2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ROBERTO DURAND, Case No. 3:23-cv-00233-ART-CLB

6 Plaintiff, v. ORDER DISMISSING AND CLOSING 7 CASE CALDWELL, 8 Defendant. 9

10 11 Pro se Plaintiff Roberto Durand, an inmate in the custody of the Nevada 12 Department of Corrections, has not paid the full $402 filing fee or filed a fully 13 complete application to proceed in forma pauperis (“IFP”) in this action. On June 14 20, 2023, this Court denied Durand’s original IFP application because he did not 15 include an inmate trust fund account statement for the previous six-month 16 period with it, and the Court ordered Durand to either pay the full filing fee or 17 file a new fully complete IFP application by August 21, 2023. (ECF No. 4). The 18 Court warned Durand this action could be dismissed if he failed to file a fully 19 complete IFP application with all three required documents by that deadline. (Id. 20 at 2). That deadline has expired, and Durand did not pay the required filing fee 21 or file a fully complete IFP application. Durand instead filed a second IFP 22 application that is incomplete because he again failed to include an inmate trust 23 fund account statement for the previous six-month period. (See ECF No. 5). 24 I. DISCUSSION 25 District courts have the inherent power to control their dockets and “[i]n 26 the exercise of that power, they may impose sanctions including, where 27 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 28 Angeles,

(9th Cir. 1986). A court may dismiss an action based 2 King,

(9th Cir. 1988) (affirming dismissal for failure to 3 comply with local rule requiring pro se plaintiffs to keep court apprised of 4 address); Malone v. U.S. Postal Service,

(9th Cir. 1987) 5 (dismissal for failure to comply with court order). In determining whether to 6 dismiss an action on one of these grounds, the Court must consider: (1) the 7 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 8 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 9 favoring disposition of cases on their merits; and (5) the availability of less drastic 10 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig.,

, 11 1226 (9th Cir. 2006) (quoting Malone,

). 12 The first two factors, the public’s interest in expeditiously resolving this 13 litigation and the Court’s interest in managing its docket, weigh in favor of 14 dismissing this action. The third factor, risk of prejudice to defendants, also 15 weighs in favor of dismissal because a presumption of injury arises from the 16 occurrence of unreasonable delay in filing a pleading ordered by the court or 17 prosecuting an action. See Anderson v. Air West,

(9th Cir. 18 1976). The fourth factor—the public policy favoring disposition of cases on their 19 merits—is greatly outweighed by the factors favoring dismissal. 20 The fifth factor requires the Court to consider whether less drastic 21 alternatives can be used to correct the party’s failure that brought about the 22 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier,

, 23 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 24 the party has disobeyed a court order does not satisfy this factor); accord 25 Pagtalunan v. Galaza,

, 643 & n.4 (9th Cir. 2002)). Courts “need 26 not exhaust every sanction short of dismissal before finally dismissing a case, 27 but must explore possible and meaningful alternatives.” Henderson v. Duncan, 28

(9th Cir. 1986). Because this Court cannot operate without 1 || collecting reasonable fees, and litigation cannot progress without a □□□□□□□□□□ 2 || compliance with the Court’s orders, the only alternative is to enter a second order 3 || setting another deadline. But issuing a second order will only delay the inevitable 4 || and further squander the Court’s finite resources because Durand ignored the 5 || first order. Setting another deadline is not a meaningful alternative given these 6 || circumstances. So the fifth factor favors dismissal. 7 | Il. CONCLUSION 8 Having thoroughly considered these dismissal factors, the Court finds that 9 || they weigh in favor of dismissal. It is therefore ordered that this action is 10 || dismissed without prejudice based on Roberto Durand’s failure to either pay the 11 || full $402 filing fee or file a fully complete application to proceed in forma pauperis 12 || in compliance with this Court’s June 20, 2023, order. The Clerk of Court is 13 || directed to enter judgment accordingly and close this case. No other documents 14 || may be filed in this now-closed case. If Roberto Durand wishes to pursue his 15 || claims, he must file a complaint in a new case and either pay the required filing 16 || fee or properly apply for in forma pauperis status. 17 It is further ordered that the application to proceed in forma pauperis (ECF 18 || No. 5) is denied. 19 20 DATED THIS 12th day of October 2023. 21 22 Ares plod Tb 23 ANNER.TRAUM —C(S UNITED STATES DISTRICT JUDGE 24 25 26 27 28