Clemons v. Gentry et al

Filing 5

ORDER that this case is DISMISSED without prejudice based on Clemons's failure to pay the filing fee in compliance with my January 24, 2018, order. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 3/6/2018. (Copies have been distributed pursuant to the NEF - MMM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 De’Marian Clemons, 5 Plaintiff 6 Order Dismissing Case v. 7 2:17-cv-02071-JAD-CWH Gentry, et al., 8 Defendants 9 10 Pro se plaintiff De’Marian Clemons brings this civil-rights action under § 1983 for events 11 that allegedly occurred while he was incarcerated at the Southern Desert Correctional Center.1 12 On January 24, 2018, I denied his application to proceed in forma pauperis without prejudice 13 because Clemons had “three strikes” under 28 U.S.C. § 1915(g), and I gave him until February 14 23, 2018, to pay the $400 filing fee.2 I expressly warned him that his failure to pay the filing fee 15 by that deadline would result in the dismissal of this case.3 The deadline has now passed, and 16 Clemons has not paid the filing fee. 17 District courts have the inherent power to control their dockets and, “[i]n the exercise of 18 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.4 A 19 court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a 20 court order, or failure to comply with local rules.5 In determining whether to dismiss an action 21 22 1 ECF No. 1-1. 23 2 ECF No. 4. 3 Id. 4 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 24 25 26 5 27 28 See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1 for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the 2 court must consider several factors: (1) the public’s interest in expeditious resolution of 3 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 4 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 5 drastic alternatives.6 6 I find that the first two factors—the public’s interest in expeditiously resolving the 7 litigation and the court’s interest in managing the docket—weigh in favor of dismissing this case. 8 The risk-of-prejudice factor also weighs in favor of dismissal because a presumption of injury 9 arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or 10 prosecuting an action.7 The fourth factor is greatly outweighed by the factors in favor of 11 dismissal, and a court’s warning to a party that his failure to obey the court’s order will result in 12 dismissal satisfies the consideration-of-alternatives requirement.8 Clemons was warned that his 13 case would be dismissed without prejudice if he failed to pay the filing fee by February 23, 14 2018.9 So, Clemons had adequate warning that his failure to pay the fee would result in this 15 case’s dismissal. 16 Accordingly, IT IS HEREBY ORDERED that this case is DISMISSED without 17 prejudice based on Clemons’s failure to pay the filing fee in compliance with my January 24, 18 2018, order. 19 ... 20 21 22 23 24 25 1440–41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 6 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260–61; Ghazali, 46 F.3d at 53. 7 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 27 8 Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424. 28 9 ECF No. 4. 26 2 1 2 3 The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. DATED: March 6, 2018. 4 _______________________________ U.S. District Judge Jennifer A. Dorsey 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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