Moore v. Caldwell Barr

Filing 11

ORDER - As detailed herein, it is ordered that this action is dismissed without prejudice based on Plaintiff's failure to file an application to proceed in forma pauperis for non-prisoners or pay the $402 filing fee in compliance wit h this Court's August 3, 2022 order. 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 Plaintiff wishes to pursue his claims, he must file a complaint in a new case and file an application to proceed in forma pauperis for non-prisoners or pay the $402 filing fee. Signed by District Judge Anne R. Traum on 9/15/2022. (Copies have been distributed pursuant to the NEF - CJS)

Case 3:21-cv-00514-ART-CLB Document 11 Filed 09/15/22 Page 1 of 3
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARLOS MOORE,

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v.

Case No. 3:21-cv-00514-ART-CLB
Plaintiff,

ORDER

DR. S CALDWELL BARR,
Defendant.

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Plaintiff Marlos Moore brings this civil-rights action under 42 U.S.C.

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§ 1983 to redress constitutional violations that he claims he suffered while

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incarcerated at Lovelock Correctional Center. (ECF No. 1-1.) On August 3, 2022,

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this Court denied Plaintiff’s application to proceed in forma pauperis for prisoners

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as moot and ordered Plaintiff to file an application to proceed in forma pauperis

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for non-prisoners, or pay the $402 filing fee, within 30 days. (ECF No. 10.) That

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deadline expired and Plaintiff did not file an application to proceed in forma

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pauperis for non-prisoners, pay the $402 filing fee, or otherwise respond to the

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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

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the exercise of that power, they may impose sanctions including, where

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appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los

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Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based

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on a party’s failure to obey a court order or comply with local rules. See Carey v.

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

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comply with local rule requiring pro se plaintiffs to keep court apprised of

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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

Case 3:21-cv-00514-ART-CLB Document 11 Filed 09/15/22 Page 2 of 3
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(dismissal for failure to comply with court order). In determining whether to

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

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

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217,

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1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th

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Cir. 1987)).

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

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litigation and the Court’s interest in managing its docket, weigh in favor of

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dismissal of Plaintiff’s claims. The third factor, risk of prejudice to defendants,

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also weighs in favor of dismissal because a presumption of injury arises from the

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occurrence of unreasonable delay in filing a pleading ordered by the court or

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

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1976). The fourth factor—the public policy favoring disposition of cases on their

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merits—is greatly outweighed by the factors favoring dismissal.

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The fifth factor requires the Court to consider whether less drastic

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alternatives can be used to correct the party’s failure that brought about the

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Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983,

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992 (9th Cir. 1999) (explaining that considering less drastic alternatives before

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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

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“the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted

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pursuit of less drastic alternatives prior to disobedience of the court’s order as

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satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled

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with the warning of dismissal for failure to comply[,]” have been “eroded” by

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Yourish). Courts “need not exhaust every sanction short of dismissal before

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finally dismissing a case, but must explore possible and meaningful
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Case 3:21-cv-00514-ART-CLB Document 11 Filed 09/15/22 Page 3 of 3
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alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).

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Because this action cannot realistically proceed until and unless Plaintiff either

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files a fully complete application to proceed in forma pauperis for non-prisoners

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or pays the $402 filing fee for a civil action, the only alternative is to enter another

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order setting another deadline. But the reality of repeating an ignored order is

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that it often only delays the inevitable and squanders the Court’s finite resources.

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The circumstances here do not indicate that this case will be an exception: there

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is no hint that Plaintiff needs additional time or evidence that he did not receive

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the Court’s order. Setting another deadline is not a meaningful alternative given

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these circumstances. So the fifth factor favors dismissal.

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II.

CONCLUSION

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Having thoroughly considered these dismissal factors, the Court finds that

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they weigh in favor of dismissal. It is therefore ordered that this action is

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dismissed without prejudice based on Plaintiff’s failure to file an application to

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proceed in forma pauperis for non-prisoners or pay the $402 filing fee in

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compliance with this Court’s August 3, 2022 order. The Clerk of Court is directed

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

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filed in this now-closed case. If Plaintiff wishes to pursue his claims, he must file

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a complaint in a new case and file an application to proceed in forma pauperis

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for non-prisoners or pay the $402 filing fee.

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DATED THIS 15th day of September 2022.

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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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