United States District Court, D. Hawaii
ORDER DISMISSING CASE
Derrick K. Watson, Judge
October 20, 2016, Plaintiff William Oyadomari, proceeding pro
se, filed a Complaint against officer Chad Hiwatashi alleging
violations of 42 U.S.C. § 1983 and a request to proceed
in forma pauperis (“IFP Application”).
In an October 24, 2016 Order, the Court granted the IFP
Application, dismissed the Complaint pursuant to 28 U.S.C.
§ 1915(e), and granted Oyadomari leave to file an
amended complaint by no later than November 21, 2016. Dkt.
No. 5. Oyadomari has yet to file a First Amended
Complaint or respond to the Court's October 24, 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. The
Court's October 24, 2016 Order was clear:
While Oyadomari's IFP Application is GRANTED, the
Complaint fails to state a claim for relief pursuant to 42
U.S.C. § 1983. Accordingly, as discussed more fully
below, the Court DISMISSES the Complaint with leave to amend
pursuant to 28 U.S.C. § 1915(e). Any amended complaint
must be filed no later than November 21, 2016.
The amended complaint must designate that it is the
“First 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 November 21, 2016 will result in
the automatic dismissal of this action without prejudice.
Based on the foregoing, the Court GRANTS the IFP Application
and DISMISSES the Complaint with leave to amend. Oyadomari is
GRANTED leave to file an amended complaint by no later than
November 21, 2016 in order to cure the deficiencies noted in
10/24/16 Order at 1, 11-12 (Dkt. No. 5).
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). Oyadomari offers no
excuse or explanation for his failure to file a First 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). Oyadomari failed to discharge
his responsibility to prosecute this action despite the
Court's express warning about dismissal in its prior
order. See Dkt. No. 5. Under these circumstances,
the public policy favoring the resolution of disputes on the
merits does not outweigh Oyadomari's failure to file an
amended complaint, as directed by the Court in its October
24, 2016 Order.
Court attempted to avoid outright dismissal of this action by
granting Oyadomari the opportunity 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
Oyadomari'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 ...