Tagle v. Anderson et al

Filing 12

ORDER denying 10 Motion to issue summons.; denying 11 Motion for District Judge to Reconsider Order.; Case terminated. Signed by Judge James C. Mahan on 1/6/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 VICTOR TAGLE, ) ) Plaintiff, ) ) v. ) ) MICHAEL ANDERSON et al., ) ) Defendants. ) ) ___________________________________ ) 2:16-cv-00757-JCM-PAL ORDER 14 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state 15 prisoner. On December 1, 2016, this court issued an order denying plaintiff’s application to 16 proceed in forma pauperis because plaintiff had “three strikes” pursuant to 28 U.S.C. 17 § 1915(g). (ECF No. 9 at 1-2). The court informed plaintiff that if he did not pay the $400.00 18 filing fee in full within thirty days from the date of that order, the court would dismiss the action 19 without prejudice. (Id. at 2). The thirty-day period has now expired and plaintiff has not paid 20 the full filing fee of $400.00. 21 District courts have the inherent power to control their dockets and “[i]n the exercise of 22 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 23 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court 24 may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure 25 to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 26 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 27 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 28 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 1 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 2 failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 3 (dismissal for lack of prosecution and failure to comply with local rules). 4 In determining whether to dismiss an action for lack of prosecution, failure to obey a 5 court order, or failure to comply with local rules, the court must consider several factors: (1) 6 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 7 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 8 cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d 9 at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260- 10 61; Ghazali, 46 F.3d at 53. 11 In the instant case, the court finds that the first two factors, the public’s interest in 12 expeditiously resolving this litigation and the court’s interest in managing the docket, weigh in 13 favor of dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of 14 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 15 filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 16 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases 17 on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein. 18 Finally, a court’s warning to a party that his failure to obey the court’s order will result in 19 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 20 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The court’s order requiring 21 plaintiff to pay the full filing fee within thirty days expressly stated: “It is further ordered that this 22 action will be dismissed without prejudice unless plaintiff pays the $400.00 filing fee in full 23 within thirty (30) days of entry of this order.” (ECF No. 9 at 2). Thus, plaintiff had adequate 24 warning that dismissal would result from his noncompliance with the court’s order to pay the 25 full filing fee within thirty days. 26 It is therefore ordered that this action is dismissed without prejudice based on plaintiff’s 27 failure to pay the $400.00 filing fee in compliance with this court’s December 1, 2016, order. 28 It is further ordered that the motion to issue summons (ECF No. 10) is denied. 2 1 It is further ordered that the motion for reconsideration (ECF No. 11) is denied. 1 2 It is further ordered that the clerk of court shall enter judgment accordingly. 3 4 January 6, day of DATED: This _____ 2017. January, 2017. 5 _________________________________ UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 To the extent that plaintiff is attempting to challenge his three strikes status, the court denies the motion for reconsideration because plaintiff has three strikes. 3

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