Clemons v. Gentry et al
Filing
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ORDER that this action is dismissed without prejudice for Plaintiff's failure to comply with this Court's Order ECF No. 3 ; Clerk directed to enter judgment. Signed by Judge Miranda M. Du on 6/5/2018. (Copies have been distributed pursuant to the NEF - KW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DEMARIAN A. CLEMONS,
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Case No. 2:17-cv-01159-MMD-VCF
Plaintiff,
ORDER
v.
GENTRY, et al.,
Defendants.
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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by
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a state prisoner. On April 26, 2018, this Court issued an order denying Plaintiff’s
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application to proceed in forma pauperis because Plaintiff had “three strikes” pursuant to
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28 U.S.C. § 1915(g). (ECF No. 3.) The Court informed Plaintiff that if he did not pay the
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$400.00 filing fee in full within thirty days of the date of that order, the Court would dismiss
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the action without prejudice. (Id. at 2.) The thirty-day period has now expired and Plaintiff
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has not paid 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
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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, with prejudice, based on a party’s failure
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to prosecute an action, failure to obey a court order, or failure to comply with local rules.
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See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance
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with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for
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failure to comply with an order requiring amendment of complaint); Carey v. King, 856
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F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring
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pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833
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F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson
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v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and
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failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey
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a court order, or failure to comply with local rules, a district court must consider several
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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need
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to 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. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833
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F.2d at 130; Ferdik, 963 F.2d at 1260-61; 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,
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weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs
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in favor of dismissal, since a presumption of injury arises from the occurrence of
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unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See
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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy
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favoring disposition of cases on their merits – is greatly outweighed by the factors in favor
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of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey
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the court’s order will result in dismissal satisfies the “consideration of alternatives”
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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d
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at 1424. The Court’s order requiring Plaintiff to pay the full filing fee within thirty days
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expressly stated: “It is further ordered that this action will be dismissed without prejudice
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unless Plaintiff pays the $400.00 filing fee in full within thirty (30) days from the date of
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this order.” (ECF No. 3 at 2.) Thus, Plaintiff had adequate warning that dismissal would
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result from his noncompliance with the Court’s order to pay the full filing fee within thirty
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days.
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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 pay the $400.00 filing fee in compliance with this Court’s April 26,
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2018, order.
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It is further ordered that the Clerk of Court enter judgment accordingly.
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DATED THIS 5th day of June 2018.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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