2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 WILLIAM MISIEWICZ, Case No. 2:22-cv-01180-RFB-NJK

7 Plaintiff, ORDER v. 8 NEVADA DEPARTMENT OF 9 CORRECTIONS, et al.,

10 Defendants.

11

12 Plaintiff William Misiewicz brings this civil-rights action under

to 13 redress constitutional violations that he claims he suffered while incarcerated at High Desert State 14 Prison. ECF No. 6. On August 21, 2023, this Court issued a screening order dismissing the 15 complaint without prejudice and with leave to amend within 60 days. ECF No. 12. The Court 16 warned Misiewicz that the action could be dismissed if he failed to file an amended complaint by 17 that deadline.

. That deadline expired and Misiewicz did not file an amended complaint, 18 or otherwise respond to the Court’s order. 19 I. DISCUSSION 20 District courts have the inherent power to control their dockets and “[i]n the exercise of 21 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 22 Thompson v. Hous. Auth. of City of Los Angeles,

(9th Cir. 1986). A court may 23 dismiss an action based on a party’s failure to obey a court order or comply with local rules. See 24 Carey v. King,

(9th Cir. 1988) (affirming dismissal for failure to comply 25 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal 26 Service,

(9th Cir. 1987) (dismissal for failure to comply with court order). In 27 determining whether to dismiss an action on one of these grounds, the Court must consider: (1) 28 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 2 cases on their merits; and (5) the availability of less drastic alternatives. See In re 3 Phenylpropanolamine Prod. Liab. Litig.,

(9th Cir. 2006) (quoting Malone, 4

. 5 The first two factors, the public’s interest in expeditiously resolving this litigation and the 6 Court’s interest in managing its docket, weigh in favor of dismissal of Misiewicz’s claims. The 7 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 8 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered 9 by the court or prosecuting an action. See Anderson v. Air West,

(9th Cir. 1976). 10 The fourth factor—the public policy favoring disposition of cases on their merits—is greatly 11 outweighed by the factors favoring dismissal. 12 The fifth factor requires the Court to consider whether less drastic alternatives can be used 13 to correct the party’s failure that brought about the Court’s need to consider dismissal. See Yourish 14 v. Cal. Amplifier,

, 992 (9th Cir. 1999) (explaining that considering less drastic 15 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 16 Pagtalunan v. Galaza,

, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive 17 force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives 18 prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting 19 of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been 20 “eroded” by Yourish). Courts “need not exhaust every sanction short of dismissal before finally 21 dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 22

(9th Cir. 1986). Because this action cannot realistically proceed until and 23 unless Misiewicz files an amended complaint, the only alternative is to enter a second order setting 24 another deadline. But the reality of repeating an ignored order is that it often only delays the 25 inevitable and squanders the Court’s finite resources. The circumstances here do not indicate that 26 this case will be an exception: there is no hint that Misiewicz needs additional time or evidence 27 that he did not receive the Court’s order. Setting another deadline is not a meaningful alternative 28 given these circumstances. So the fifth factor favors dismissal. 1 || UL. CONCLUSION 2 Having thoroughly considered these dismissal factors, the Court finds that they weigh in 3 || favor of dismissal. 4 IT IS THEREFORE ORDERED that this action is dismissed without prejudice based on 5 || Misiewicz’s failure to file an amended complaint in compliance with this Court’s August 21, 2023, 6 || order. The Clerk of Court is directed to enter judgment accordingly and close this case. No other 7 || documents may be filed in this now-closed case. If Misiewicz wishes to pursue his claims, he must 8 || file a complaint in a new case. 9 IT IS FURTHER ORDERED that Misiewicz’s application to proceed in forma pauperis 10 || (ECF No. 8) is denied as moot. 11 IT IS FURTHER ORDERED that Misiewicz may move to reopen this case and vacate the 12 || judgment by filing a motion for reconsideration of this order. In this motion, Misiewicz is required 13 || to explain what circumstances delayed him from paying the filing fee or filing the application to 14 || proceed in forma pauperis. If the Court finds there to be good cause or a reasonable explanation 15 || therein, the Court will reopen the case and vacate the judgment. 16 17 18 DATED: January 19, 2024. 19 20 AS 22 RICHARD F. BOULWARE, 53 UNITED STATES DISTRICT JUDGE 24 25 26 27 28