Wheeler v. Metro Police Department

• Court: District Court, D. Nevada
• Decided: August 14, 2025
• Docket: 2:25-cv-00648
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Antonio Wheeler, Case No. 2:25-cv-00648-JAD-BNW

5 Plaintiff, REPORT AND RECOMMENDATION 6 v.

7 Metro Police Department, et al.,

8 Defendants.

9 10 This Court previously dismissed Plaintiff’s complaint without prejudice and with leave to 11 amend by August 4, 2025. ECF No. 4. That order warned Plaintiff that this case would be 12 dismissed if he failed to file an amended complaint by the deadline. Id. Plaintiff neither filed an 13 amended complaint nor moved for an extension of time to do so. As a result, this Court 14 recommends that the case be dismissed without prejudice and closed. 15 The law permits a district court to dismiss an action based on a party’s failure to prosecute 16 his case or comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest 17 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant 18 to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply 19 with the rules of civil procedure or the court’s orders); see also Ferdik v. Bonzelet, 963 F.2d 1258, 20 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 21 complaint). In determining whether to dismiss an action, the court must consider: (1) the public’s 22 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 23 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 24 merits; and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. 25 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 26 130 (9th Cir. 1987)). 27 The first two factors, the public’s interest in expeditiously resolving this litigation and the 1 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 2 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 3 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th 4 Cir. 1976). The fourth factor—the public policy favoring disposition of cases on their merits— 5 weighs against dismissal. 6 The fifth factor requires the court to consider whether less drastic alternatives can be used 7 to correct the party’s failure that brought about the court’s need to consider dismissal. Courts 8 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 9 explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 10 Cir. 1986). Because this action cannot proceed without an operative complaint, the only 11 alternative is to enter a second order setting another deadline. The circumstances here do not 12 indicate that Plaintiff needs additional time nor is there evidence that he did not receive the 13 court’s order given that he has consented to electronic service. See ECF No. 2. Setting another 14 deadline is not a meaningful alternative given these circumstances. So, the fifth factor favors 15 dismissal. 16 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City 17 of El Monte, 138 F.3d 393 (9th Cir. 1998) (holdings dismissal is proper where least four factors 18 support dismissal or where at least three factors “strongly” support dismissal). 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 1 IT IS THEREFORE RECOMMENDED that THIS ACTION BE DISMISSED for 2 || failure to file an amended complaint by the court-ordered deadline. 3 NOTICE 4 This report and recommendation is submitted to the United States district judge assigned 5 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 6 || may file a written objection supported by points and authorities within fourteen days of being 7 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 8 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 9 || 1157 (th Cir. 1991). 10 1] DATED: August 14, 2025 12 Z gm la Wr cna BRENDA WEKSLER 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28