Rocco v. Sheriff Mcmahill

• Court: District Court, D. Nevada
• Decided: June 29, 2023
• Docket: 2:23-cv-00462
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 THOMAS ROCCO, Case No. 2:23-cv-00462-MMD-EJY

7 Plaintiff, ORDER v. 8 SHERIFF MCMAHILL, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Thomas Rocco brings this civil-rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at the Clark 14 County Detention Center. (ECF No. 1-1.) On April 24, 2023, this Court ordered Plaintiff to 15 file a fully complete application to proceed in forma pauperis or pay the full $402 filing fee 16 on or before June 23, 2023. (ECF No. 4.) The Court warned Plaintiff that the action could 17 be dismissed if he failed to file a fully complete application to proceed in forma pauperis 18 with all three documents or pay the full $402 filing fee for a civil action by that deadline. 19 (Id. at 1-2.) That deadline expired and Plaintiff did not file a fully complete application to 20 proceed in forma pauperis, pay the full $402 filing fee, or otherwise respond. 21 Moreover, Plaintiff’s mail has been repeatedly returned as undeliverable, and the 22 Court does not have an updated address from Plaintiff. (ECF Nos. 3, 5.) See LR IA 3-1 23 (stating that a “pro se party must immediately file with the court written notification of any 24 change of mailing address . . . . Failure to comply with this rule may result in the dismissal 25 of the action, entry of default judgment, or other sanctions as deemed appropriate by the 26 court”). 27 28 2 District courts have the inherent power to control their dockets and “[i]n the 3 exercise of that power, they may impose sanctions including, where appropriate . . . 4 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 5 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 6 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 7 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 8 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 9 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 10 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 11 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 12 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic alternatives. See In re 14 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 15 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 16 The first two factors, the public’s interest in expeditiously resolving this litigation 17 and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 18 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 19 because a presumption of injury arises from the occurrence of unreasonable delay in filing 20 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 21 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 22 cases on their merits—is greatly outweighed by the factors favoring dismissal. 23 The fifth factor requires the Court to consider whether less drastic alternatives can 24 be used to correct the party’s failure that brought about the Court’s need to consider 25 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 26 that considering less drastic alternatives before the party has disobeyed a court order 27 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 28 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 1 || “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 2 || order as satisfying this element[,]” /e., like the “initial granting of leave to amend coupled 3 || with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 4 || Courts “need not exhaust every sanction short of dismissal before finally dismissing a 5 || case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 6 || F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 7 || unless Plaintiff either files a fully complete application to proceed in forma pauperis or 8 || pays the $402 filing fee for a civil action, the only alternative is to enter a second order 9 || setting another deadline. But without an updated address, the likelihood that the second 10 || order would even reach Plaintiff is low, so issuing a second order will only delay the 11 || inevitable and further squander the Court’s finite resources. Setting another deadline is 12 || not a meaningful alternative given these circumstances. So the fifth factor favors 13 || dismissal. 14 || Ill. CONCLUSION 15 Having thoroughly considered these dismissal factors, the Court finds that they 16 || weigh in favor of dismissal. 17 It is therefore ordered that this action is dismissed without prejudice based on 18 || Plaintiff's failure to file a fully complete application to proceed in forma pauperis or pay 19 || the full $402 filing fee in compliance with this Court’s April 24, 2023 order. 20 The Clerk of Court is directed to enter judgment accordingly and close this case. 21 || No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his 22 || claims, he must file a complaint in a new case. 23 DATED THIS 29" Day of June 2023.

25 we MIRANDA M. DU 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28