Nunn v. High Desert State Prison

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Tyrone Noel Nunn, Case No. 2:24-cv-01391-JAD-NJK

5 Plaintiff v. 6 Order Dismissing High Desert State Prison, et. al., and Closing Case 7 Defendants 8 9 Plaintiff Tyrone Nunn brings this civil-rights lawsuit to redress constitutional violations 10 that he claims he suffered while incarcerated at High Desert State Prison. On August 7, 2024, 11 this court ordered the plaintiff to either pay the $405 filing fee or file a complete application to 12 proceed in forma pauperis by October 7, 2024.1 That deadline expired without payment of the 13 filing fee or an application to proceed in forma pauperis by the plaintiff. He instead filed a 14 document titled “in forma pauperis” that simply states “28 U.S.C. § 1915a.”2 15 District courts have the inherent power to control their dockets and “[i]n the exercise of 16 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.3 A 17 court may dismiss an action based on a party’s failure to obey a court order or comply with local 18 rules.4 In determining whether to dismiss an action on this ground, the court must consider: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 20 1 ECF No. 3. 21 2 ECF No. 4. 22 3 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 4 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 23 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 1 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 2 cases on their merits; and (5) the availability of less drastic alternatives.5 3 The first two factors, the public’s interest in expeditiously resolving this litigation and the 4 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The

5 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 6 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 7 action.6 The fourth factor—the public policy favoring disposition of cases on their merits—is 8 greatly outweighed by the factors favoring dismissal. 9 The fifth factor requires the court to consider whether less drastic alternatives can be used 10 to correct the party’s failure that brought about the court’s need to consider dismissal.7 Courts 11 “need not exhaust every sanction short of dismissal before finally dismissing a case, but must 12 explore possible and meaningful alternatives.”8 Because this court cannot operate without 13 collecting reasonable fees, and litigation cannot progress without a plaintiff’s compliance with 14 court orders, the only alternative is to enter a second order setting another deadline. But issuing

15 a second order will only delay the inevitable and further squander the court’s finite resources. 16 17

18 5 In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 19 6 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 20 7 Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before the party has disobeyed a court order does not satisfy this factor); 21 accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases that “implicitly accepted pursuit of less drastic 22 alternatives prior to disobedience of the court’s order as satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of dismissal for failure to 23 comply[,]” have been “eroded” by Yourish). 8 Henderson, 779 F.2d at 1424. 1|| Indeed, Nunn has filed more than 80 pro se lawsuits in this district since July 2023.’ Dozens of 2|| these lawsuits have been dismissed because, like here, Nunn failed to correct fundamental defects with them like filing a single, signed complaint and either paying the filing fee or filing a All complete application to proceed in forma pauperis.'° Setting another deadline is not a meaningful alternative given these circumstances. So the fifth factor favors dismissal. 6 Having thoroughly weighed these dismissal factors, I find that they weigh in favor of 7|| dismissal. IT IS THEREFORE ORDERED that THIS ACTION IS DISMISSED without 8|| prejudice based on the plaintiffs failure to pay the filing fee or seek to proceed in forma pauperis 9] in compliance with the court’s order. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. If Tyrone Nunn wishes to pursue his claims, he must 11]| file a complaint in a new case, and he must pay the fee for that action or file a complete 12|| application to proceed in forma pauperis. 13 Dated: December 9, 2024 Loe ( U.S. District Judge Jensrfer A. Dorsey 14 15 16 17 18 19 20 21 I take judicial notice of the online docket records of the U.S. Courts, which may be accessed by the public at: https://pacer.uscourts.gov. See, e.g., Nunn v. Dep’t of Corr., Case No. 3:24-cv-00050-ART-CLB, ECF No. 4 (D. Nev. Nov. 20, 2024) (collecting cases).