Nunn v. Dzurenda

Opinion

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

7 TYRONE NOEL NUNN, Case No. 2:24-cv-01795-RFB-MDC

8 Plaintiff, ORDER v. 9 JAMES DZURENDA, et al., 10 Defendants. 11

12 13 Plaintiff Tyrone Noel Nunn brings this civil-rights action under 42 U.S.C. § 1983 to redress 14 constitutional violations that he claims he suffered while incarcerated at Ely State Prison and High 15 Desert State Prison. ECF No. 1-1. On October 21, 2024, this Court ordered Nunn to file a fully 16 complete application to proceed in forma pauperis or pay the full $405 filing fee on or before 17 December 16, 2024. ECF No. 3. The Court warned Nunn that the action could be dismissed if he 18 failed to file a fully complete application to proceed in forma pauperis with all three documents 19 or pay the full $405 filing fee for a civil action by that deadline. Id. at 2. That deadline expired and 20 Nunn did not file a fully complete application to proceed in forma pauperis, pay the full $405 21 filing fee, or otherwise respond. 22 I. DISCUSSION 23 District courts have the inherent power to control their dockets and “[i]n the exercise of 24 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 25 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 26 dismiss an action based on a party’s failure to obey a court order or comply with local rules. See 27 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal for failure to comply 1 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal 2 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order). In 3 determining whether to dismiss an action on one of these grounds, the Court must consider: (1) 4 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 5 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 6 cases on their merits; and (5) the availability of less drastic alternatives. See In re 7 Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 8 U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). 9 The first two factors, the public’s interest in expeditiously resolving this litigation and the 10 Court’s interest in managing its docket, weigh in favor of dismissal of Nunn’s claims. The third 11 factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of 12 injury arises from the occurrence of unreasonable delay in filing a pleading ordered by the court 13 or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 14 factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by 15 the factors favoring dismissal. 16 The fifth factor requires the Court to consider whether less drastic alternatives can be used 17 to correct the party’s failure that brought about the Court’s need to consider dismissal. See Yourish 18 v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic 19 alternatives before the party has disobeyed a court order does not satisfy this factor); accord 20 Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive 21 force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic alternatives 22 prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting 23 of leave to amend coupled with the warning of dismissal for failure to comply[,]” have been 24 “eroded” by Yourish). Courts “need not exhaust every sanction short of dismissal before finally 25 dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. Duncan, 26 779 F.2d 1421, 1424 (9th Cir. 1986). Because this action cannot realistically proceed until and 27 unless Nunn either files a fully complete application to proceed in forma pauperis or pays the $402 1 || filing fee for a civil action, the only alternative is to enter a second order setting another deadline. 2 || But the reality of repeating an ignored order is that it often only delays the inevitable and squanders 3 || the Court’s finite resources. The circumstances here do not indicate that this case will be an 4 || exception: there is no hint that Nunn needs additional time or evidence that he did not receive the 5 || Court’s order. Setting another deadline is not a meaningful alternative given these circumstances. 6 || So, the fifth factor favors dismissal. 7 || OL. CONCLUSION 8 Having thoroughly considered these dismissal factors, the Court finds that they weigh in 9 || favor of dismissal. 10 IT IS THEREFORE ORDERED that this action is dismissed without prejudice based on 11 |} Nunn’s failure to file a fully complete application to proceed in forma pauperis or pay the full 12 || $405 filing fee in compliance with this Court’s October 21, 2024, order. The Clerk of Court is 13 || directed to enter judgment accordingly and close this case. No other documents may be filed in 14 || this now-closed case. If Nunn wishes to pursue his claims, he must file a complaint in a new case. 15 IT IS FURTHER ORDERED that Plaintiff may move to reopen this case and vacate the 16 || judgment by filing a motion for reconsideration within 28 days of this Order. In this motion, Nunn 17 || would be required to explain what circumstances delayed him from paying the filing fee or filing 18 || the application to proceed in forma pauperis and a complaint in compliance with LSR 2-1. Ifthe 19 || Court finds there to be good cause or a reasonable explanation for Nunn’s failure, the Court will 20 || reopen the case and vacate the judgment. 21 22 DATED: April 24, 2025. 23 24 | S RICHARD F. BOULWARE, II 25 UNITED STATES DISTRICT JUDGE 26 27 28