2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JEREMY JOHN-JASON CUMMINGS, Case No. 3:22-cv-00413-MMD-CLB

7 Plaintiff, ORDER v. 8 MEDICAL, WASHOE COUNTY JAIL, 9 Defendant. 10 11 I. SUMMARY 12 Plaintiff Jeremy Cummings brings this civil-rights action under

to 13 redress constitutional violations that he claims he suffered while he was housed at 14 Washoe County Detention Center. (ECF No. 5.) On December 12, 2022, the Court 15 ordered Cummings to file an amended complaint by January 11, 2023. (ECF No. 4.) The 16 Court warned Cummings that the action could be dismissed if he failed to file an amended 17 complaint by that deadline. (Id. at 11.) That deadline expired and Cummings did not file 18 an amended complaint, move for an extension, or otherwise respond. 19 II. DISCUSSION 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 Service,

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

(9th Cir. 2006) (quoting 5 Malone,

). 6 The first two factors, the public’s interest in expeditiously resolving this litigation 7 and the Court’s interest in managing its docket, weigh in favor of dismissal of Cummings’s 8 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 9 because a presumption of injury arises from the occurrence of unreasonable delay in filing 10 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 12 cases on their merits—is greatly outweighed by the factors favoring dismissal. 13 The fifth factor requires the Court to consider whether less drastic alternatives can 14 be used to correct the party’s failure that brought about the Court’s need to consider 15 dismissal. See Yourish v. Cal. Amplifier,

, 992 (9th Cir. 1999) (explaining 16 that considering less drastic alternatives before the party has disobeyed a court order 17 does not satisfy this factor); accord Pagtalunan v. Galaza,

, 643 & n.4 (9th 18 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 19 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 20 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 21 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 22 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 23 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779

, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 25 unless Cummings files an amended complaint, the only alternative is to enter a second 26 order setting another deadline. But the reality of repeating an ignored order is that it often 27 only delays the inevitable and squanders the Court’s finite resources. The circumstances 28 here do not indicate that this case will be an exception: there is no indication that 1 || Cummings needs additional time or evidence that he did not receive the Court’s screening 2 || order. Setting another deadline is not a meaningful alternative given these circumstances. 3 || So the fifth factor favors dismissal. Having thoroughly considered these dismissal factors, 4 || the Court finds that they weigh in favor of dismissal. 5 || lll. CONCLUSION 6 It is therefore ordered that this action is dismissed without prejudice based on 7 || Cummings’s failure to file an amended complaint in compliance with the Court’s 8 || December 12, 2022, order and for failure to state a claim. 9 The Clerk of Court is directed to enter judgment accordingly and close this case. 10 || No other documents may be filed in this now-closed case. If Cummings wishes to pursue 11 his claims, he must file a complaint in a new case. 12 It is further ordered that Cummings’s applications to proceed in forma pauperis 13 || (ECF Nos. 1, 3) are denied. 14 DATED THIS 1* Day of February 2023.

16 ae MIRANDA M. DU 17 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28