Bacon v. Cox et al

Filing 15

ORDER 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 1/24/2018 and 2/9/2018 orders. The Clerk of Court shall enter judgment accordingly and close this case. Signed by Judge Richard F. Boulware, II on 8/29/2018., Case terminated. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PERCY LAVAE BACON,

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Case No. 2:17-cv-01744-RFB-GWF

Plaintiff,

ORDER

v.
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JAMES COX et al.,
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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 January 24, 2018, this Court issued an order denying Plaintiff’s two

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applications to proceed in forma pauperis because Plaintiff had “three strikes” pursuant

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to 28 U.S.C. § 1915(g). (ECF No. 5). The Court informed Plaintiff that if he did not pay

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the $400.00 filing fee in full within thirty days from the date of that order, the Court would

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dismiss the action without prejudice.

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reconsideration, the Court denied the motion on February 9, 2018, and granted Plaintiff

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fifteen days to pay the $400 filing fee in full. (ECF No. 8). Plaintiff appealed and the Ninth

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Circuit dismissed the appeal. (ECF Nos. 10, 11, 12). Plaintiff has not paid the full filing

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fee of $400.00.

(Id. at 2).

After Plaintiff filed a motion for

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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

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for 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, the court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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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

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F.2d at 1424. The Court’s orders requiring Plaintiff to pay the full filing fee expressly

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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 days of the original order

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and fifteen days from the order denying the motion for reconsideration. (ECF No. 5 at 2;

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ECF No. 8 at 2). Thus, Plaintiff had adequate warning that dismissal would result from his

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noncompliance with the Court’s orders to pay the full filing fee.

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IT IS THEREFORE ORDERED that this action is dismissed without prejudice

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based on Plaintiff’s failure to pay the $400.00 filing fee in compliance with this Court’s

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January 24, 2018 and February 9, 2018 orders.

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IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly and close this case.

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DATED: August 29, 2018.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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