Turner v. Southern Desert Correctional Center et al
Filing
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ORDER DISMISSING CASE without prejudice for failure to pay the $400 filing fee. IT IS FURTHER ORDERED that 2 Motion for Appointment of Counsel is DENIED as moot. Clerk shall enter judgment accordingly. Signed by Judge James C. Mahan on 7/21/2014. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOHN TURNER,
Plaintiff,
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v.
SOUTHERN DESERT CORRECTIONAL
CENTER et al.,
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Defendants.
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2:14-cv-680-JCM-CWH
ORDER
___________________________________
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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state
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prisoner. On June 10, 2014, this court issued an order denying plaintiff’s application to
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proceed in forma pauperis because plaintiff had “three strikes” pursuant to 28 U.S.C.
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§ 1915(g). (ECF No. 4 at 1-2). The court informed plaintiff that if he did not pay the $400.00
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filing fee in full within thirty days of the date of that order, the court would dismiss the action
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without prejudice. (Id. at 2). The thirty-day period has now expired and plaintiff has not paid
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the full filing fee of $400.00.
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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
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may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure
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to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52,
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53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963
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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal
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for failure to 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) (dismissal for
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failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
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(dismissal for lack of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a
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court order, or failure to comply with local rules, the court must consider several factors: (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. Thompson, 782 F.2d
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at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-
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61; Ghazali, 46 F.3d at 53.
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In the instant case, the court finds that the first two factors, the public’s interest in
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expeditiously resolving this litigation and the court’s interest in managing the docket, weigh in
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favor of dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of
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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in
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filing 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 – public policy favoring disposition of cases
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on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein.
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Finally, a court’s warning to a party that his failure to obey the court’s order will result in
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dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The court’s order requiring
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plaintiff to pay the full filing fee within thirty days expressly stated: “IT IS FURTHER ORDERED
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that this action will be DISMISSED without prejudice unless plaintiff pays the $400.00 filing fee
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in full within thirty (30) days of entry of this order.” (ECF No. 4 at 2). Thus, plaintiff had
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adequate warning that dismissal would result from his noncompliance with the court’s order
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to pay the full filing fee within thirty days.
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It is therefore ordered that this action is dismissed without prejudice based on plaintiff’s
failure to pay the $400.00 filing fee in compliance with this court’s June 10, 2014, order.
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It is further ordered that the motion for appointment of counsel (ECF No. 2) is denied
as moot.
It is further ordered that the clerk of court shall enter judgment accordingly.
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July 21, 2014.
DATED: This _____ day of July, 2014.
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_________________________________
UNITED STATES DISTRICT JUDGE
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