Fitzgerald v. Nevada Department et al

Filing 15

ORDER - It is therefore ordered that this action is dismissed without prejudice based on Plaintiff's failure to file a non-prisoner application to proceed in forma pauperis or pay the full $402 filing fee in compliance with th is Courts June 23, 2022, order, ECF No. 14 . 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. Signed by Chief Judge Miranda M. Du on 8/1/2022. (Copies have been distributed pursuant to the NEF - CJD)

Case 3:22-cv-00011-MMD-CSD Document 15 Filed 08/01/22 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARTY SCOTT FITZGERALD,

Case No. 3:22-cv-00011-MMD-CSD

Plaintiff,

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ORDER

v.
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MARY BAKER, et al.,
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Defendants.
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Pro se Plaintiff Marty Scott Fitzgerald 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 incarcerated

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at Northern Nevada Correctional Center. (ECF Nos. 1-1, 13.) On June 23, 2022, this

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Court gave Plaintiff thirty days to file a non-prisoner application to proceed in forma

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pauperis or pay the full $402 filing fee. (ECF No. 14.) The Court warned Plaintiff that the

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action could be dismissed if he failed to file a non-prisoner application to proceed in forma

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pauperis or pay the full $402 filing fee for a civil action by that deadline. (Id.) That deadline

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expired, and Plaintiff did not file a non-prisoner application to proceed in forma pauperis,

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pay the full $402 filing fee, or otherwise respond.

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

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831

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(9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court

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order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to

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keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th

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Cir. 1987) (affirming dismissal for failure to comply with court order). In determining

Case 3:22-cv-00011-MMD-CSD Document 15 Filed 08/01/22 Page 2 of 3

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whether to 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 manage its

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

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of 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

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Malone v. 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

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

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claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal

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because a presumption of injury arises from the occurrence of unreasonable delay in filing

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a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of

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cases on their merits—is greatly outweighed by the factors favoring dismissal.

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

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be used to correct the party’s failure that brought about the Court’s need to consider

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dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining

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that considering less drastic alternatives before the party has disobeyed a court order

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does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th

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Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that

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“implicitly accepted pursuit of last drastic alternatives prior to disobedience of the court’s

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order as 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 Yourish).

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Courts “need not exhaust every sanction short of dismissal before finally dismissing a

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case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779

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F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and

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unless Plaintiff either files a non-prisoner application to proceed in forma pauperis or pays

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the $402 filing fee for a civil action, the only alternative is to enter a second order setting

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another deadline. But the reality of repeating an ignored order is that it often only delays

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Case 3:22-cv-00011-MMD-CSD Document 15 Filed 08/01/22 Page 3 of 3

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the inevitable and squanders the Court’s finite resources. The circumstances here do not

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indicate that this case will be an exception: there is no hint that Plaintiff needs additional

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time or evidence that he did not receive the Court’s order. Setting another deadline is not

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a meaningful alternative given these circumstances. So the fifth factor favors dismissal.

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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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Plaintiff’s failure to file a non-prisoner application to proceed in forma pauperis or pay the

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full $402 filing fee in compliance with this Court’s June 23, 2022, order.

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The Clerk of Court is directed to enter judgment accordingly and close this case.

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No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his

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claims, he must file a complaint in a new case.

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DATED THIS 1st Day of August 2022.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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