Allison v. Stein Forensics Unit & Staff

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Case No.: 2:21-cv-1791-JAD-DJA Ronald J. Allison,

Plaintiff Order Adopting Report & Recommendation and Dismissing Action v.

Stein Forensics Unit and Staff, et al., [ECF No. 4]

Defendants

Plaintiff Ronald J. Allison filed this action without paying the filing fee or submitting a request to proceed in forma pauperis, so the court ordered him to do one of those things by November 1, 2021.1 Allison did neither, so the magistrate judge entered a report and recommendation that this case be dismissed.2 The deadline for the plaintiff to object to that recommendation was December 17, 2021, and he neither filed objections nor moved to extend the deadline to do so. Having reviewed the R&R, I find good cause to adopt it, and I do. District courts have the inherent power to control their dockets and “[i]n the exercise of that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.3 A court may dismiss an action based on a party’s failure to obey a court order or comply with local rules.4 In determining whether to dismiss an action on this ground, the court must consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

ECF No. 3.

ECF No. 4.

Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

4 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.5 The first two factors, the public’s interest in expeditiously resolving this litigation and the court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.6 The fourth factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by the factors favoring dismissal.

The fifth factor requires the court to consider whether less drastic alternatives can be used to correct the party’s failure that brought about the court’s need to consider dismissal.7 Courts “need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.”8 Because this court cannot operate without collecting reasonable fees, and litigation cannot progress with a plaintiff’s compliance with court orders, the only alternative is to enter a second order setting another deadline. But issuing a second order will only delay the inevitable and further squander the court’s finite resources. Setting another deadline is not a meaningful alternative given these circumstances. So the fifth factor favors dismissal.

In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)).

6 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before the party has disobeyed a court order does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of last drastic alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish).

8 Henderson, 779 F.2d at 1424. ] Having thoroughly weighed these dismissal factors, I find that they weigh in favor of dismissal. IT IS THEREFORE ORDERED that the magistrate judge’s report and recommendation [ECF No. 4] is ADOPTED in full; THIS ACTION IS DISMISSED without prejudice based on the plaintiff's failure to pay the filing fee or seek to proceed in forma pauperi compliance with the court’s order. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. If the plaintiff wishes to pursue his claims, he must file a complaint in a new case, and he must pay the fee for that action or file a complete application proceed in forma pauperis.

Dated: December 21, 2021