Welch v. Wilson et al

Filing 5

ORDER DISMISSING CASE without Prejudice. The Clerk of Court is directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. If Welch wishes to pursue his claims, he must file a complaint i n a new case. IT IS FURTHER ORDERED that Plaintiff may move to reopen this case and vacate the judgment by filing a motion for reconsideration of this order. In this motion, the Plaintiff is required to explain what circumstances delayed him fr om paying the filing fee or filing the application to proceed in forma pauperis and a complaint in compliance with LSR 2-1. If the Court finds there to be good cause or a reasonable explanation therein, the Court will reopen the case and vacate the judgment. Signed by Judge Richard F. Boulware, II on 6/3/2024. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - MAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KENTRELL D. WELCH,

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v.

Case No. 2:24-cv-00460-RFB-NJK
Plaintiff,

ORDER

DEWAYNE WILSON, et al.,
Defendants.

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Plaintiff Kentrell D. Welch brings this civil-rights action under 42 U.S.C. § 1983 to redress

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constitutional violations that he claims he suffered while incarcerated in the custody of the Nevada

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Department of Corrections. (ECF No. 1-1.) On March 12, 2024, this Court ordered Welch to file

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a fully complete application to proceed in forma pauperis or pay the full $405 filing fee on or

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before May 13, 2024. (ECF No. 3.) The Court warned Welch that the action could be dismissed if

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he failed to file a fully complete application to proceed in forma pauperis with all three documents

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or pay the full $405 filing fee for a civil action by that deadline. (Id. at 2.) The Court’s order came

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back as undeliverable to the address that Welch provided. Welch has not filed a fully complete

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application to proceed in forma pauperis, paid the full $405 filing fee, filed an updated address, or

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otherwise responded to the Court’s order.

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I.

DISCUSSION

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District courts have the inherent power to control their dockets and “[i]n the exercise of

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that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.

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Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may

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dismiss an action based on a party’s failure to obey a court order or comply with local rules. See

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply

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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal

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Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order). In

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determining whether to dismiss an action on one of these grounds, the Court must consider: (1)

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the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic alternatives. See In re

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Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v.

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U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)).

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The first two factors, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing its docket, weigh in favor of dismissal of Welch’s claims. The third

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factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of

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injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court

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or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth

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factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by

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the factors favoring dismissal.

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The fifth factor requires the Court to consider whether less drastic alternatives can be used

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to correct the party’s failure that brought about the Court’s need to consider dismissal. See Yourish

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v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic

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alternatives before the party has disobeyed a court order does not satisfy this factor); accord

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Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive

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force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives

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prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting

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of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been

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“eroded” by Yourish). Courts “need not exhaust every sanction short of dismissal before finally

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dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. Duncan,

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779 F.2d 1421, 1424 (9th Cir. 1986).

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Because this action cannot realistically proceed until and unless Welch either files a fully

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complete application to proceed in forma pauperis or pays the $405 filing fee for a civil action,

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the only alternative is to enter a second order setting another deadline. But the reality of repeating
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an ignored order is that it often only delays the inevitable and squanders the Court’s finite

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resources. The circumstances here do not indicate that this case will be an exception: the Court’s

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previous order came back as undeliverable, and Plaintiff has not provided an updated address.

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Thus, it is unlikely that Welch would receive a second order setting another deadline. Setting

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another deadline is not a meaningful alternative given these circumstances. So the fifth factor

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favors dismissal.

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II.

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CONCLUSION
Having thoroughly considered these dismissal factors, the Court finds that they weigh in

favor of dismissal.

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IT IS THEREFORE ORDERED that this action is dismissed without prejudice based on

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Welch’s failure to file a fully complete application to proceed in forma pauperis or pay the full

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$405 filing fee in compliance with this Court’s March 12, 2024, order. The Clerk of Court is

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directed to enter judgment accordingly and close this case. No other documents may be filed in

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this now-closed case. If Welch wishes to pursue his claims, he must file a complaint in a new case.

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IT IS FURTHER ORDERED that Plaintiff may move to reopen this case and vacate the

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judgment by filing a motion for reconsideration of this order. In this motion, the Plaintiff is

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required to explain what circumstances delayed him from paying the filing fee or filing the

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application to proceed in forma pauperis and a complaint in compliance with LSR 2-1. If the Court

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finds there to be good cause or a reasonable explanation therein, the Court will reopen the case

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and vacate the judgment.

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DATED: June 3, 2024

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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