2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:21-cv-00472-MMD-CSD

7 Plaintiff, ORDER v. 8 MR. MALTA, 9 Defendant. 10 11 Pro se Plaintiff Roberto Durand brings this civil-rights action under 42 U.S.C. 12 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 13 at Ely State Prison. (ECF No. 1-1.) On November 8, 2021, this Court ordered Durand to 14 file a fully complete application to proceed in forma pauperis (“IFP application”) or pay the 15 full $402 filing fee on or before January 7, 2022. (ECF No. 3.) The Court warned Durand 16 that the action could be dismissed if he failed to file a fully complete IFP application with 17 all three documents or pay the full $402 filing fee for a civil action by that deadline. (Id. at 18 3.) 19 The January 7 deadline expired and Durand did not file a fully complete IFP 20 application or pay the full $402 filing fee. Because Durand submitted an incomplete IFP 21 application on November 18, 2021 (ECF No. 4), the Court considered meaningful 22 alternatives to dismissal granted Durand one final opportunity to submit a fully complete 23 IFP application that included an inmate account statement for the previous six-month 24 period by the deadline of February 14, 2022. (ECF No. 7.) On January 20, 2022, Durand 25 once again submitted an incomplete IFP application that did not include an inmate 26 account statement for the previous six-month period. (ECF No. 8.) The February 14, 2022 27 deadline has now expired and Durand still has not filed a fully complete IFP application 28 or paid the full $402 filing fee. 2 exercise of that power, they may impose sanctions including, where appropriate . . . 3 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles,

, 831 4 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 5 order or comply with local rules. See Carey v. King,

(9th Cir. 6 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 7 keep court apprised of address); Malone v. U.S. Postal Service,

(9th 8 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 9 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 10 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 11 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 12 cases on their merits; and (5) the availability of less drastic alternatives. See In re 13 Phenylpropanolamine Prod. Liab. Litig.,

(9th Cir. 2006) (quoting 14 Malone v. U.S. Postal Serv.,

(9th Cir. 1987)). 15 The first two factors, the public’s interest in expeditiously resolving this litigation 16 and the Court’s interest in managing its docket, weigh in favor of dismissal of Roberto 17 Durand's claims. The third factor, risk of prejudice to defendants, also weighs in favor of 18 dismissal because a presumption of injury arises from the occurrence of unreasonable 19 delay in filing a pleading ordered by the court or prosecuting an action. See Anderson v. 20 Air West,

(9th Cir. 1976). The fourth factor—the public policy favoring 21 disposition of cases on their merits—is greatly outweighed by the factors favoring 22 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,

, 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,

, 643 & n.4 (9th 28 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 1 || “implicitly accepted pursuit of last drastic alternatives prior to disobedience of the court’s 2 || order as satisfying this elementL,]” /.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). 7 Because this action cannot realistically proceed until and unless Durand either files 8 || a fully complete IFP application or pays the $402 filing fee for a civil action, the only 9 || alternative is to enter a third order setting another deadline. But the reality of repeating 10 || two ignored orders is that it often only delays the inevitable and squanders the □□□□□□□ 11 || finite resources. The circumstances here do not indicate that this case will be an 12 || exception: there is no hint that Durand needs additional time or evidence that he did not 13 || receive the Court’s order. Setting a third deadline is not a meaningful alternative given 14 || these circumstances. So the fifth factor favors dismissal. In sum, having thoroughly 15 || considered these dismissal factors, the Court finds that they weigh in favor of dismissal. 16 It is therefore ordered that this action is dismissed without prejudice based on 17 || Durand's failure to file a fully complete IFP application or pay the full $402 filing fee in 18 || compliance with this Court's November 8, 2021 and January 14, 2022, orders. 19 It is further ordered that all pending motions (ECF Nos. 4, 8) are denied as moot. 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 Durand wishes to pursue his 22 || claims, he must file a complaint in a new case. 23 DATED THIS 15" Day of March 2022. 24 . 25 fo MIRANDA M. DU 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28