United States District Court, D. Hawaii
ORDER DISMISSING CASE
Derrick K. Watson United States District Judge.
5, 2017, Plaintiff Ronald Fountain, a resident of
Philadelphia, Pennsylvania, proceeding pro se, filed a
Complaint for violations of federal law against the United
States, the Attorney General of the United States, and the
United States Attorney for the District of Hawaii. On June
19, 2017, Fountain filed an Application to proceed in
forma pauperis ("Application"). In a June 21,
2017 Order, the Court granted Fountain's Application and
dismissed the Complaint, but granted Fountain limited leave
to file an amended complaint by no later than July 21, 2017.
Dkt. No. 9 (6/21/17 Order). Fountain has yet to file an
amended complaint or respond to the Court's June 21, 2017
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."). More specifically, 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)). Upon careful consideration of these factors, the
Court concludes that dismissal without prejudice is warranted
under the circumstances.
Court's June 21, 2017 Order was clear:
[B]ecause Fountain fails to include any factual allegations
demonstrating that his rights have been violated or that he
is entitled to relief from any Defendant, the Court DISMISSES
the Complaint and GRANTS Fountain limited leave to file an
amended complaint in accordance with the terms of this order
by July 21, 2017.
* * *
Because Fountain fails to state a plausible claim for relief,
the Complaint is DISMISSED. Because amendment may be
possible, dismissal is with leave to amend, as further
described below. . . . The dismissal of the Complaint is
without prejudice, and Fountain is granted leave to amend to
attempt to cure the deficiencies identified above.
* * * *
Failure to file an amended complaint by July 21, 2017 will
result in the automatic dismissal of this action without
prejudice. . . . Based upon the foregoing, the IFP
Application is GRANTED, and the Complaint is DISMISSED with
limited leave to amend.
Fountain is granted limited leave to file an amended
complaint in accordance with the terms of this order by July
21, 2017. The Court CAUTIONS Fountain that failure to file an
amended complaint by July 21, 2017 will result in the
automatic dismissal of this action without prejudice.
6/21/17 Order at 1-2, 9-11.
failure to comply with the June 21, 2017 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 plaintiffs
reason for failure to prosecute an action. See
Pagtalunan, 291 F.3d at 642 (citing Yourish,
191 F.3d at 991). Fountain 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
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). Fountain failed to discharge
his responsibility to prosecute this action despite the
Court's express warnings about dismissal in its prior
order. See 6/21/17 Order at 10-11. Under these
circumstances, the public policy favoring the resolution ...