Nunn v. Ely State Prison et al

Filing 7

ORDERED that this action is dismissed without prejudice based on Tyrone Nunn's failure to either pay the $402 filing fee or file a complete application to proceed in forma pauperis in compliance with this Court's February 20, 2024 , Order (ECF No. 6 ). 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 Nunn wishes to pursue his claims, he must file a complaint in a new case. Signed by Chief Judge Miranda M. Du on 5/8/2024. (For Distribution by law library.)(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,

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Plaintiff,

v.

ORDER

ELY STATE PRISON, et al.,
Defendants.

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Case No. 3:23-cv-00542-MMD-CSD

I.

SUMMARY

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Plaintiff Tyrone Noel Nunn brings this civil-rights action under 42 U.S.C. § 1983 to

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redress constitutional violations that he claims he suffered while incarcerated at Ely State

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Prison. (ECF No. 1-1.) On February 20, 2024, this Court ordered Nunn to file a fully

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complete application to proceed in forma pauperis or pay the full $402 filing fee on or

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before April 15, 2024. (ECF No. 6.) The Court warned Nunn that the action could be

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dismissed if he failed to file a fully complete application to proceed in forma pauperis with

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all three documents or pay the full $402 filing fee for a civil action by that deadline. (Id. at

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5.) That deadline expired and Nunn did not file a fully complete application to proceed in

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forma pauperis, pay the full $402 filing fee, or otherwise respond.

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II.

DISCUSSION

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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) (dismissal for failure to comply with court order). In determining whether to

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dismiss an action on one of these grounds, the Court must consider: (1) the public’s

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interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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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, 833 F.2d at 130).

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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 Nunn’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 Nunn either files a fully complete application to proceed in forma pauperis or pays

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the $402 filing fee for a civil action, the only alternative is to enter a second order setting
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another deadline. But the reality of repeating an ignored order is that it often only delays

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the inevitable and squanders the Court’s finite resources. The circumstances here do not

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indicate that this case will be an exception: there is no hint that Nunn needs additional

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time or evidence that he did not receive the Court’s order. Setting another deadline is not

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a meaningful alternative given these circumstances. So the fifth factor favors dismissal.
Having thoroughly considered these dismissal factors, the Court finds that they

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weigh in favor of dismissal.

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III.

CONCLUSION

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It is therefore ordered that this action is dismissed without prejudice based on

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Nunn’s failure to file a fully complete application to proceed in forma pauperis or pay the

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full $402 filing fee in compliance with this Court’s February 20, 2024 order.

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The Clerk of Court is directed to enter judgment accordingly and close this case.

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No other documents may be filed in this now-closed case. If Nunn wishes to pursue his

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claims, he must file a complaint in a new case.

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DATED THIS 8th Day of May 2024.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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