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Bacon v. Dzurenda

United States District Court, D. Nevada

April 13, 2018

Percy Lavae Bacon, Plaintiff
v.
James Dzurenda, et al., Defendants

          ORDER DISMISSING CASE

          Jennifer A. Dorsey, U.S. District Judge

         Pro se plaintiff Percy Lavae Bacon has three strikes and must pay the full $400 filing fee in advance for his § 1983 claims unless he is in imminent danger of serious physical injury.[1] So, he moved to proceed in forma pauperis under the imminent-danger exception, alleging that he is in imminent danger of losing sight in his right eye.[2] Magistrate Judge Nancy Koppe denied the motion without prejudice, explaining that Bacon “must first submit a complaint and an application to proceed in forma pauperis . . . before the Court can evaluate whether [his] complaint makes a plausible allegation that [he] faced imminent danger of serious physical injury at the time of filing.”[3] Judge Koppe then gave Bacon 30 days to file a complaint and a fully complete pauper application. She also warned him that his case may be dismissed if he did not comply with her order.[4] That 30-day deadline has come and gone, and Bacon has filed nothing.

         District courts have the inherent power to control their dockets and “[i]n the exercise of that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.[5]A court may dismiss an action with prejudice based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules.[6] 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.[7]

         I find that the first two factors-the public's interest in expeditiously resolving the litigation and the court's interest in managing the docket-weigh in favor of dismissing this case. The risk-of-prejudice factor also weighs in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or prosecuting an action.[8] The fourth factor is greatly outweighed by the factors favoring dismissal, and 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.[9] Bacon was warned that his case would be dismissed without prejudice if he failed to submit a complaint and file a completed application or pay the filing fee within 30 days.[10] So, Bacon had adequate warning that his failure to submit a complaint and file a completed application or pay the filing fee would result in this case's dismissal.

         Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED without prejudice based on Bacon's failure to submit a complaint and file a completed application to proceed in forma pauperis or pay the filing fee in compliance with this Court's February 23, 2018, order. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE.

---------

Notes:

[1] 28 U.S.C. § 1915(g).

[2] ECF No. 1.

[3] ECF No. 3 at 1.

[4] Id. at 2.

[5] Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

[6] 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).

[7] 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; Gha ...


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