Tierney v. Sgt Tapu et al

Filing 10

ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE. Signed by JUDGE HELEN GILLMOR on 5/18/2012. ~ this action is DISMISSED for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b). (ecs, )CERTIFICATE OF S ERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 12-00135 HG/KSC
)
Plaintiff,
)
) ORDER DISMISSING ACTION FOR
vs.
) FAILURE TO PROSECUTE
)
SGT. TAPU, BRAYDEN WADE
)
KALAHIKI, CITY AND COUNTY OF
)
HONOLULU,
)
)
)
Defendants.
______________________________ )
MICHAEL C. TIERNEY, #A0201434

ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE
On March 16, 2012, Plaintiff was ordered to show cause
on or before April 19, 2012, why he should be allowed to proceed
in forma pauperis (“IFP”) in this action when he has accumulated
more than three strikes pursuant to 28 U.S.C. § 1915(g) and his
Complaint does not demonstrate imminent danger of serious
physical injury.

ECF #3.

Plaintiff was also ordered to submit a

fully completed IFP application with his response to the order to
show cause.

Plaintiff was warned that failure to file a response

on or before April 19, 2012, showing good cause, or pay the full
filing fee, would result in the dismissal of this action without
further notice.
Rather than responding to the court’s order to show
cause, Plaintiff chose to file an appeal.

See ECF #4.

The Court

of Appeals for the Ninth Circuit dismissed Plaintiff’s appeal for
lack of jurisdiction.

ECF #8.

The appellate court also directed

Plaintiff to show cause why he should not be subject to a pre-

filing review order in that court, for his “practice of burdening
[the appellate] court with meritless litigation.”

ECF #9.

Approximately one month has passed since the date that
Plaintiff’s response and completed IFP application was due and he
has submitted nothing.

For the following reasons, this action is

DISMISSED for Plaintiff’s failure to prosecute and otherwise obey
the court’s order.
I.

DISCUSSION

In considering dismissal under Federal Rule of Civil
Procedure 41(b),1 the court must weigh five factors: (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 the defendants or respondents; (4) the availability of less
drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.

Pagtalunan v. Galaza, 291

F.3d 639, 642 (9th Cir. 2002)(citing Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992)).
A.

Expeditious Resolution
“The public’s interest in expeditious resolution of

litigation always favors dismissal.”
191 F.3d 983, 990 (9th Cir. 1990).
1

Yourish v. Cal. Amplifier,

Plaintiff was directed to

The Court may dismiss a case on its own motion without
awaiting a defense motion. See, e.g., Link v. Wabash R.R., 370
U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United
States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
2

file a response to the order to show cause and a complete IFP
application, or pay the filing fee on or before April 19, 2012.
He chose instead to file a frivolous appeal of a non-final order.
This factor weighs in favor of dismissal.
B. Docket Management
“The trial judge is in the best position to determine
whether the delay in a particular case interferes with docket
management and the public interest.”
(citing Yourish, 191 F.3d at 990).

Pagtalunan, 291 F.3d at 642
Litigants who do not move

forward with the cases they choose to file disrupt the court’s
handling of other matters by consuming time and resources needed
by litigants who do wish to go forward.

This is particularly

true with Plaintiff, who has peppered the court with numerous
frivolous actions, motions, and appeals within the past several
months and years.

This factor weighs heavily in favor of

dismissal.
C. Prejudice to Defendants
“To prove prejudice, a defendant must establish that
plaintiff’s actions impaired defendant’s ability to proceed to
trial or threatened to interfere with the rightful decision of
the case.”

Pagtalunan, 291 F.3d at 642 (citing Malone v. United

States Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)).
Plaintiff filed this action on March 9, 2012.

Because

he moved to proceed IFP and has more than three strikes, the
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court ordered him to show cause why this case should proceed
without prepayment of the filing fee.

He has not done so.

Moreover, Plaintiff failed to submit a complete IFP application,
although he is clearly aware of this requirement, and he chose to
file a frivolous appeal rather than respond.

Defendants do not

even know at this point that a case has been opened.
Consequently, Defendants are unaware of any need to discover or
maintain evidence in their defense.

Plaintiff does not seem

concerned about prosecuting this action or of alerting Defendants
to his claims against them.

Rather, his numerous filings in this

and other cases border on vexatiousness.

This factor weighs in

favor of dismissal.
D. Alternatives
The alternatives here, of course, are dismissal of this
action with or without prejudice.

Dismissal without prejudice

would allow Plaintiff to refile this case, again taking up the
Court’s time and resources in prescreening the Complaint and IFP
application, issuing another order to show cause, and awaiting
another frivolous appeal, and Plaintiff’s non-forthcoming
response.

The court understands its obligations to pro se

litigants and endeavored to fulfill them in this case.
to Show Cause, ECF #3.

See Order

Plaintiff did not respond to that Order.

Dismissal is appropriate here.
//

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E. Disposition on Merits
Finally, public policy favors the disposition of cases
on their merits.

Pagtalunan, 291 F.3d at 643 (citing Hernandez

v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).
factor will normally counsel against dismissal.

This

In this case,

however, Plaintiff’s claims concern events that allegedly
occurred four years ago, and his vague fear that they may occur
again.

The court ordered Plaintiff to show cause why he should

be allowed to proceed IFP because it explicitly found that the
Complaint failed to allege imminent danger of serious physical
injury to overcome 28 U.S.C. § 1915(g)’s bar.

Disposition on the

merits of this case is unlikely to result in a favorable outcome
for Plaintiff, even if he is granted IFP or pays the filing fee.
Thus, the public policy in favor of disposition of cases on their
merits does not weigh in Plaintiff’s favor here.
II.

CONCLUSION

While the policy in favor of disposition on the merits
normally weighs against dismissal under Rule 41(b), that interest
is weaker here, where Plaintiff’s Complaint does not show
imminent danger of serious physical injury sufficient to overcome
§ 1915(g)’s bar, and otherwise appears to fail to state a claim.
The public’s interest in expeditious resolution of litigation,
the court’s interest in managing its own docket, the risk of
prejudice to the Defendants, and the lack of meaningful
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alternatives all weigh heavily in favor of dismissal.
Accordingly, this action is DISMISSED for failure to prosecute,
pursuant to Fed.R.Civ.P. 41(b).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 18, 2012.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Tierney v. Tapu, et al., Civ. No. 12-00135 HG/KSC; Order Dismissing Action For
Failure To Prosecute; psas/3 Strikes Ords/DMP/2012/Tierney 12-135 hg (dsm frcp
41(b))

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