Nunn v. Ely State Prison et al

Filing 9

ORDERED that this action is dismissed without prejudice based on Plaintiff's failure to file a fully complete IFP application or pay the full $402.00 filing fee in compliance with this Court's November 17, 2023 (ECF No. 3 ) and February 20, 2024 (ECF No. 8 ) 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-00572-MMD-CLB
Plaintiff,

v.

ORDER

ELY STATE PRISON, et al.,
Defendants.

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On November 17, 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 16, 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 filed a fully complete IFP application or paid the full $402.00 filing fee.

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Because Plaintiff submitted an amended complaint, two motions for appointment

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of counsel, and an incomplete IFP application (ECF Nos. 4, 5, 6, 7), 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 file a fully complete IFP application by the

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deadline of March 15, 2024. (ECF No. 8.) The deadline has now expired, and Plaintiff still

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has not filed a fully complete IFP application, paid the full $402.00 filing fee, or otherwise

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responded.

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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 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 either files a fully complete IFP application or pays the $402.00 filing fee

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for a civil action, the only alternative is to enter a third order setting another deadline. But

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the reality of repeating two ignored orders is that it often only delays the inevitable and

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squanders the Court’s finite resources. The circumstances here do not indicate that this

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case will be an exception: there is no hint that Plaintiff needs additional time or evidence

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that he did not receive the Court’s order. Setting a third deadline is not a meaningful

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alternative given these circumstances. The fifth factor thus favors dismissal. Having

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thoroughly considered these dismissal factors, the Court finds that they weigh in favor of

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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 file a fully complete IFP application or pay the full $402.00 filing fee in

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compliance with this Court’s November 17, 2023 and February 20, 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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