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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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VICTOR TAGLE,

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Case No. 3:16-cv-00222-RCJ-VPC
Plaintiff,

ORDER

v.
STATE OF NEVADA 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 December 6, 2016, this Court issued an order denying Plaintiff’s

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

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28 U.S.C. § 1915(g). (ECF No. 8 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 $400.00.1

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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, 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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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.

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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

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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.

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Dated: This 16th day of February, 2017.
DATED THIS XXxx day of January, 2017.

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UNITED STATES DISTRICT JUDGE

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