United States District Court, D. Hawaii
DWIGHT J. VICENTE, Plaintiff,
LINDA CHU TAKAYAMA, DIRECTOR OF LABOR AND INDUSTRIAL RELATIONS, et al., Defendants.
ORDER DISMISSING CASE
Derrick K. Watson, United States District Judge
October 3, 2016, Plaintiff Dwight J. Vicente, proceeding pro
se, filed a First Amended Complaint against state employees
of the Department of Labor and Industrial Relations
Disability Compensation Division, a worker's compensation
benefits insurer, a healthcare provider, the Governor of the
State of Hawaii, and the United States Congress, alleging
violations of federal law pursuant to 42 U.S.C. § 1983.
The First Amended Complaint suffered from the same
deficiencies as Vicente's initial Complaint, as
identified in the Court's September 12, 2016 Order
granting his in forma pauperis (“IFP”)
Application and dismissing the Complaint with leave to amend.
Dkt. No. 6. In an October 4, 2016 Order, the Court dismissed
the First Amended Complaint pursuant to 28 U.S.C. §
1915(e) and again granted Vicente leave to file an amended
complaint by no later than October 31, 2016. Dkt. No. 8.
Vicente has yet to file a Second Amended Complaint or respond
to the Court's October 4, 2016 Order in any other
fashion. As a result, this action is dismissed without
have the authority to dismiss actions for failure to
prosecute or for failure to comply with court orders. See
Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962)
(“The power to invoke this sanction is necessary in
order to prevent undue delays in the disposition of pending
cases and to avoid congestion in the calendars of the
District Courts.”). The Court has discretion to dismiss
a plaintiff's action for failure to comply with an order
requiring him to file an amended pleading within a specified
time period. Pagtalunan v. Galaza, 291 F.3d 639, 640
(9th Cir. 2002). Before dismissing an action for failure to
prosecute, the Court must weigh: “(1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Id. at
642 (citing Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992)).
careful consideration of these factors, the Court concludes
that dismissal is warranted under the circumstances. The
Court's October 4, 2016 Order was clear:
The amended complaint must designate that it is the
“Second Amended Complaint” and may not
incorporate any part of the original Complaint or First
Amended Complaint. Rather, any specific allegations must be
retyped or rewritten in their entirety. Failure to file an
amended complaint by October 31, 2016 will result in
automatic dismissal of this action without prejudice.
Based on the foregoing, the Court DISMISSES the First Amended
Complaint with leave to amend once more. If Vicente decides
to proceed with this action, he must file an amended
complaint addressing the deficiencies identified above no
later than October 31, 2016. Vicente is STRONGLY CAUTIONED
that failure to file an amended complaint addressing the
deficiencies identified by this order by October 31, 2016
will result in the automatic dismissal of this action without
10/4/16 Order at 18-19 (Dkt. No. 8).
failure to comply with the Court's order hinders the
Court's ability to move this case forward and indicates
that he does not intend to litigate this action diligently.
See Yourish v. California Amplifier, 191 F.3d 983,
990 (9th Cir.1999) (“The public's interest in
expeditious resolution of litigation always favors
dismissal.”). This factor favors dismissal.
risk of prejudice to a defendant is related to a
plaintiff's reason for failure to prosecute an action.
See Pagtalunan, 291 F.3d at 642 (citing
Yourish, 191 F.3d at 991). Vicente offers no excuse
or explanation for his failure to file a Second Amended
Complaint. When a party offers a poor excuse (or, in this
case, no excuse) for failing to comply with a court's
order, the prejudice to the opposing party is sufficient to
favor dismissal. See Yourish, 191 F.3d at 991-92.
This factor favors dismissal.
policy favoring the disposition of cases on their merits
ordinarily weighs against dismissal. However, it is the
responsibility of the moving party to prosecute the action at
a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942
F.2d 648, 652 (9th Cir. 1991). Vicente failed to discharge
the responsibility to prosecute this action despite the
Court's express warnings about dismissal in its prior
orders. See Dkt. Nos. 6 and 8. Under these
circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh Vicente's
failure to file an amended complaint, as directed by the
Court in its October 4, 2016 Order.
Court attempted to avoid outright dismissal of this action by
granting Vicente two opportunities to amend his allegations
and providing specific guidance on how to do so. See
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
(“The district court need not exhaust every sanction
short of dismissal before finally dismissing a case, but must
explore possible and meaningful alternatives.”).
Alternatives to dismissal are not adequate here, given
Vicente's voluntary failure to comply with the
Court's order. Under the present circumstances, less
drastic alternatives are not appropriate. The Court
acknowledges that the public policy favoring disposition of
cases on their merits weighs against dismissal. On balance,
however, because four factors favor dismissal, this factor is
basis of the foregoing, the Court DISMISSES this action
without prejudice and directs the ...