United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the Local Rules of Practice IB 1-4.
For the reason set forth below, it is recommended that
plaintiff's complaint be dismissed.
is an inmate in the custody of the Nevada Department of
Corrections (ECF No. 1). On October 24, 2018, the undersigned
Magistrate Judge issued an order denying plaintiff's
application to proceed in forma pauperis because the
court has on at least three occasions dismissed civil actions
commenced by plaintiff for failure to state a claim upon
which relief could be granted (ECF No. 8). The court ordered
plaintiff to pay the full filing fee within thirty days and
cautioned plaintiff that failure to do so would result in a
report and recommendation that this case be dismissed.
(Id.) To date, plaintiff has failed to pay the
filing fee as ordered.
the Prison Litigation Reform Act, if a prisoner has “on
3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or an appeal in a court of
the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which
relief may be granted, ” that person shall be precluded
from commencing any new cases in forma pauperis
except upon a showing of imminent danger of serious physical
injury. 28 U.S.C. § 1915(g).
least three occasions this court dismissed civil actions
commenced by plaintiff for failure to state a claim on which
relief could be granted. See Navas v. State of
Nevada, Case No. 3:06-CV-0262-RCJ-VPC (dismissed case
for failure to state a claim and expressly held that the
dismissal would count as plaintiff's “third
strike” pursuant to 28 U.S.C. § 1915(g)).
Julio Cesar Navas v. Anna Marie Navas, et
al., CV-N-04-0101-HDM-VPC (dismissal for failure to
state a claim); Julio Navas v. Second Judicial District
Court, CV-N-04-0653-HDM-VPC (dismissal for failure to
state a claim). In addition, there were no allegations in the
complaint or any other filing in the record that plaintiff
was in imminent danger or any serious physical injury.
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. Thompson v. Hous. Auth. Of City of Los
Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 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. 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).
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 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.
the court finds 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
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 1424. The court's order
requiring plaintiff to pay the full filing fee within thirty
days expressly stated: “If plaintiff fails to do so,
this court will issue a report and recommendation that this
case be dismissed due to failure to pay the filing
fee.” (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 filing fee within
upon the foregoing, the undersigned magistrate judge
recommends that this action be dismissed without prejudice
for failure to pay the full filing fee in compliance with the
court's October 24, 2019 order (ECF No. 8).
parties are advised:
Pursuant to 28 U.S.C § 636(b)(1)(C) and Rule IB 3-2 of
the Local Rules of Practice, the parties may file specific
written objections to this report and recommendation within
fourteen days of receipt. These objections should be entitled
“Objections to Magistrate Judge's Report and
Recommendation” and should be accompanied by points and
authorities for consideration by the District Court.
report and recommendation is not an appealable order and any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court's
reasons stated above, the undersigned Magistrate Judge
recommends that the District Court enter an order