Merritt v. Neven

Filing 51

ORDER. The Respondents' 49 Motion to Reopen Case is GRANTED. The Respondents' 50 Motion to Dismiss is GRANTED. This action is DISMISSED with prejudice based on the petitioner's failure to prosecute this action. The clerk of court is directed to enter final judgment and re-close this case. Signed by Judge Jennifer A. Dorsey on 6/28/2023. (Copies have been distributed pursuant to the NEF - AF)

Case 2:13-cv-02347-JAD-PAL Document 51 Filed 06/28/23 Page 1 of 3

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UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 William Merritt,
4

Petitioner

5 v.
6 D. Neven, et al.,
7

Respondents

Case No.: 2:13-cv-02347-JAD-PAL
Order Granting Respondents’
Motion to Reopen Case and
Motion to Dismiss
[ECF Nos. 49, 50]

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9

Pro se petitioner William Merritt has not taken any action to prosecute this case after the

10 Nevada Supreme Court denied his appeal. 1 Because the petitioner failed to comply with my
11 instructions to file a motion to reopen within forty-five days of issuance of the remittitur by the
12 Nevada Supreme Court, I grant the respondents’ motions to reopen 2 and dismiss this case. 3
13

I.

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Background
In March 2016, I administratively closed this action while the petitioner exhausted his

15 unexhausted claims in state court. 4 I also instructed him to file a motion to reopen within 45
16 days of issuance of the remittitur by the Nevada Supreme Court. 5 The state court denied the
17 petitioner’s state habeas petition and the Nevada Supreme Court denied his appeal. 6 Remittitur
18 issued in January 2020.
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1

ECF No. 50-4.

2

ECF No. 49.

3

ECF No. 50.

4

ECF No. 42.

5

Id.

6

ECF Nos. 50-1, 50-4.

Case 2:13-cv-02347-JAD-PAL Document 51 Filed 06/28/23 Page 2 of 3

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II.

2

Discussion
District courts have the inherent power to control their dockets and “in the exercise of

3 that power, they may impose sanctions, including where appropriate … dismissal of a case.” 7 A
4 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
5 failure to obey a court order, or failure to comply with local rules. 8 In determining whether to
6 dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with
7 local rules, I must consider several factors: (1) the public’s interest in expeditious resolution of
8 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;
9 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less
10 drastic alternatives. 9
11

I find that the first two factors weigh in favor of dismissal. Since a presumption of injury

12 arises from the occurrence of unreasonable delay in prosecuting an action, the third factor, risk of
13 prejudice to respondents, also weighs in favor of dismissal. 10 The fourth factor, public policy
14 favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of
15 dismissal. More than three years have elapsed since the issuance of remittitur and the petitioner
16 has not filed a motion to reopen. Petitioner did not respond to the motion to dismiss, and has
17 failed to otherwise prosecute this action. Under such circumstances, there is no lesser alternative
18 than dismissal of this action with prejudice.
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7

Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).

8

See, e.g., Pagtulunan v. Galaza, 291 P.3d 639, 643 (9th Cir. 2002) (dismissal of habeas corpus
petition with prejudice for failure to prosecute action and failure to comply with a court order).
9

Id. at 642.

10

See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
2

Case 2:13-cv-02347-JAD-PAL Document 51 Filed 06/28/23 Page 3 of 3

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III.

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Certificate of Appealability
This is a final order adverse to the petitioner. Rule 11 of the Rules Governing Section

3 2254 Cases requires issuance or denial of a certificate of appealability (“COA”). Pursuant to 28
4 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing
5 of the denial of a constitutional right.” For procedural rulings, a COA will issue only if
6 reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a
7 constitutional right and (2) whether this court’s procedural ruling was correct. 11 I find that a
8 certificate of appealability is unwarranted.
9

IV.

Conclusion

10

IT IS THEREFORE ORDERED that:

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1. The Respondents’ Motion to Reopen Case (ECF No. 49) is GRANTED.

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2. The Respondents’ Motion to Dismiss (ECF No. 50) is GRANTED.

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3. This action is DISMISSED with prejudice based on the petitioner’s failure to

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prosecute this action.

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4. The Clerk of the Court is directed to ENTER FINAL JUDGMENT accordingly

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and re-CLOSE THIS CASE.

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18

U.S. District Judge Jennifer A. Dorsey
June 28, 2023

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11

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 &
n.4 (1983)).
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