Nunn v. Ely State Prison et al

Filing 9

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 November 17, 2023, and February 20, 2024, orders (ECF Nos. 3 , 8 ). 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 District Judge Anne R. Traum on 5/8/2024. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - DRM)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
TYRONE NOEL NUNN,

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ORDER

DISTRICT OF NEVADA, et al.,
Defendants.

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Plaintiff,

v.

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Case No. 3:23-cv-00576-ART-CSD

Plaintiff Tyrone Noel Nunn brings this civil-rights action under 42 U.S.C.
§ 1983 to redress constitutional violations that he claims he suffered while
incarcerated at Ely State Prison. (ECF No. 1-1). On November 17, 2023, this Court
ordered Nunn to file a fully complete application to proceed in forma pauperis or
pay the full $402 filing fee on or before January 19, 2024. (ECF No. 3). The Court
warned Nunn that the action could be dismissed if he failed to file a fully complete
application to proceed in forma pauperis with all three documents or pay the full
$402 filing fee for a civil action by that deadline. (Id. at 3).
In response to the Court’s order, Nunn filed two incomplete applications to
proceed in forma pauperis (ECF Nos. 5, 7). In light of these incomplete filings, on
February 20, 2024, the Court granted Plaintiff an extension until March 18, 2024,
to submit a complete application to proceed in forma pauperis or pay the $402
filing fee. (ECF No. 8). The March 18, 2024, deadline expired, and Nunn still has
not filed a fully complete application to proceed in forma pauperis, paid the full
$402 filing fee, or otherwise responded.
I.

DISCUSSION
District courts have the inherent power to control their dockets and “[i]n

the exercise of that power, they may impose sanctions including, where
appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los
Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based
on a party’s failure to obey a court order or comply with local rules. See Carey v.

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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to

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comply with local rule requiring pro se plaintiffs to keep court apprised of

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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(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

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

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. See In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217,

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1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th

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Cir. 1987)).

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The first two factors, the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing its docket, weigh in favor of

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dismissal of Nunn’s claims. The third factor, risk of prejudice to defendants, also

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weighs in favor of dismissal because a presumption of injury arises from the

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occurrence of unreasonable delay in filing a pleading ordered by the court or

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prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.

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1976). The fourth factor—the public policy favoring disposition of cases on their

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merits—is greatly outweighed by the factors favoring dismissal.

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The fifth factor requires the Court to consider whether less drastic

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alternatives can be used to correct the party’s failure that brought about the

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Court’s need to consider dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983,

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992 (9th Cir. 1999) (explaining that considering less drastic alternatives before

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the party has disobeyed a court order does not satisfy this factor); accord

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Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that

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“the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted

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pursuit of less drastic alternatives prior to disobedience of the court’s order as

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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

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Yourish). Courts “need not exhaust every sanction short of dismissal before finally

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dismissing a case, but must explore possible and meaningful alternatives.”

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Because this action

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cannot realistically proceed until and unless Nunn either files a fully complete

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application to proceed in forma pauperis or pays the $402 filing fee for a civil

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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

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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

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additional time or evidence that he did not receive the Court’s order. Setting a

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third deadline is not a meaningful alternative given these circumstances. So the

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fifth factor favors dismissal.

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II.

CONCLUSION

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Having thoroughly considered these dismissal factors, the Court finds that

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they weigh in favor of dismissal. It is therefore ordered that this action is

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dismissed without prejudice based on Nunn’s failure to file a fully complete

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

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compliance with this Court’s November 17, 2023, and February 20, 2024, orders.

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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

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pursue his 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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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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