Nunn v. Dzurenda

• Court: District Court, D. Nevada
• Decided: December 4, 2024
• Docket: 2:24-cv-01788
• Status: Unknown

Opinion

DISTRICT OF NEVADA 2

3 TYRONE NOEL NUNN, Case No. 2:24-cv-01788-GMN-EJY

4 Plaintiff, DISMISSAL ORDER v. 5 JAMES DZURENDA, et al., 6 Defendants. 7

8 9 Plaintiff Tyrone Noel Nunn brings this civil-rights action under 42 U.S.C. § 1983 to 10 redress constitutional violations that he claims he suffered while incarcerated. (ECF No. 11 1-1.) On September 25, 2024, this Court ordered Plaintiff to file a fully complete 12 application to proceed in forma pauperis or pay the full $405 filing fee on or before 13 November 22, 2024. (ECF No. 3.) The Court warned Plaintiff that the action could be 14 dismissed if he failed to file a fully complete application to proceed in forma pauperis with 15 all three documents or pay the full $405 filing fee for a civil action by that deadline. (Id. at 16 2.) That deadline expired and Plaintiff did not file a fully complete application to proceed 17 in forma pauperis or pay the full $405 filing fee. Instead, Plaintiff filed a one-page 18 document listing fourteen different case numbers and labeled the document “in forma 19 pauperis 28 U.S.C. 1915a.” (ECF No. 4.) There is nothing else written on the document. 20 (See id.) 21 I. DISCUSSION 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 25 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to obey a court 26 order or comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 27 1988) (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to 28 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 2 dismiss an action on one of these grounds, the Court must consider: (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 5 cases on their merits; and (5) the availability of less drastic alternatives. See In re 6 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 7 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 8 The first two factors, the public’s interest in expeditiously resolving this litigation 9 and the Court’s interest in managing its docket, weigh in favor of dismissal of Plaintiff’s 10 claims. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal 11 because a presumption of injury arises from the occurrence of unreasonable delay in filing 12 a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 13 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of 14 cases on their merits—is greatly outweighed by the factors favoring dismissal. 15 The fifth factor requires the Court to consider whether less drastic alternatives can 16 be used to correct the party’s failure that brought about the Court’s need to consider 17 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 18 that considering less drastic alternatives before the party has disobeyed a court order 19 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 20 Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that 21 “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the court’s 22 order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled 23 with the warning of dismissal for failure to comply[,]” have been “eroded” by Yourish). 24 Courts “need not exhaust every sanction short of dismissal before finally dismissing a 25 case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 26 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until 27 and unless Plaintiff either files a fully complete application to proceed in forma pauperis 28 or pays the $405 filing fee for a civil action, the only alternative is to enter a second order 1 || setting another deadline. But the reality of repeating an ignored order is that it often only 2 || delays the inevitable and squanders the Court’s finite resources. The circumstances here 3 || do not indicate that this case will be an exception: there is no hint that Plaintiff needs 4 || additional time or evidence that he did not receive the Court's order. 5 Moreover, Plaintiff has filed over 80 pro se lawsuits in this district since July 2023." 6 || Dozens of these lawsuits have been dismissed because Plaintiff failed to correct 7 || fundamental defects with them such as paying the filing fee or filing a complete application 8 || to proceed in forma pauperis. Thus, Plaintiff has been informed numerous times how to 9 || file a complete application to proceed in forma pauperis. Setting another deadline is not 10 || ameaningful alternative given these circumstances. So the fifth factor favors dismissal. 11 || Il. CONCLUSION 12 Having thoroughly considered these dismissal factors, the Court finds that they 13 || weigh in favor of dismissal. It is therefore ordered that this action is dismissed without 14 || prejudice based on Plaintiff's failure to file a fully complete application to proceed in forma 15 || pauperis or pay the full $405 filing fee in compliance with this Court’s September 25, 2024, 16 || order. The Clerk of Court is directed to enter judgment accordingly and close this case. 17 || No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue 18 || his claims, he must file a complaint in a new case and pay the filing fee or file a complete 19 || application to proceed in forma pauperis. 20 21 DATED: December 4, 2024 22 23 h — Gloria Mj Navarro, Judge 24 United Siates District Court 25 26 27 28 1 The Court takes judicial notice of the online docket records of the U.S. Courts, which may be accessed by the public at: https://pacer.uscourts.gov.