United States District Court, D. Hawaii
Derrick K. Watson United States District Judge
John Nigel Brisken, who is incarcerated at the Saguaro
Correctional Center (“SCC”), located in Eloy,
Arizona, filed this action on January 23, 2017, without
submitting the filing fee or an in forma pauperis
(“IFP”) application. See Compl., ECF No.
1. Plaintiff alleges that SCC prison personnel violated his
constitutional rights by denying him adequate medical care
and subjecting him to other deficient conditions of
confinement. Plaintiff names the Hawaii Department of Public
Safety (“DPS”), the Corrections Corporation of
America (“CCA”), DPS Health Care Administrator
Wesley Mun, and SCC Assistant Warden Griego as Defendants in
the Complaint's caption. He identifies several other SCC
medical and prison staff within the Complaint as personally
involved in his claims. This action is DISMISSED without
prejudice for Plaintiff's failure to pay the civil filing
fee or obey a court order.
January 23, 2016, the Court issued a Deficiency Order
directing Plaintiff to submit the civil filing fee or an IFP
application within twenty-eight days, on or before February
20, 2017. Order, ECF No. 3. Plaintiff was warned that failure
to respond to the Deficiency Order would result in dismissal
of this action. Plaintiff has neither filed an IFP
application nor submitted the civil filing fee.
awaiting Plaintiff's response to the Deficiency Order,
the Court discovered that Plaintiff has a pending suit in the
District of Arizona alleging nearly identical claims against
some of the same defendants as in the present
action. See Brisken v. Griego, Civ. No.
16-02434-PHX-JJT (D. Ariz. filed June 20, 2016). The only
discernible difference between these two actions is
Plaintiff's addition of Defendants DPS and Wesley Mun to
this suit, presumably to assert venue in the District of
parties instituting any civil action, suit, or proceeding in
a district court of the United States must pay a filing fee.
See 28 U.S.C. § 1914(a). An action may proceed
without prepayment of the entire fee only if the plaintiff is
granted leave to proceed IFP pursuant to 28 U.S.C. §
1915(a). See Andrews v. Cervantes, 493 F.3d 1047,
1051 (9th Cir. 2007). Further, prisoners granted leave to
proceed IFP are obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, 136 S.Ct. 627, 629 (2016);
Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.
2015), regardless of the outcome of their suit. See
28 U.S.C. § 1915(b)(1) & (2); Taylor v.
Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
courts have inherent power to control their dockets, ”
and in exercising that power, a court may impose sanctions
including dismissal of an action. Thompson v. Hous. Auth.
of L.A., 782 F.2d 829, 831 (9th Cir.1986); Yourish
v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999)
(holding plaintiff's failure to comply with minute order
to file amended complaint gave district court discretion to
dismiss case under Fed.R.Civ.P. 41(b)).
Court considers five factors before dismissing a case:
(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 other party; (4) the public
policy favoring the disposition of cases on their merits; and
(5) the availability of less drastic sanctions.
Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th
Cir. 2011); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
(9th Cir. 1992). Here, Plaintiff's failure to timely pay
the civil filing fee or seek IFP status, the public's
interest in expeditious resolution of this litigation, and
the Court's interest in managing its docket weigh
strongly in favor of dismissing this action.
because Plaintiff is already pursuing relief on these same
claims in the District of Arizona in Civ. No. 16-02434, and
he can add Defendants Department of Public Safety and Wesley
Mun to that suit, the public policy favoring disposition of
cases on their merits is satisfied. Adding DPS and Mun to
Civ. No. 16-02434 will also protect Plaintiff from paying
two civil filing fees to litigate these claims. It
is further clear that venue for Plaintiff's claims lies
in the District of Arizona, where Plaintiff is incarcerated,
the challenged events took place, and the individuals
directly responsible for Plaintiffs claims
reside.Dismissing the action now prevents the
inevitable dismissal for lack of proper venue. There is no
prejudice to DPS and Mun in dismissing this action as they
have not been served (and can be served in Civ. No.
16-02434). In light of these circumstances, dismissal without
prejudice is the least drastic alternative and best option
this action is DISMISSED without prejudice for Plaintiffs
failure to pay the civil filing fee or respond to a court
order. The Clerk is ...