Nunn v. Ely State Prison State of Nevada ( 2023 )

1 DISTRICT OF NEVADA 2 TYRONE NOEL NUNN, Case No. 3:23-cv-00464-ART-CLB 3 Plaintiff, ORDER 4 v. 5 ELY STATE PRISON STATE OF NEVADA, 6 Defendant. 7 8 Plaintiff Tyrone Noel Nunn attempted to initiate a civil action but did not 9 file an application to proceed in forma pauperis or pay the full filing fee for a civil 10 action and did not submit a complaint. (ECF Nos. 1, 1-1). On September 25, 11 2023, this Court ordered Plaintiff to file a fully complete application to proceed in 12 forma pauperis or pay the full $402 filing fee and submit a complaint on or before 13 November 21, 2023. (ECF No. 3). The Court warned Plaintiff that the action could 14 be dismissed if he failed to comply with that deadline. (Id. at 3). That deadline 15 expired and Plaintiff did not file a fully complete application to proceed in forma 16 pauperis, pay the full $402 filing fee, submit a complaint, or otherwise respond. 17 I. DISCUSSION 18 District courts have the inherent power to control their dockets and “[i]n 19 the exercise of that power, they may impose sanctions including, where 20 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 21 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 22 on a party’s failure to obey a court order or comply with local rules. See Carey v. 23 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 24 comply with local rule requiring pro se plaintiffs to keep court apprised of 25 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 26 (dismissal for failure to comply with court order). In determining whether to 27 dismiss an action on one of these grounds, the Court must consider: (1) the 28 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 1 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 2 favoring disposition of cases on their merits; and (5) the availability of less drastic 3 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 4 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th 5 Cir. 1987)). 6 The first two factors, the public’s interest in expeditiously resolving this 7 litigation and the Court’s interest in managing its docket, weigh in favor of 8 dismissal of Plaintiff’s claims. The third factor, risk of prejudice to defendants, 9 also weighs in favor of dismissal because a presumption of injury arises from the 10 occurrence of unreasonable delay in filing a pleading ordered by the court or 11 prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 12 1976). The fourth factor—the public policy favoring disposition of cases on their 13 merits—is greatly outweighed by the factors favoring dismissal. 14 The fifth factor requires the Court to consider whether less drastic 15 alternatives can be used to correct the party’s failure that brought about the 16 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 17 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 18 the party has disobeyed a court order does not satisfy this factor); accord 19 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that 20 “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted 21 pursuit of less drastic alternatives prior to disobedience of the court’s order as 22 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 24 Yourish). Courts “need not exhaust every sanction short of dismissal before finally 25 dismissing a case, but must explore possible and meaningful alternatives.” 26 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this action 27 cannot realistically proceed until and unless Plaintiff either files a fully complete 28 application to proceed in forma pauperis or pays the $402 filing fee for a civil 1 || action and submits a complaint, the only alternative is to enter a second order 2 || setting another deadline. But the reality of repeating an ignored order is that it 3 || often only delays the inevitable and squanders the Court’s finite resources. The 4 || circumstances here do not indicate that this case will be an exception: there is 5 |} no hint that Plaintiff needs additional time or evidence that he did not receive the 6 || Court’s order. Setting a second deadline is not a meaningful alternative given 7 || these circumstances. So the fifth factor favors dismissal. 8 || II. CONCLUSION 9 Having thoroughly considered these dismissal factors, the Court finds that 10 || they weigh in favor of dismissal. It is therefore ordered that this action is 11 || dismissed without prejudice based on Plaintiffs failure to file a fully complete 12 || application to proceed in forma pauperis or pay the full $402 filing fee and submit 13 || acomplaint in compliance with this Court’s September 25, 2023, order. The Clerk 14 || of Court is directed to enter judgment accordingly and close this case. No other 15 || documents may be filed in this now-closed case. If Plaintiff wishes to pursue his 16 || claims, he must file a complaint in a new case. 17 18 DATED THIS 4t# day of December 2023. 19 An. ‘ plod de 20 ANNE R. TRAUM 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28