Fernandez v. Jackson et al

Filing 35

ORDER that the Motion for Reconsideration (ECF No. 34 ) is DENIED; the case is DISMISSED without prejudice; Clerk directed to enter judgment and close the case. Signed by Judge Robert C. Jones on 5/10/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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KEVIN FERNANDEZ,
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Plaintiff,
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vs.
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BERT JACKSON et al.,
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Defendants.
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3:13-cv-00670-RCJ-WGC
ORDER

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This is a prisoner civil rights complaint under 42 U.S.C. § 1983. Plaintiff Kevin

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Fernandez has sued multiple Defendants based on events that occurred at Ely State Prison. The

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Court dismissed with prejudice upon screening under 28 U.S.C. § 1915A and denied Plaintiff’s

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application to proceed in forma pauperis (“IFP”). The Court of Appeals affirmed dismissal of

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the due process claim based on denial of parole but ruled that the retaliation claim against

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Jackson and Marikami based on their alleged alteration of Plaintiff’s mental health records in

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retaliation for filing a grievance should not have been dismissed, and that Plaintiff should have

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been given leave to amend the claim against other Defendants. The Court of Appeals also

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perceived a potential due process claim based on Plaintiff having been labelled as mentally ill

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and a sex offender and noted that this Court should address that issue in the first instance on

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remand. Since denial of supplemental jurisdiction over the state law claims based on the fact

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that all federal claims had been dismissed, see 28 U.S.C. § 1367(c)(3), was no longer supported

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given the partial reversal, this Court should reconsider supplemental jurisdiction on remand.

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Finally, because the Court had denied the IFP application not on the merits of the application

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itself but because the Complaint stated no claims, the Court of Appeals reversed denial of the

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IFP application for reconsideration here in the first instance. The Court reinstated the IFP

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application and deferred a decision.

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In another case brought by Plaintiff, No. 3:16-cv-350, 1 the Court denied Plaintiff’s IFP

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application because he had at least three “strikes” under the Prison Litigation Reform Act and

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did not allege that he was “under imminent danger of serious physical injury.” 28 U.S.C.

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§ 1915(g). Although Plaintiff alleged surreptitious poisoning of his food, he had been transferred

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to New Hampshire, far from the defendants. The strikes the Court found were: (1) Case No.

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3:13-cv-412, in which Judge Du dismissed for failure to state a claim; (2) Case No. 3:06-cv-511,

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in which Judge Sandoval dismissed the federal causes of action for failure to state a claim and

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declined jurisdiction over the state law claims; and (3)–(4) Case No. 1:13-cv-94 in the District of

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North Dakota, in which the district court dismissed for failure to state a claim, and the Eighth

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Circuit summarily affirmed under Eighth Circuit Rule 47A(a), indicating that the Court of

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Appeals found the appeal to be “frivolous and entirely without merit.” The Court of Appeals

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reversed, ruling: (1) the Eighth Circuit’s affirmance in the North Dakota case did not count as a

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strike, because although the panel cited a circuit rule expressly applicable to appeals that are

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“frivolous and entirely without merit,” the panel did not separately recite those words in its

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order; and (2) the dismissal of the ‘511 Case did not count as a strike under the intervening

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precedent of Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017) because the case had been

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removed from state court.

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1 Plaintiff currently has five open prisoner civil rights cases in this District alone, as well as nine
closed cases.
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In the interim, however, Plaintiff has incurred another strike. In Case No. 1:17-cv-226 in

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the District of New Hampshire, the district court dismissed the federal causes of action for failure

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to state a claim and declined jurisdiction over the state law claims. (See R&R, ECF No. 16 in No.

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1:17-cv-226 (D.N.H.); Order Adopting R&R, ECF No. 20 in No. 1:17-cv-226 (D.N.H.)). The

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Court therefore again denied the IFP application and deferred screening, giving Plaintiff 30 days

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to pay the filing fee. He has not done so, but has asked the Court to reconsider. The Court

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declines to reconsider.

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District courts have the inherent power to control their dockets and “[i]n the exercise of
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 may

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dismiss an action, even 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 for

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack

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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) the

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

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61;

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Ghazali, 46 F.3d at 53.

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Here, the Court finds that the first two factors, the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing the docket, weigh in favor of

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dismissal. These factors weigh heavily in favor of dismissal where the congressional purpose of

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the PLRA is implicated, i.e., the three-strikes rule. The risk of prejudice to Defendants is

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significant, because maintenance of the case without prepayment of full filing fees would

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irreparably harm Defendants’ interests (as protected by Congress under the PLRA) against

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having to defend repeated unmeritorious prisoner lawsuits. The public policy favoring the

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disposition of cases on their merits is not implicated where dismissal is without prejudice.

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Finally, a court’s warning to a party that failure to obey the court’s order will result in dismissal

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satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833

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F.2d at 132–33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to pay the

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filing fees within 30 days stated, “Failure to comply may result in dismissal without prejudice

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without further notice.”

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Reconsideration (ECF No. 34) is

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DENIED.

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IT IS FURTHER ORDERED that the case is DISMISSED without prejudice.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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10th day of May, 2018.
Dated this 30th day of April, 2018.

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_____________________________________
ROBERT C. JONES
United States District Judge
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