Reberger v. Byrne et al

Filing 12

ORDER that this action is dismissed without prejudice based on Plaintiff's failure to file a complaint and pay the $400.00 filing fee in compliance with this Court's 03/06/2017, Order ECF No. 11 . It is further ordered that the Clerk is directed to enter judgment accordingly. Signed by Judge Miranda M. Du on 04/05/2017. (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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***

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LANCE REBERGER,

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Case No. 3:15-cv-00143-MMD-VPC
Plaintiff,

ORDER

v.
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MICHAEL BYRNE et al.,
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Defendants.
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This action is a pro se motion for temporary restraining order/preliminary injunction

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filed by a state prisoner. (ECF No. 1-1.) On March 16, 2015, this Court issued an order

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denying Plaintiff’s application to proceed in forma pauperis because Plaintiff had “three

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strikes” pursuant to 28 U.S.C. § 1915(g) and had not established imminent danger. (ECF

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No. 3 at 1-2.) The Court informed Plaintiff that if he did not pay the full filing fee within

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thirty (30) days from the date of that order, the Court would dismiss the action without

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prejudice. (Id. at 3.) Plaintiff appealed. (ECF No. 5.) On February 27, 2017, the Ninth

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Circuit Court of Appeals dismissed the appeal. (ECF No. 9.) On March 6, 2017, this Court

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issued an order directing Plaintiff to submit a complaint and pay the full filing fee of $400

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on or before March 24, 2017. (ECF No. 11.) The deadline has now expired and Plaintiff

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has not filed a complaint, paid the full filing fee, or otherwise responded to the Court’s

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order.

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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, 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

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favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure to

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obey 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 file a complaint and pay the full filing fee
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on or before March 24, 2017, expressly stated: “It is further ordered that, if Plaintiff does

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not file a complaint and pay the full $400.00 filing fee on or before Friday, March 24, 2017,

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this action will be dismissed without prejudice.” (ECF No. 11 at 2.) Thus, Plaintiff had

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adequate warning that dismissal would result from his noncompliance with the Court’s

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order to file a complaint and pay the full filing fee on or before March 24, 2017.

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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 file a complaint and pay the $400.00 filing fee in compliance with this

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Court’s March 6, 2017, order.

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It is further ordered that the Clerk of Court shall enter judgment accordingly.
DATED THIS 5th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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