Nunn v. Ely State Prison

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 TYRONE NOEL NUNN, Case No. 3:23-cv-00579-LRH-CSD 7 Plaintiff, ORDER v. [8] ELY STATE PRISON, et al., [9] Defendants. [10] 11 This action began with a civil-rights complaint under 42 U.S.C. § 1983 filed by state 12 prisoner Tyrone Nunn. (ECF No. 1-1). But Nunn neither paid the $402 filing fee nor 13 applied to proceed in forma pauperis (“IFP”) in this action. (See ECF No. 1.) So on 14 November 28, 2023, this Court ordered Nunn to either pay the filing fee or apply for IFP 15 status by January 29, 2024. (ECF No. 4). The Court warned Nunn this action could be 16 dismissed without prejudice if he failed to timely comply. (Id. at 2). Before the deadline 17 expired, Nunn filed a document titled “Initiation of Actions,” which is a collection of 18 handwritten statutes, a vague “affidavit” about exhaustion of administrative remedies, 19 multiple ex parte requests for the appointment of counsel, prison classification papers, 20 documents from one of Nunn’s state criminal cases, an incomplete IFP application, and 21 a proposed summons. (ECF Nos. 3, 5). Nunn has filed this collection of papers in several 22 of his other actions. (See ECF No. 3 at 2). 23 Despite Nunn’s many papers, he still has not paid the full $402 filing fee or filed a 24 complete IFP application. Moreover, according to the Nevada Department of Corrections 25 inmate database, Nunn has been transferred to High Desert State Prison. But Nunn has 26 not filed his updated address with the Court in compliance with Nevada Local Rule of 27 Practice IA 3-1. For the reasons discussed below, the Court dismisses this action without 28 prejudice. 2 District courts have the inherent power to control their dockets and “[i]n the 3 exercise of that power, they may impose sanctions including, where appropriate . . . 4 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 , 831 5 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 6 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 7 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 8 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 9 Cir. 1987) (dismissal for failure to comply with court order). In determining whether to 10 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 11 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 12 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic alternatives. See In re 14 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 15 Malone, 833 F.2d at 130 ). 16 The first two factors, the public’s interest in expeditiously resolving this litigation 17 and the Court’s interest in managing its docket, weigh in favor of dismissal of Nunn’s 18 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 19 because a presumption of injury arises from the occurrence of unreasonable delay in filing 20 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 21 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 22 cases on their merits—is greatly outweighed by the factors favoring dismissal. 23 The fifth factor requires the Court to consider whether less drastic alternatives can 24 be used to correct the party’s failure that brought about the Court’s need to consider 25 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 992 (9th Cir. 1999) (explaining 26 that considering less drastic alternatives before the party has disobeyed a court order 27 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639 , 643 & n.4 (9th 28 Cir. 2002). Courts “need not exhaust every sanction short of dismissal before finally 2 Duncan, 779 F.2d 1421 , 1424 (9th Cir. 1986). Because this action cannot realistically 3 proceed until Nunn either pays the filing fee or files a complete IFP application, the only 4 alternative is to enter a second order setting another deadline. But the reality of repeating 5 an ignored order is that it often only delays the inevitable and squanders the Court’s finite 6 resources. 7 The circumstances here do not indicate this case will be an exception. There is no 8 indication that Nunn did not receive the Court’s order or could not file a complete IFP 9 application. Rather, the collections of documents that Nunn has filed show he is either 10 unable or unwilling to comply with the Court’s orders. And Nunn has not filed his updated 11 address with the Court despite being transferred to a different prison. Setting another 12 deadline is not a meaningful alternative given these circumstances. So the fifth factor 13 favors dismissal. 14 II. CONCLUSION 15 Having thoroughly considered these dismissal factors, the Court finds that they 16 weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 17 prejudice based on Tyrone Nunn’s failure to either pay the $402 filing fee or file a complete 18 application to proceed in forma pauperis in compliance with this Court’s November 28, 19 2023, order. The Clerk of Court is directed to enter judgment accordingly and close this 20 case. No other documents may be filed in this now-closed case. If Tyrone Nunn wishes 21 to pursue his claims, he must file a complaint in a new case and either pay the filing fee 22 or file a complete application to proceed in forma pauperis. 23 It is further ordered that Nunn’s motions and applications for various relief (ECF 24 Nos. 3, 5) are denied as moot. 25 / / / 26 / / / 27 / / / 28 / / / 1 It is further ordered that the Clerk of the Court will send Nunn a courtesy copy of 2 || this order by electronically sending the same to High Desert State Prison’s law library. 3 IT IS SO ORDERED. 4 DATED THIS 23" day of April, 2024. [5] 5 / - 7 LA R. HICKS UNITED STATES DISTRICT JUDGE