2

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 DAVID THOMPSON, Case No. 3:21-cv-00304-MMD-CLB

7 Plaintiff, ORDER v. 8 NEVADA DEPARTMENT OF 9 CORRECTIONS, et al.,

10 Defendants.

11 12 Pro se Plaintiff David Thompson brings this civil-rights action under 42 U.S.C. 13 § 1983 to redress constitutional violations that he claims he suffered while incarcerated 14 at Northern Nevada Correctional Center. (ECF No. 9.) On May 9, 2022, the Court ordered 15 Thompson to file a second amended complaint by June 8, 2022. (ECF No. 10 at 9-10.) 16 The Court further warned Thompson that the action could be dismissed if he failed to file 17 a second amended complaint by that deadline. (Id. at 10.) That deadline expired and 18 Thompson did not file a second amended complaint, move for an extension, or otherwise 19 respond. 20 District courts have the inherent power to control their dockets, and “[i]n the 21 exercise of that power, they may impose sanctions including, where appropriate . . . 22 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles,

, 831 23 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 24 order or comply with local rules. See Carey v. King,

(9th Cir. 25 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 26 keep court apprised of address); Malone v. U.S. Postal Serv.,

(9th Cir. 27 1987) (dismissal for failure to comply with court order). In determining whether to dismiss 28 an action on one of these grounds, the Court must consider: (1) the public’s interest in 2 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 3 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 4 Prods. Liab. Litig.,

(9th Cir. 2006) (quoting Malone,

). 5 The first two factors, the public’s interest in expeditiously resolving this litigation 6 and the Court’s interest in managing its docket, weigh in favor of dismissing Thompson’s 7 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 8 because a presumption of injury arises from the occurrence of unreasonable delay in filing 9 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542

(9th Cir. 1976). The fourth factor—the public policy favoring disposition of 11 cases on their merits—is greatly outweighed by the factors favoring dismissal. 12 The fifth factor requires the Court to consider whether less drastic alternatives can 13 be used to correct the party’s failure that brought about the Court’s need to consider 14 dismissal. See Yourish v. Cal. Amplifier,

, 992 (9th Cir. 1999) (explaining 15 that considering less drastic alternatives before the party has disobeyed a court order 16 does not satisfy this factor); accord Pagtalunan v. Galaza,

, 643 & n.4 (9th 17 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 18 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 19 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 20 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 21 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 22 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779

, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 24 unless Thompson files a second amended complaint, the only alternative is to enter a 25 second order setting another deadline. But the reality of repeating an ignored order is that 26 it often only delays the inevitable and squanders the Court’s finite resources. The 27 circumstances here do not indicate that this case will be an exception: there is no hint 28 that Thompson needs additional time or evidence that he did not receive the Court’s 1 || screening order. Setting another deadline is not a meaningful alternative given these 2 || circumstances. Accordingly, the fifth factor also favors dismissal. Having thoroughly 3 || considered these dismissal factors, the Court finds that they collectively weigh in favor of 4 || dismissal. 5 It is therefore ordered that this action is dismissed without prejudice based on 6 || Thompson’s failure to file a second amended complaint in compliance with the Court’s 7 || May 9, 2022, order and for failure to state a claim. 8 The Clerk of the Court is directed to enter judgment accordingly and close this 9 || case. No other documents may be filed in this now-closed case. If Thompson wishes to 10 || pursue his claims, he must file a complaint in a new case. 11 It is further ordered that the application to proceed in forma pauperis without having 12 || to prepay the filing fee (ECF No. 4) is granted. Thompson need not pay an initial 13 || installment fee, prepay fees or costs, or provide security for fees or costs, but he is still 14 || required to pay the full $350 filing fee under

, as amended. This full filing 15 || fee remains due and owing even though this case is being dismissed. 16 In order to ensure that Thompson pays that filing fee, it is further ordered that the 17 || Nevada Department of Corrections must forward payments from the account of David 18 || Thompson, #66826 to the Clerk of the United States District Court, District of Nevada, 19 || 20% of the preceding month’s deposits (in months that the account exceeds $10.00) until 20 || the full $350 filing fee has been paid for this action. 21 The Clerk of Court is directed to send copies of this order to the Finance Division 22 || of the Clerk’s Office and to the attention of Chief of Inmate Services for the Nevada 23 || Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 24 DATED THIS 22" Day of June 2022.

26 IRANDA M. DU 27 CHIEF UNITED STATES DISTRICT JUDGE 28