United States District Court, D. Hawaii
ORDER DISMISSING CASE
Derrick K. Watson, United States District Judge
August 29, 2016, Plaintiff Chris Grindling, proceeding pro
se, filed a First Amended Complaint against Defendants Monica
Chun, Frances Sequeira, and Lyle Antonio, alleging violations
of federal law pursuant to 42 U.S.C. § 1983. Because his
First Amended Complaint suffered from the same deficiencies
as his original Complaint, the Court dismissed it pursuant to
28 U.S.C. § 1915(e), and granted Grindling leave to file
a Second Amended Complaint by no later than October 28, 2016.
See 9/28/16 Order (Dkt. No. 10). Grindling has yet
to file a Second Amended Complaint or respond to the
Court's September 28, 2016 Order in any other fashion. As
a result, this action is dismissed without prejudice.
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 presented
here. The Court's September 28, 2016 Order was clear:
The dismissal of the First Amended Complaint is without
prejudice, and Plaintiff is once more granted leave to amend
to cure the deficiencies identified above.
The amended complaint must designate that it is the
“Second Amended Complaint” and may not
incorporate any part of the original Complaint. Rather, any
specific allegations must be retyped or rewritten in their
entirety. Plaintiff may include only one claim per count.
Failure to file an amended complaint by October 28, 2016 will
result in the automatic dismissal of this action without
Based on the foregoing, the Court GRANTS the IFP Application
and DISMISSES the First Amended Complaint with leave to
amend. Grindling is GRANTED leave to file a Second Amended
Complaint by no later than October 28, 2016
in order to cure the deficiencies noted in this order.
9/28/16 Order at 11-12.
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). Grindling 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). Grindling failed to discharge
the responsibility to prosecute this action despite the
Court's express warnings about dismissal in its prior
orders. See Dkt. Nos. 4 and 10. Under these
circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh Grindling's
failure to file an amended complaint, as directed by the
Court in its September 28, 2016 Order.
Court attempted to avoid outright dismissal of this action by
granting Grindling 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 the
opportunities already provided, and Grindling'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 outweighed.
basis of the foregoing, the Court DISMISSES this action
without prejudice and directs the ...