2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TREVON ONEAL, Case No. 2:22-cv-01922-RFB-VCF

7 Plaintiff, ORDER v. 8 GABRIELA NAJERA, et al., 9 Defendants. 10 11 Plaintiff Trevon Oneal brings this civil-rights action under

to 12 redress constitutional violations that he claims he suffered while incarcerated at Lovelock 13 Correctional Center. (ECF No. 1-1). On December 22, 2022, this Court ordered Plaintiff 14 to file a non-prisoner application to proceed in forma pauperis or pay the full $402 filing 15 fee on or before January 23, 2023. (ECF No. 5 at 8). The Court warned Plaintiff that the 16 action could be dismissed if he failed to file a non-prisoner application to proceed in forma 17 pauperis or pay the full $402 filing fee for a civil action by that deadline. (Id.) The deadline 18 expired, and Plaintiff did not file a non-prisoner application to proceed in forma pauperis, 19 pay the full $402 filing fee, or otherwise respond. Additionally, the Court’s mail to Plaintiff 20 has been returned as undeliverable because he has not updated the Court with his current 21 address. (ECF No. 9). 22 I. DISCUSSION 23 District courts have the inherent power to control their dockets, and “[i]n the 24 exercise of that power, they may impose sanctions including, where appropriate . . . 25 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles,

, 831 26 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 27 order or comply with local rules. See Carey v. King,

(9th Cir. 28 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 2 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 3 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 4 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 5 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 6 cases on their merits; and (5) the availability of less drastic alternatives. See In re 7 Phenylpropanolamine Prod. Liab. Litig.,

(9th Cir. 2006) (quoting 8 Malone v. U.S. Postal Serv.,

(9th Cir. 1987)). 9 The first two factors, the public’s interest in expeditiously resolving this litigation 10 and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 11 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 12 because a presumption of injury arises from the occurrence of unreasonable delay in filing 13 a pleading ordered by the Court or prosecuting an action. See Anderson v. Air West, 542

, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 15 cases on their merits—is greatly outweighed by the factors favoring dismissal. 16 The fifth factor requires the Court to consider whether less drastic alternatives can 17 be used to correct the party’s failure that brought about the Court’s need to consider 18 dismissal. See Yourish v. Cal. Amplifier,

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

, 643 & n.4 (9th 21 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 22 “implicitly accepted pursuit of last drastic alternatives prior to disobedience of the court’s 23 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 24 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 25 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 26 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779

, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 28 unless Plaintiff either files a non-prisoner application to proceed in forma pauperis or pays 1 || the $402 filing fee for a civil action, the only alternative is to enter a second order setting 2 || another deadline. But the reality of repeating an ignored order is that it often only delays 3 || the inevitable and squanders the Court’s finite resources. And, because the Court’s mail 4 || to Plaintiff has been returned as undeliverable, the chance that the order will reach him 5 || is low. Setting another deadline is not a meaningful alternative given these circumstances. 6 || Thus, the fifth factor favors dismissal. 7 Having thoroughly considered these dismissal factors, the Court finds that they 8 || weigh in favor of dismissal. 9 || Ul. CONCLUSION 10 IT IS THEREFORE ORDERED that this action is dismissed without prejudice 11 || based on Plaintiff's failure to file a non-prisoner application to proceed in forma pauperis 12 || or to pay the full $402 filing fee in compliance with this Court’s December 22, 2022 order. 13 The Clerk of Court is directed to enter judgment accordingly and close this case. 14 || No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his 15 || claims, he must file a complaint in a new case. 16 DATED: March 29, 2023 _

19 RICHARD F. BOULWARE, I UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28