Reberger v. Koehn et al

Filing 5

ORDER DISMISSING CASE without prejudice based on failure to pay filing fee. Motion to amend complaint 4 is denied as moot. Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 12/2/15. (Copies have been distributed pursuant to the NEF - JC)

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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-00468-MMD-VPC
Plaintiff,

ORDER

v.
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MICHAEL KOEHN 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 October 20, 2015, this Court issued an order denying Plaintiff’s

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

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to 28 U.S.C. § 1915(g). (Dkt. no. 3 at 1-2.) The Court informed Plaintiff that if he did not

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pay the $400.00 filing fee in full within thirty (30) days of the date of that order, the Court

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would dismiss the action without prejudice. (Id. at 2.) The thirty-day period has now

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expired and Plaintiff has not paid the full filing fee of $400.00.

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Plaintiff has filed a motion to amend his complaint and has attached a proposed

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amended complaint. (Dkt. no. 4, 4-1.) In his amended complaint, Plaintiff attempts to

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establish “imminent danger of serious physical injury” by changing the dates of his

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amended complaint to allege that the injuries started in 2014 “through to this day.” (Dkt.

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no. 4-1 at 1.) In reviewing the amended complaint as a whole, the Court does not find

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that the allegations establish imminent danger of serious physical injury because the

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substance of the amended complaint is challenging actions that took place in 2014.

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(See dkt. no. 4-1.)

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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,

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831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

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failure to prosecute an action, failure to obey a court order, or failure to comply with

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local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply

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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.

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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

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for lack 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

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obey a court order, or failure to comply with local rules, the 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,

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833 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.

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor ― public

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policy favoring disposition of cases on their merits ― is greatly outweighed by the

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factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that
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his failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;

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Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to pay the full filing

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fee within thirty (30) days expressly stated: “It is further ordered that this action will be

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dismissed without prejudice unless Plaintiff pays the $400.00 filing fee (which includes

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the $350 filing fee and the $50 administrative fee) in full within thirty (30) days of entry of

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this order.” (Dkt. 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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(30) 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 October 20,

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2015, order.
It is further ordered that the motion to amend complaint (dkt. no. 4) is denied as

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moot.
It is further ordered that the Clerk of Court shall enter judgment accordingly.

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DATED THIS 2nd day of December 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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