United States District Court, D. Hawaii
ORDER DISMISSING CASE
Derrick K. Watson United States District Judge
28, 2018, Plaintiff Clifford Ray Hackett, proceeding pro se,
filed a Complaint against Maureen O'Donnell, Gina Reyes,
and Jacqueline Hackett, each of whom he contends violated his
federal civil rights. Hackett sought damages for violations
of his right to due process, stemming from his state court
divorce proceedings with Jacqueline, which he alleged
resulted in the loss of his property and assets. Dkt. No. 1.
Hackett also filed a “Motion for Free Process, ”
which the court construed as an in forma pauperis
application (“IFP Application”), together with a
request to allow filing by fax and for electronic process
service. Dkt. No. 2. Because Hackett failed to state a
cognizable claim for relief by failing to include factual
allegations demonstrating that his rights had been violated
or that he was plausibly entitled to relief from any
Defendant, the Complaint was dismissed with leave to amend on
July 6, 2018, pursuant to 28 U.S.C. § 1915(e). Dkt. No.
5. The incomplete IFP Application was also denied without
prejudice, and the Court deferred ruling on Hackett's
requests to allow filing by fax and electronic process
service, pending the filing of an amended complaint.
August 2, 2018, Hackett, again proceeding pro se, filed (1) a
First Amended Complaint (“FAC”) against Maureen
O'Donnell, Gina Reyes, Bryan Pickering and Jacqueline
Hackett (Dkt. No. 7); and (2) an incomplete, unsigned IFP
Application. Dkt. No. 8. As best the Court could discern,
Hackett again sought damages for unspecified violations of
law, stemming from his state court divorce proceedings with
Jacqueline. FAC at 1. The FAC, like his original Complaint,
failed to include factual allegations demonstrating that
Hackett's rights have been violated or that he is
plausibly entitled to relief from any Defendant. Because
Hackett failed to state a cognizable claim for relief or
establish this Court's subject matter jurisdiction, the
FAC was dismissed with leave to amend, pursuant to 28 U.S.C.
§ 1915(e). Dkt. No. 10 (8/10/18). The unsigned IFP
Application was again denied without prejudice, pending the
filing of an amended complaint. Dkt. No. 10.
Court imposed a deadline of September 6, 2018, for the filing
of a second amended complaint (“SAC”) and a
completed IFP application, neither of which has been received
as of the date of this Order. Consequently, the case is
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 8/10/18 Order was clear:
The FAC is dismissed without prejudice, and for the second
time, Hackett is granted leave to amend to attempt to cure
the deficiencies identified above. If Hackett chooses to file
an amended complaint, he must write short, plain statements
telling the Court: (1) the specific basis of this Court's
jurisdiction; (2) the constitutional or statutory right
Plaintiff believes was violated; (3) the name of the
defendant who violated that right; (4) exactly what that
defendant did or failed to do; (5) how the action or inaction
of that defendant is connected to the violation of
Plaintiff's rights; and (6) what specific injury
Plaintiff suffered because of that defendant's conduct.
Plaintiff must repeat this process for each person or entity
that he names as a defendant. If Hackett fails to
affirmatively link the conduct of each named defendant with
the specific injury he suffered, the allegation against that
defendant will be dismissed for failure to state a claim.
Based upon the foregoing, Hackett's FAC is DISMISSED with
leave to amend. Hackett is once more granted leave to file an
amended complaint in accordance with the terms of this Order
by September 6, 2018. The Court CAUTIONS
Hackett that failure to file an amended complaint by
September 6, 2018 may result in the
automatic dismissal of this action without prejudice. The
Court DENIES without prejudice Hackett's IFP Application
(Dkt. No. 8) and defers ruling on his requests to allow
filing by fax and for electronic process service, pending the
filing of an amended complaint. If he elects to file an
amended complaint, Hackett shall file a fully executed IFP
Application or pay the requisite filing fee by
September 6, 2018.
8/10/18 Order at 16-17. Hackett's failure to comply with
the 8/10/18 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
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). Hackett 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). Hackett failed to discharge
his responsibility to prosecute this action despite the
Court's express warnings about dismissal in its prior
order. See 8/10/18 Order at 16-17. Under these
circumstances, the public policy favoring the ...