Nunn v. Ely State Prison et al
Filing
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ORDERED that this action is dismissed without prejudice based on Plaintiff's failure to submit a complaint and file a fully complete IFP application or pay the full $402.00 filing fee in compliance with this Court's November 8, 2023 (ECF No. 3 ), and February 20, 2024 (ECF No. 7 ), orders. It is further ordered that the Clerk of Court is directed to enter judgment accordingly and close this case. No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his claims, Plaintiff must file a complaint and satisfy the matter of the filing fee in a new case. Signed by Chief Judge Miranda M. Du on 3/26/2024. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TYRONE NOEL NUNN,
Case No. 3:23-cv-00540-MMD-CSD
Plaintiff,
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ORDER
v.
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ELY STATE PRISON, et al.,
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Defendants.
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On November 8, 2023, this Court ordered pro se Plaintiff Tyrone Noel Nunn to
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submit a complaint and file a fully complete application to proceed in forma pauperis (“IFP
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application”) or pay the full $402.00 filing fee on or before January 5, 2024. (ECF No. 3.)
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Plaintiff was warned the action could be dismissed if he failed to submit a complaint and
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file a fully complete IFP application with all three documents or pay the full $402.00 filing
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fee for a civil action by that deadline. (Id. at 2-3.) When the deadline expired, Plaintiff had
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not submitted a complaint and had not filed a fully complete IFP application or paid the
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full $402.00 filing fee.
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Because Plaintiff submitted a motion for appointment of counsel, an incomplete
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IFP application, and a motion to consolidate (ECF Nos. 4, 5, 6), the Court considered
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meaningful alternatives to dismissal and issued another order on February 20, 2024,
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granting Plaintiff one final opportunity to submit a complaint and file a fully complete IFP
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application by the deadline of March 15, 2024 (ECF No. 7). The deadline has now expired
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and Plaintiff still has not submitted a complaint and has not filed a fully complete IFP
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application or paid the full $402.00 filing fee.
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District courts have the inherent power to control their dockets and “[i]n the
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exercise of that power, they may impose sanctions including, where appropriate . . .
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dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831
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(9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court
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order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
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1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to
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keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th
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Cir. 1987) (affirming dismissal for failure to comply with court order). In determining
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whether to dismiss an action on one of these grounds, the Court must consider: (1) the
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public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition
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of cases on their merits; and (5) the availability of less drastic alternatives. See In re
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Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting
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Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)).
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The first two factors, the public’s interest in expeditiously resolving this litigation
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and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s
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claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal
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because a presumption of injury arises from the occurrence of unreasonable delay in filing
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a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542
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F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of
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cases on their merits—is greatly outweighed by the factors favoring dismissal.
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The fifth factor requires the Court to consider whether less drastic alternatives can
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be used to correct the party’s failure that brought about the Court’s need to consider
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dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining
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that considering less drastic alternatives before the party has disobeyed a court order
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does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th
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Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that
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“implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s
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order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled
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with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish).
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Courts “need not exhaust every sanction short of dismissal before finally dismissing a
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case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779
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F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and
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unless Plaintiff submits a complaint and either files a fully complete IFP application or
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pays the $402.00 filing fee for a civil action, the only alternative is to enter a third order
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setting another deadline. But the reality of repeating two ignored orders is that it often
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only delays the inevitable and squanders the Court’s finite resources. The circumstances
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here do not indicate that this case will be an exception: there is no hint that Plaintiff needs
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additional time or evidence that he did not receive the Court’s order. Setting a third
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deadline is not a meaningful alternative given these circumstances. The fifth factor thus
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favors dismissal. Having thoroughly considered these dismissal factors, the Court finds
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that they weigh in favor of dismissal.
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It is therefore ordered that this action is dismissed without prejudice based on
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Plaintiff’s failure to submit a complaint and file a fully complete IFP application or pay the
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full $402.00 filing fee in compliance with this Court’s November 8, 2023, and February 20,
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2024, orders.
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It is further ordered that the Clerk of Court is directed to enter judgment accordingly
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and close this case. No other documents may be filed in this now-closed case. If Plaintiff
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wishes to pursue his claims, Plaintiff must file a complaint and satisfy the matter of the
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filing fee in a new case.
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DATED THIS 26th Day of March 2024.
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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
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