Maturino v. Sanft

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * Case No. 2:24-cv-00350-JAD-BNW Adrian Tremillo Maturino, 5 Plaintiff, ORDER ADOPTING REPORT AND 6 v. RECOMMENDATION Michael Sanft, et al., ECF No. 7 8 Defendants.

10 On July 24, 2024, the magistrate judge entered this report and recommendation: 11 On April 1, 2024, the Court ordered Plaintiff to either file an in forma pauperis application or pay the filing fee. ECF No. 3. The Court then granted Plaintiff’s motion for a 45- day extension to comply with the order. ECF No. 5. After the extended deadline passed, the Court issued another minute order giving Plaintiff until July 8, 2024, to file the in forma pauperis application or pay the fee. ECF No. 6. It warned Plaintiff that failure to comply with the order may result in the Court recommending that the case be dismissed. Id. Despite this, Plaintiff has neither filed the application nor paid the fee. Accordingly, the Court recommends that this case be dismissed without prejudice.

19 The law permits a district court to dismiss an action based on a party’s failure to prosecute his case or comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court’s orders). In determining whether to dismiss an action, the court must consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 1 The first two factors, the public’s interest in expeditiously resolving this litigation and the court’s interest in managing its docket, weigh in favor of dismissing Plaintiff’s claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of cases on their merits— weighs against dismissal.

7 The fifth factor requires the court to consider whether less drastic alternatives can be used to correct the party’s failure that brought about the court’s need to consider dismissal. Courts “need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because Plaintiff has failed to file an in forma pauperis application or pay the filing fee, despite a 45-day extension and two court orders telling him to do so, the only alternative is to enter a third order directing Plaintiff to comply. The circumstances here do not indicate that Plaintiff needs additional time nor is there evidence that he did not receive the Court’s two previous orders. So, the fifth factor favors dismissal.

16 In balance, the factors above favor a recommendation of dismissal. See Hernandez v. City of El Monte, 138 F.3d 393 (9th Cir. 1998) (holdings dismissal is proper where least four factors support dismissal or where at least three factors “strongly” support dismissal).

19 / / / / / / / / / / / / / / / / / / / / / / / / / / / 1 IT IS THEREFORE RECOMMENDED that THIS ACTION BE DISMISSED || without prejudice for failure to comply with multiple court-ordered deadlines.

4 Order Adopting Report and Recommendation 5 The deadline for any party to object to this recommendation was August 7, 2024, and no || party filed anything or asked to extend the deadline to do so. “[N]o review is required of a || magistrate judge’s report and recommendation unless objections are filed.” United States v. || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Having reviewed the report and || recommendation, I find good cause to adopt it, and I do. IT IS THEREFORE ORDERED that || the Magistrate Judge’s Report and Recommendation [ECF No. 7] is ADOPTED in its entirety.

11 || This case is DISMISSED without prejudice, and the Clerk of Court is directed to CLOSE THIS |} CASE.

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