1

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 DONTE LOFTON, Case No. 3:22-cv-00206-ART-CSD 5 Plaintiff, ORDER 6 v.

7 ELY STATE PRISON, et al.,

8 Defendants.

9 10 11 Plaintiff Donte Lofton brings this civil-rights action under

12 to redress constitutional violations that he claims he suffered while incarcerated 13 at Ely State Prison. (ECF No. 1-1 at 1.) On September 19, 2022, this Court 14 ordered Lofton to file a non-prisoner application to proceed in forma pauperis 15 within 30 days. (ECF No. 6 at 1.) The Court warned Lofton that the action could 16 be dismissed if he failed to file a non-prisoner application to proceed in forma 17 pauperis by that deadline. (Id. at 2.) That deadline expired and Lofton did not file 18 a non-prisoner application to proceed in forma pauperis, move for an extension, 19 or otherwise respond to the Court’s order. 20 DISCUSSION 21 Federal District courts have the inherent power to control their dockets and 22 “[i]n the exercise of that power, they may impose sanctions including, where 23 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 24 Angeles,

(9th Cir. 1986). A court may dismiss an action based 25 on a party’s failure to obey a court order or comply with local rules. See Carey v. 26 King,

(9th Cir. 1988) (affirming dismissal for failure to 27 comply with local rule requiring pro se plaintiffs to keep court apprised of 28 address); Malone v. U.S. Postal Service,

(9th Cir. 1987) 1 (dismissal for failure to comply with court order). In determining whether to 2 dismiss an action on one of these grounds, the Court must consider: (1) the 3 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 4 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 5 favoring disposition of cases on their merits; and (5) the availability of less drastic 6 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig.,

, 7 1226 (9th Cir. 2006) (quoting Malone,

). 8 The first two factors, the public’s interest in expeditiously resolving this 9 litigation and the Court’s interest in managing its docket, weigh in favor of 10 dismissing Lofton’s claims. The third factor, risk of prejudice to defendants, also 11 weighs in favor of dismissal because a presumption of injury arises from the 12 occurrence of unreasonable delay in filing a pleading ordered by the court or 13 prosecuting an action. See Anderson v. Air West,

(9th Cir. 14 1976). The fourth factor—the public policy favoring disposition of cases on their 15 merits—is greatly outweighed by the factors favoring dismissal. 16 The fifth factor requires the Court to consider whether less drastic 17 alternatives can be used to correct the party’s failure that brought about the 18 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier,

, 19 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 20 the party has disobeyed a court order does not satisfy this factor); accord 21 Pagtalunan v. Galaza,

, 643 & n.4 (9th Cir. 2002) (explaining that 22 “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted 23 pursuit of less drastic alternatives prior to disobedience of the court’s order as 24 satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 25 with the warning of dismissal for failure to comply[,]” have been “eroded” by 26 Yourish). Courts “need not exhaust every sanction short of dismissal before finally 27 dismissing a case, but must explore possible and meaningful alternatives.” 28 Henderson v. Duncan,

(9th Cir. 1986). Because this action 1 || cannot realistically proceed until and unless Lofton either files a non-prisoner 2 || application to proceed in forma pauperis or pays the $402 filing fee for a civil 3 || action, the only alternative is to enter another order setting another deadline. But 4 || the reality of repeating an ignored order is that it often only delays the inevitable 5 || and squanders the Court’s finite resources. The circumstances here do not 6 || indicate that this case will be an exception: there is no hint that Lofton needs 7 || additional time or evidence that he did not receive the Court’s order. Setting 8 || another deadline is not a meaningful alternative given these circumstances. So 9 || the fifth factor favors dismissal. 10 || II. CONCLUSION 11 Having thoroughly considered these dismissal factors, the Court finds that 12 || they weigh in favor of dismissal. It is therefore ordered that this action is 13 || dismissed without prejudice based on Lofton’s failure to file a non-prisoner 14 || application to proceed in forma pauperis or pay the full $402 filing fee in 15 || compliance with this Court’s September 19, 2022, order. The Clerk of Court is 16 || directed to enter judgment accordingly and close this case. No other documents 17 || may be filed in this now-closed case. If Lofton wishes to pursue his claims, he 18 || must file a complaint in a new case. 19 20 DATED THIS 5th day of December 2022. 21 an 22 Aas / 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28