Braunstein v. Hardcastle et al

Filing 6

ORDER dismissing case without prejudice. The Clerk of the Court is instructed to close this case. Signed by Judge Richard F. Boulware, II on 4/27/2018. (Copies have been distributed pursuant to the NEF - BEL)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEVEN BRAUNSTEIN

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Case No. 2:17-cv-00416-RFB-CWH

Plaintiff,
v.

ORDER DISMISSING ACTION

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KATHY HARDCASTLE, et al.,
Defendants.

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In this case, Plaintiff filed an Application for Leave to Proceed in forma pauperis, with an
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attached Complaint. (ECF No. 1). On August 1, 2017, Magistrate Judge Carl W. Hoffman entered
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an order denying the Application and ordering Plaintiff to file the full $400 fee within thirty days,
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and advising Plaintiff that “failure to comply with this order will result in a recommendation that
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[Plaintiff’s] case be dismissed.” (ECF No. 5).
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Pursuant to LR 41-1, the Court has the authority to sua sponte dismiss this case for want
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of prosecution, after 270 days have passed and notice is provided. However, prior to dismissal of
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an action, the Court must weigh the following factors: “(1) the public’s interest in expeditious
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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
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availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
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The Court finds each of the Ghazali factors are met. Both the public interest and the Court’s

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interest weigh in favor of dismissal, as the case has pending since August 1, 2017 with no action

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by Plaintiff. Further, the Court also has the inherent power to dismiss a case for want of

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prosecution. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (citation omitted). The

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Court also finds that the risk of prejudice to defendants weighs in favor of dismissing the case.

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Defendants presumptively face injury when litigation is unreasonably delayed. Henderson, 779

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F.2d at 1423 (citation omitted). By failing to pay the filing fee as ordered by the Magistrate Judge,

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Plaintiff cannot be found to have acted reasonably. Although there is a public policy in favor of

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disposing of cases on their merits, that factor cannot be given great weight where, as here, a

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plaintiff fails to complete a required step for a case to proceed. With regard to the final factor,

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Plaintiff was provided the opportunity to pay the filing fee after his Application for Leave to

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Proceed in forma pauperis was denied. The Magistrate Judge’s order clearly stated that dismissal

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would be recommended if Plaintiff failed to pay the filing fee. Plaintiff therefore received

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sufficient notice that his case would be dismissed if he failed to take the specified action.

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Finally, the Court incorporates by reference the findings of the Magistrate Judge’s order of

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August 1, 2017 which included the finding that the payment of the full filing fee was required

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because Plaintiff had been involved with three previous cases which had been dismissed as

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frivolous or without merit. These findings further support the dismissal of this action.

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Accordingly,

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IT IS ORDERED that Plaintiff’s case is dismissed without prejudice. The Clerk of the

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Court is instructed to close this case.
DATED this 27th day of April, 2018.

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______________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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