Grandinetti v. State of Hawaii

Filing 7

DISMISSAL ORDER. ~ The action is DISMISSED without prejudice. Signed by JUDGE LESLIE E. KOBAYASHI on 3/29/2013. (afc)CERTIFICATE OF SERVICEParticipants 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
FRANCIS ANTHONY GRANDINETTI,
II, #A0185087,

)
)
)
Petitioner,
)
)
vs.
)
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STATE OF HAWAII,
)
)
)
Respondent.
_____________________________ )

NO. 1:13-cv-00009 LEK/RLP
DISMISSAL ORDER

DISMISSAL ORDER
Petitioner Francis Anthony Grandinetti, II, a state
prisoner proceeding pro se, filed a document labeled “Federal
habeas corpus proofs” on January 8, 2013.

ECF No. 1.

On January

11, 2013, the Court construed this document as seeking habeas
corpus relief, dismissed the Petition, ordered Petitioner to
amend on court forms, name the correct Respondent, clarify his
claims, and pay the $5.00 filing fee or seek in forma pauperis
status.

ECF No. 4.

On February 11, 2013, the Court granted

Petitioner an extension of time to comply with this order, until
on or before March 13, 2013.

ECF No. 6.

Petitioner has failed

to respond or otherwise comply with the Court’s orders.

I. DISCUSSION
“District courts have inherent power to control their
dockets,” and in exercising that power, a court may impose

sanctions including dismissal of an action.

Thompson v. Hous.

Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986); see also
Link v. Wabash Railroad Co., 370 U.S. 626, 629-31, 633 (1962)
(recognizing courts’ power to control their dockets, with or
without motion, and noting that in appropriate circumstances, the
court may dismiss a complaint for failure to prosecute without
notice or hearing).

A court may dismiss an action with

prejudice, based on a party’s failure to prosecute, obey a court
order, or comply with local rules.

See, e.g., Ghazali v. Moran,

46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for failure to
comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258,
1260–61 (9th Cir. 1992) (dismissal for failure to comply with
order requiring amendment of complaint); Malone v. U.S. Postal
Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure
to comply with a court order); Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute
and comply with local rules).
Before dismissing an action for failure to prosecute,
obey a court order, or comply with court rules, the court must
consider 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; (4) the
public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.”

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Henderson, 779

F.2d at 1423–24; see also Ferdik, 963 F.2d at 1260–61; Thompson,
782 F.2d at 831.

“The first two of these factors favor the

imposition of sanctions in most cases, while the fourth cuts
against a default or dismissal sanction.

Thus the key factors

are prejudice and availability of lesser sanctions.”

Wanderer v.

Johnson, 910 F.2d 652, 656 (9th Cir. 1990); see also Ferdik, 963
F.2d at 1260 (noting that “it is incumbent upon [the Ninth
Circuit] to preserve the district courts’ power to manage their
dockets without being subject to endless vexatious noncompliance
of litigants”).
Here, the first, second, and third factors favor
dismissal.

Petitioner’s failure to comply with the Court’s order

prevents the case from proceeding in the foreseeable future.
Moreover, Plaintiff’s failure to prosecute this action, which is
apparently challenges a 1988 conviction, will prejudice the State
and thwarts the public interest in the finality of criminal
judgments.

The Court will not, and cannot, hold the case in

abeyance based upon Petitioner’s failure to pay the filing fee
and prosecute this action.

Further, the policy favoring

disposition of cases on their merits is outweighed by the factors
in favor of dismissal, and by the fact that Petitioner has
already unsuccessfully pursued habeas relief in this court.
Grandinetti v. State, Civ. No. 05-00254 DAE (D. Haw. 2005)
(dismissal as timebarred).

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See

Rule 41(b) of the Federal Rules of Civil Procedure
provides that a dismissal for failure to prosecute operates as an
adjudication upon the merits “[u]nless the court in its order for
dismissal otherwise specifies.”

The Court finds that dismissal

with prejudice would be unnecessarily harsh.

Accordingly, IT IS

ORDERED pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure, this action is DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 29, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Grandinetti v. State of Hawaii, 1:13-cv-00009 LEK/RLP; DISMISSAL ORDER; G:\docs\prose
attys\Habeas\DMP\2013\Grandinetti 13-09 lek (pay $5 or file IFP & ct. forms etc).wpd

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