Tagle v. State of Nevada et al

Filing 10

ORDER - This action is dismissed without prejudice based on Plaintiff's failure to pay the $400.00 filing fee in compliance with this Court's order (ECF No. 8 ). Clerk shall enter judgment accordingly. Signed by Judge Robert C. Jones on 2/16/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 VICTOR TAGLE, 10 11 12 Case No. 3:16-cv-00222-RCJ-VPC Plaintiff, ORDER v. STATE OF NEVADA et al., 13 Defendants. 14 15 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by 16 a state prisoner. On December 6, 2016, this Court issued an order denying Plaintiff’s 17 application to proceed in forma pauperis because Plaintiff had “three strikes” pursuant to 18 28 U.S.C. § 1915(g). (ECF No. 8 at 1-2). The Court informed Plaintiff that if he did not 19 pay the $400.00 filing fee in full within thirty (30) days of the date of that order, the Court 20 would dismiss the action without prejudice. (Id. at 2). The thirty-day period has now 21 expired and Plaintiff has not paid the full filing fee of $400.00.1 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 25 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 26 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 27 1 28 Plaintiff has filed an objection to the Court’s order. (ECF No. 8). To the extent that this is a motion for reconsideration to Plaintiff’s three strikes status, the Court denies the motion because Plaintiff has three strikes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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, 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). In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 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. In the instant case, the Court finds that the first two factors, the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket, weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to pay the full filing fee within thirty (30) days expressly stated: “It is further ordered that this action will be dismissed without 28 -2- 1 2 3 4 5 6 7 8 prejudice unless Plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry of this order.” (ECF No. 8 at 2). Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance with the Court’s order to pay the full filing fee within thirty (30) days. It is therefore ordered 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 December 6, 2016, order. It is further ordered that the Clerk of Court shall enter judgment accordingly. 9 10 Dated: This 16th day of February, 2017. DATED THIS XXxx day of January, 2017. 11 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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