1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DUSTIN BARRAL, Case No. 3:23-cv-00386-MMD-CLB

7 Petitioner, ORDER v. 8 STATE OF NEVADA, et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Dustin Barral, a pro se Nevada prisoner, commenced this action by filing 13 a Motion to Vacate Judgment and/or Correct Illegal Sentence (ECF No. 1-1) as well as 14 an Application for Leave to Proceed In Forma Pauperis (“IFP”) (ECF No. 3). The Court 15 found that Petitioner did not qualify for a fee waiver, denied his IFP application, and 16 instructed him to pay the $5 filing fee. (ECF No. 4.) In his Motion to Vacate Judgment 17 and/or Correct Illegal Sentence, Petitioner challenges a conviction and sentence imposed 18 by the Eighth Judicial District Court for Clark County, arguing that the state court lacked 19 subject matter jurisdiction. (ECF No. 1-1.) The Court instructed Petitioner to file a petition 20 for writ of habeas corpus on the Court’s required § 2254 form if he intends to pursue a 21 federal habeas case under

. (ECF No. 4 at 2.) The Court warned that 22 his failure to timely and fully comply with the order would result in a dismissal of this action 23 without prejudice and without further advance notice. (Id.) Although Petitioner paid the $5 24 filing fee on September 21, 2023, he did not file a petition for writ of habeas corpus on 25 the Court’s required form.1 (ECF No. 5.)

26 1The Court notes that Petitioner filed a petition for writ of habeas corpus in a 27 separate case. See Barral v. Garrett, Case No. 3:23-cv-00438-MMD-CLB. The Court instructed Petitioner to show cause why the action should not be dismissed as untimely. 28

at ECF No. 5. Following a response to the order to show cause, the Court dismissed 1 II. DISCUSSION 2 District courts have the inherent power to control their dockets and “[i]n the 3 exercise of that power, they may impose sanctions including, where appropriate . . . 4 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles,

, 831 5 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 6 order or comply with local rules. See Carey v. King,

(9th Cir. 7 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 8 keep court apprised of address); Malone v. U.S. Postal Service,

(9th 9 Cir. 1987) (dismissing an action for failure to comply with court order). In determining 10 whether to dismiss an action on one of these grounds, a court must consider: (1) the 11 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 12 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 13 of cases on their merits; and (5) the availability of less drastic alternatives. See In re 14 Phenylpropanolamine Prod. Liab. Litig.,

(9th Cir. 2006) (quoting 15 Malone v. U.S. Postal Serv.,

(9th Cir. 1987)). 16 The first two factors, the public’s interest in expeditiously resolving this litigation 17 and the Court’s interest in managing its docket, weigh in favor of dismissal. The third 18 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 19 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 20 ordered by the court or prosecuting an action. See Anderson v. Air West,

, 21 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of cases on 22 their merits—is greatly outweighed by the factors favoring dismissal. 23 The fifth factor requires the Court to consider whether less drastic alternatives can 24 be used to correct the party’s failure that brought about the Court’s need to consider 25 dismissal. See Yourish v. Cal. Amplifier,

, 992 (9th Cir. 1999) (explaining 26 that considering less drastic alternatives before the party has disobeyed a court order 27 does not satisfy this factor); accord Pagtalunan v. Galaza,

, 643 & n.4 (9th 28 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 1 || “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 2 || order as satisfying this element[,]” has been “eroded” by Yourish). Courts “need not 3 || exhaust every sanction short of dismissal before finally dismissing a case, but must 4 || explore possible and meaningful alternatives.” Henderson v. Duncan,

, 5 || 1424 (9th Cir. 1986). Because litigation cannot progress without Petitioner's compliance 6 || with court orders, the only alternative is to enter a second order setting another deadline. 7 || But the reality of repeating an ignored order is that it often only delays the inevitable and 8 || squanders the court’s finite resources. The circumstances here do not indicate that this 9 || case will be an exception. Setting another deadline is not a meaningful alternative given 10 || these circumstances. Accordingly, the fifth factor favors dismissal. 11 || Il. CONCLUSION 12 It is therefore ordered that this action is dismissed without prejudice based on 13 || Petitioner Dustin Barral’s failure to comply with the Court’s order (ECF No. 4.) 14 It is further ordered that a certificate of appealability is denied as jurists of reason 15 || would not find the Court’s dismissal of the petition to be debatable or wrong. 16 The Clerk of Court is further directed to add Nevada Attorney General Aaron D. 17 || Ford as counsel for respondents and informally serve the Nevada Attorney General by 18 || directing a notice of electronic filing of this order to his office, according to Rule 4 of the 19 || Rules Governing Section 2254 Cases. No response is required from Respondents other 20 || than to respond to any orders of a reviewing court. 21 The Clerk of the Court is further directed to enter final judgment accordingly and 22 || close this case. 23 DATED THIS 2" Day of November 2023. 24

26 MIRANDAM.DU. 97 CHIEF UNITED STATES DISTRICT JUDGE 28