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
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`DISTRICT OF NEVADA
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`Case No.: 2:13-cv-02347-JAD-PAL
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`Order Granting Respondents’
`Motion to Reopen Case and
`Motion to Dismiss
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`[ECF Nos. 49, 50]
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`Petitioner
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`William Merritt,
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`v.
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`D. Neven, et al.,
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`Respondents
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`Pro se petitioner William Merritt has not taken any action to prosecute this case after the
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`Nevada Supreme Court denied his appeal.1 Because the petitioner failed to comply with my
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`instructions to file a motion to reopen within forty-five days of issuance of the remittitur by the
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`Nevada Supreme Court, I grant the respondents’ motions to reopen2 and dismiss this case.3
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`I.
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`Background
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`In March 2016, I administratively closed this action while the petitioner exhausted his
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`unexhausted claims in state court.4 I also instructed him to file a motion to reopen within 45
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`days of issuance of the remittitur by the Nevada Supreme Court.5 The state court denied the
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`petitioner’s state habeas petition and the Nevada Supreme Court denied his appeal.6 Remittitur
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`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.
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`Case 2:13-cv-02347-JAD-PAL Document 51 Filed 06/28/23 Page 2 of 3
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`II.
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`Discussion
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`District courts have the inherent power to control their dockets and “in the exercise of
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`that power, they may impose sanctions, including where appropriate … dismissal of a case.”7 A
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`court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
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`failure to obey a court order, or failure to comply with local rules.8 In determining whether to
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`dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with
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`local rules, I must consider several factors: (1) the public’s interest in expeditious resolution of
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`litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;
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`(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less
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`drastic alternatives.9
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`I find that the first two factors weigh in favor of dismissal. Since a presumption of injury
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`arises from the occurrence of unreasonable delay in prosecuting an action, the third factor, risk of
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`prejudice to respondents, also weighs in favor of dismissal.10 The fourth factor, public policy
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`favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of
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`dismissal. More than three years have elapsed since the issuance of remittitur and the petitioner
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`has not filed a motion to reopen. Petitioner did not respond to the motion to dismiss, and has
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`failed to otherwise prosecute this action. Under such circumstances, there is no lesser alternative
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`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).
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`Case 2:13-cv-02347-JAD-PAL Document 51 Filed 06/28/23 Page 3 of 3
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`III. Certificate of Appealability
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`This is a final order adverse to the petitioner. Rule 11 of the Rules Governing Section
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`2254 Cases requires issuance or denial of a certificate of appealability (“COA”). Pursuant to 28
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`U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing
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`of the denial of a constitutional right.” For procedural rulings, a COA will issue only if
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`reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a
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`constitutional right and (2) whether this court’s procedural ruling was correct.11 I find that a
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`certificate of appealability is unwarranted.
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`IV. Conclusion
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`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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`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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