Nunn v. Department of Corrections ( 2024 )

2 DISTRICT OF NEVADA 3 TYRONE NOEL NUNN, Case No. 3:24-cv-00050-ART-CLB 4 Plaintiff, v. ORDER DISMISSING AND CLOSING 5 CASE DEPARTMENT OF CORRECTIONS, et 6 al., 7 Defendants. 8 9 Pro se plaintiff Tyrone Noel Nunn, who is incarcerated in the custody of the 10 Nevada Department of Corrections (“NDOC”) and assigned NDOC #1252474, has 11 filed over 70 pro se lawsuits in this district since July 2023.1 Dozens of these 12 lawsuits have been dismissed because Nunn failed to correct fundamental defects 13 with them like filing a single, signed complaint and either paying the filing fee or 14 filing a complete application to proceed in forma pauperis (“IFP”). Like many of 15 his other lawsuits, Nunn initiated this action by filing a collection of documents 16 that does not constitute a complaint, and he neither paid the $405 filing fee nor 17 applied for IFP status. (ECF Nos. 1-1, 1). For the reasons discussed below, this 18 action is dismissed without prejudice, and Nunn is cautioned that future 19 similarly defective actions might be dismissed as frivolous. 20 DISCUSSION 21 District courts have the inherent power to control their dockets and “[i]n 22 the exercise of that power, they may impose sanctions including, where 23 appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 24 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 25 on a party’s failure to obey a court order or comply with local rules. See Carey v. 26 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to 27 28 1 The Court takes judicial notice of the online docket records of the U.S. Courts, which may be accessed by the public at: https://pacer.uscourts.gov. 2 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 3 (dismissal for failure to comply with court order). In determining whether to 4 dismiss an action on one of these grounds, the Court must consider: (1) the 5 public’s interest in expeditious resolution of litigation; (2) the Court’s need to 6 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 7 favoring disposition of cases on their merits; and (5) the availability of less drastic 8 alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 9 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 10 The first two factors, the public’s interest in expeditiously resolving this 11 litigation and the Court’s interest in managing its docket, weigh in favor of 12 dismissal. The third factor, risk of prejudice to defendants, also weighs in favor 13 of dismissal because a presumption of injury arises from the occurrence of 14 unreasonable delay in filing a pleading ordered by the court or prosecuting an 15 action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 16 factor—the public policy favoring disposition of cases on their merits—is greatly 17 outweighed by the factors favoring dismissal. 18 The fifth factor requires the Court to consider whether less drastic 19 alternatives can be used to correct the party’s failure that brought about the 20 Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 21 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 22 the party has disobeyed a court order does not satisfy this factor); accord 23 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002). Courts “need not 24 exhaust every sanction short of dismissal before finally dismissing a case, but 25 must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 26 F.2d 1421, 1424 (9th Cir. 1986). Nunn commenced this action with two 27 documents titled “Kitchen Counter,” which appear to be a “business proposal” 28 and list of items that he wants the NDOC to provide in the commissary, and a 2 request for the appointment of counsel. (ECF No. 1-1). None of these documents 3 constitutes a complaint. And Nunn has neither paid the full $405 filing fee nor 4 applied for IFP status in this action. 5 Because this action cannot realistically proceed until Nunn files a 6 complaint and either pays the filing fee or applies for IFP status, the only 7 alternative is to enter an order setting a deadline for Nunn to correct these 8 fundamental defects. But courts in this district have entered numerous orders 9 advising Nunn that he must file a single, signed complaint on the Court’s 10 approved form or with substantially all the information called for by that form 11 and either payment of the filing fee or a complete IFP application if he wants to 12 proceed with a lawsuit, and they dismissed his actions without prejudice when 13 he failed to correct those defects. See, e.g., Nunn v. Ely State Prison State of 14 Nevada, Case No. 3:23-cv-00464-ART-CLB, at ECF Nos. 3, 4 (D. Nev.) (dismissed 15 without prejudice for want of a complaint and addressing the matter of the filing 16 fee); Nunn v. District of Nevada, Case No. 3:23-cv-00465-MMD-CLB, at ECF 17 Nos. 3, 6, 7 (D. Nev.) (same); Nunn v. Ely State Prison, Case No. 3:23-cv-00492- 18 LRH-CLB, at ECF Nos. 3, 6, 9 (D. Nev.) (same); Nunn v. University Medical Center, 19 Case No. 3:23-cv-00496-LRH-CLB, at ECF Nos. 3, 6, 8 (D. Nev.) (same); Nunn v. 20 Ely State Prison, Case No. 3:23-cv-00538-ART-CLB, at ECF Nos. 3, 7 (D. Nev.) 21 (same); Nunn v. Ely State Prison, Case No. 3:23-cv-00540-MMD-CSD, at ECF 22 Nos. 3, 7, 8 (D. Nev.) (same); Nunn v. CERT Office, Case No. 3:23-cv-00647-MMD- 23 CLB, at ECF Nos. 3, 5, 8 (D. Nev.) (same); Nunn v. District of Nevada, 3:23-cv- 24 00578-ART-CLB, at ECF Nos. 3, 7, 8 (D. Nev.) (same); Nunn v. Carson City, 25 Nevada, Case No. 3:23-cv-00573-ART-CSD, at ECF Nos. 3, 7 (D. Nev.) (dismissed 26 without prejudice for want of addressing the matter of the filing fee); Nunn v. Clark 27 County Detention, Case No. 3:23-cv-00575-LRH-CLB, at ECF Nos. 4, 16 (D. Nev.) 28 (same); Nunn v. McDonald’s, Case No. 3:23-cv-00602-MMD-CLB, at ECF Nos. 3, 1 || 4, 5 (D. Nev.) (same); Nunn v. Ely State Prison, Case No. 3:23-cv-00582-RCJ-CSD, 2 || at ECF Nos. 5, 6 (D. Nev.) (same); Nunn v. CERT Officers of Ely State Prison, Case 3 || No. 3:23-cv-00571-ART-CLB, at ECF Nos. 5, 7, 9 (D. Nev.) (same). Many of the 4 || orders were entered in these cases before Nunn commenced this lawsuit. 5 || Considering Nunn’s litigation history and the fact that he omitted both a 6 || complaint and either payment of the filing fee or an IFP application when he 7 || commenced this lawsuit, the Court finds that setting a deadline for Nunn to 8 || address those foundational matters is not a meaningful alternative. So the fifth 9 || factor favors dismissal. 10 || 1. CONCLUSION 11 Having thoroughly considered these dismissal factors, the Court finds that 12 || they weigh in favor of dismissal. It is therefore ordered that this action is 13 || dismissed without prejudice based on Nunn’s failure to file a complaint and 14 || address the matter of the filing fee. The Clerk of Court is directed to enter 15 || judgment accordingly and close this case. No other documents may be filed in 16 || this now-closed case. 17 Nunn is cautioned that his future lawsuits might be dismissed with 18 || prejudice as frivolous if he continues omitting foundational documents like a 19 || proper complaint and a complete application to proceed in forma pauperis. 20 |} Dismissal for frivolousness constitutes a strike under the Prison Litigation 21 || Reform Act (“PLRA”). 28 U.S.C. § 1915(g). Prisoners who amass three or more 22 || strikes under the PLRA may not bring a civil action or appeal under in forma 23 || pauperis status “unless the prisoner is under imminent danger of serious 24 || physical injury.” Id. 25 DATED THIS 20th day of November 2024. 26 an 27 2 foe / ANNE R. TRAUM 28 UNITED STATES DISTRICT JUDGE