Nunn v. Ely State Prison ( 2024 )

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 TYRONE NOEL NUNN, Case No. 3:23-cv-00492-LRH-CLB 6 Plaintiff, ORDER v. 7 ELY STATE PRISON, et al., 8 Defendants. 9 10 11 Plaintiff Tyrone Noel Nunn brings this civil-rights action under 42 U.S.C. § 1983 to 12 redress constitutional violations that he claims he suffered while incarcerated at Ely State 13 Prison. (ECF No. 8). On October 12, 2023, this Court ordered Nunn to file a complaint 14 and file a fully complete application to proceed in forma pauperis or pay the full $402 filing 15 fee on or before December 12, 2023. (ECF No. 3). The Court warned Nunn that the action 16 could be dismissed if he failed to file a fully complete application to proceed in forma 17 pauperis with all three documents or pay the full $402 filing fee for a civil action by that 18 deadline. (Id. at 3). 19 Instead of filing a complaint, Nunn filed a motion for appointment of counsel. (ECF 20 No. 4). However, the motion for appointment of counsel appeared to include an 21 application to proceed in forma pauperis, was 42 pages long, and contained documents 22 that did not relate to the motion for counsel. (Id. at 1-42). The Court refiled the application 23 to proceed in forma pauperis separately at (ECF No. 5). 24 The Court denied Nunn’s application to proceed in forma pauperis because it did 25 not include a financial certificate on this Court’s approved form. (ECF No. 6.) The Court 26 gave Nunn one final opportunity to file a complaint and pay the $402 filing fee or file a 27 complete application to proceed in forma pauperis, including a financial certificate on this 28 Court’s approved form, on or before February 9, 2024. (ECF No. 6). On February 13, 2 of eight separate complaints. (ECF No. 7.) However, Nunn still has not filed a fully 3 complete application to proceed in forma pauperis or paid the $402 filing fee. 4 I. DISCUSSION 5 District courts have the inherent power to control their dockets and “[i]n the 6 exercise of that power, they may impose sanctions including, where appropriate . . . 7 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 8 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 9 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 10 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 11 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 12 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 13 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 14 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 15 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 16 cases on their merits; and (5) the availability of less drastic alternatives. See In re 17 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 18 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 19 The first two factors, the public’s interest in expeditiously resolving this litigation 20 and the Court’s interest in managing its docket, weigh in favor of dismissal of Nunn’s 21 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 22 because a presumption of injury arises from the occurrence of unreasonable delay in filing 23 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 24 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 25 cases on their merits—is greatly outweighed by the factors favoring dismissal. 26 The fifth factor requires the Court to consider whether less drastic alternatives can 27 be used to correct the party’s failure that brought about the Court’s need to consider 28 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 1 || that considering less drastic alternatives before the party has disobeyed a court order 2 || does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 3 || Cir. 2002) (explaining that “the persuasive force of’ earlier Ninth Circuit cases that 4 || “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 5 || order as satisfying this element[,]” /e., like the “initial granting of leave to amend coupled 6 || with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 7 || Courts “need not exhaust every sanction short of dismissal before finally dismissing a 8 || case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 9 || F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 10 || unless Nunn either files a fully complete application to proceed in forma pauperis or pays 11 || the $402 filing fee for a civil action, the only alternative is to enter a third order setting 12 || another deadline. But the reality of repeating two ignored orders is that it often only delays 13 || the inevitable and squanders the Court’s finite resources. The circumstances here do not 14 || indicate that this case will be an exception: there is no hint that Nunn needs additional 15 || time or evidence that he did not receive the Court’s order. Setting a third deadline is not 16 || a meaningful alternative given these circumstances. So the fifth factor favors dismissal. 17 || Il. CONCLUSION 18 Having thoroughly considered these dismissal factors, the Court finds that they 19 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 20 || prejudice based on Nunn’s failure to file a fully complete application to proceed in forma 21 || pauperis or pay the full $402 filing fee in compliance with this October 12, 2023, and 22 || January 9, 2024, orders. The Clerk of Court is directed to enter judgment accordingly and 23 || close this case. No other documents may be filed in this now-closed case. If Nunn wishes 24 || to pursue his claims, he must file a complaint in a new case. 25 IT IS SO ORDERED. 26 DATED THIS 20" day of February 2024. 27 A / - ; 28 LA R. HICKS UNITED STATES DISTRICT JUDGE