 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 3 complaint). In determining whether to dismiss an action, the court must consider: (1) the public’s 4 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 5 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 6 merits; and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. 7 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 8 130 (9th Cir. 1987)). 9 The first two factors, the public’s interest in expeditiously resolving this litigation and the 10 court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s claims. The third 11 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of 12 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 13 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 14 factor—the public policy favoring disposition of cases on their merits— weighs against dismissal. 15 The fifth factor requires the court to consider whether less drastic alternatives can be used 16 to correct the party’s failure that brought about the court’s need to consider dismissal. Courts 17 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 18 explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 19 Cir. 1986). This action cannot proceed without an operative complaint, nor can Ms. Riles proceed 20 in this case without paying the filing fee or moving to proceed in forma pauperis, nor can both 21 Plaintiffs participate in this case without a correct address on file. The only alternative is to enter 22 another order directing the Plaintiffs to participate in their case. The circumstances here do not 23 indicate that the Plaintiffs need additional time to file the amended complaint, move to proceed in 24 forma pauperis, or update their addresses. Setting another deadline is not a meaningful alternative 25 given these circumstances. So, the fifth factor favors dismissal. 26 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 27 of El Monte, 138 F.3d 393 (9th Cir. 1998) (holdings dismissal is proper where least four factors 1 IT IS THEREFORE RECOMMENDED that THIS ACTION IS DISMISSED for 2 || failure to comply with court-ordered deadlines. 3 4 NOTICE 5 This report and recommendation is submitted to the United States district judge assigned 6 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 7 || may file a written objection supported by points and authorities within fourteen days of being 8 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 9 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 10 1157 (9th Cir. 1991). 1] 12 DATED: August 26, 2024 13 LK i lea Are Enon, BRENDA WEKSLER 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28