Reberger v. Byrne et al

Filing 10

ORDER dismissing without prejudice this action based on Plaintiff's failure to pay the $400 filing fee; denying Plaintiff's ECF Nos. 5 , 6 , 7 , and 8 motions; directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 1/31/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LANCE REBERGER,

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Case No. 3:16-cv-00269-MMD-VPC
Plaintiff,

ORDER

v.
HAROLD M. BYRNE, et al.,
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 23, 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. 4 at 1-2.) The Court informed Plaintiff that if he did not pay

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

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

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Plaintiff has not paid the full filing fee of $400.00. Instead, Plaintiff has filed a motion for

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court screening or realignment of civil case (ECF No. 5), a motion for relief from order

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and to rescreen complaint (ECF No. 6), a motion for extension of time (ECF No. 7), and

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a motion for leave of court for extra pages in first amended complaint (ECF No. 8).

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The Court denies Plaintiff’s motion to screen his case (ECF No. 5) because Plaintiff

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has not paid the $400 filing fee in this case. The Court interprets Plaintiff’s motion for relief

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from order (ECF No. 6) as a motion for reconsideration and denies the motion. The Court

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has reviewed Plaintiff’s complaint again and finds that these allegations again fail to

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plausibly allege that Plaintiff is in imminent danger of serious physical injury. The Court

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also denies Plaintiff’s motion to file extra pages in his first amended complaint (ECF No.

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8) because Plaintiff has not paid the full filing fee for this case.

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The Court denies Plaintiff’s motion for an extension of time (ECF No. 7). In the

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motion, Plaintiff seeks an extension of sixty (60) days to give him time to find an attorney

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who will pay the filing fee. Since at least 2013, if not earlier, Plaintiff knew that he had

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three strikes pursuant to § 1915(g). See Reberger v. Cox, 3:13-cv-00522-MMD-WGC at

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ECF No. 4 (order informing Plaintiff of his three strikes status). The Court will not stay the

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case in order for Plaintiff to find an attorney who will pay his filing fee. Plaintiff can re-file

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his case when he secures the funds to pay the filing fee.

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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 pay the full filing fee within thirty (30) days

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expressly stated: “It is further ordered that this action will be dismissed without prejudice

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unless Plaintiff pays the $400.00 filing fee (which includes the $350 filing fee and the $50

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administrative fee) in full within thirty (30) days of entry of this order.” (ECF No. 4 at 2.)

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Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance

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with the Court’s order to pay the full filing fee within thirty (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 December

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23, 2016, order.

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It is further ordered that the motion for court screening (ECF No. 5) is denied.

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It is further ordered that the motion for relief from order (ECF No. 6) is denied.

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It is further ordered that the motion for extension of time (ECF No. 7) is denied.

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It is further ordered that the motion for leave of court for extra pages (ECF No. 8)

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is denied.

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

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DATED THIS 31st day of January 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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