Nunn v. Ely State Prison ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 TYRONE NOEL NUNN, Case No. 3:23-cv-00582-RCJ-CSD 7 Plaintiff, ORDER v. 8 ELY STATE PRISON, et al., 9 Defendants. 10 11 12 Plaintiff Tyrone Noel Nunn brings this civil-rights action under 42 U.S.C. § 1983 to 13 redress constitutional violations that he claims he suffered while incarcerated at Ely State 14 Prison. ECF No. 1-1. On December 7, 2023, this court ordered Nunn to file a fully 15 complete application to proceed in forma pauperis or pay the full $402 filing fee on or 16 before February 9, 2024. ECF No. 5. The court warned Nunn that the action could be 17 dismissed if he failed to file a fully complete application to proceed in forma pauperis with 18 all three documents or pay the full $402 filing fee for a civil action by that deadline. Id. at 19 2. That deadline expired and Nunn did not file a fully complete application to proceed in 20 forma pauperis, pay the full $402 filing fee, or otherwise respond. 21 I. DISCUSSION 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 25 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 26 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 27 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 28 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 2 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 5 cases on their merits; and (5) the availability of less drastic alternatives. See In re 6 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 7 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 8 The first two factors, the public’s interest in expeditiously resolving this litigation 9 and the Court’s interest in managing its docket, weigh in favor of dismissal of Nunn’s 10 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 11 because a presumption of injury arises from the occurrence of unreasonable delay in filing 12 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 13 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 14 cases on their merits—is greatly outweighed by the factors favoring dismissal. 15 The fifth factor requires the Court to consider whether less drastic alternatives can 16 be used to correct the party’s failure that brought about the Court’s need to consider 17 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 18 that considering less drastic alternatives before the party has disobeyed a court order 19 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 20 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 21 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 22 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 23 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 24 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 25 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 26 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 27 unless Nunn either files a fully complete application to proceed in forma pauperis or pays 28 the $402 filing fee for a civil action, the only alternative is to enter a second order setting 1 || another deadline. But the reality of repeating an ignored order is that it often only delays 2 || the inevitable and squanders the Court’s finite resources. The circumstances here do not 3 || indicate that this case will be an exception: there is no hint that Nunn needs additional 4 || time or evidence that he did not receive the Court’s order. Setting another deadline is not 5 || a meaningful alternative given these circumstances. So the fifth factor favors dismissal. 6 || Ul. CONCLUSION 7 Having thoroughly considered these dismissal factors, the Court finds that they 8 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 9 || prejudice based on Nunn’s failure to file a fully complete application to proceed in forma 10 || pauperis or pay the full $402 filing fee in compliance with this Court's December 7, 2023, 11 || order. The Clerk of Court is directed to enter judgment accordingly and close this case. 12 || No other documents may be filed in this now-closed case. If Nunn wishes to pursue his 13 || claims, he must file a complaint in a new case. 14 15 DATED THIS 20" __ day of February 2024. 17 . OBERT C. JG@NES 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28