Tierney v. Abercrombie et al
DISMISSAL ORDER. Signed by JUDGE LESLIE E. KOBAYASHI on 3/29/2013. ~ "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 CivilProcedure, this action is DISM ISSED without prejudice." (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
) CIV. NO. 13-00051 LEK/KSC
) DISMISSAL ORDER
NEIL ABERCROMBIE, et al.,
MICHAEL C. TIERNEY,
On January 29, 2013, Plaintiff, a Hawaii prisoner
incarcerated at the Halawa Correctional Facility (“HCF”), filed a
document titled “Motion for Emergency Medical Treatment.”
Plaintiff did not use the court’s prisoner civil rights
complaint form or submit the $350.00 filing fee or an in forma
pauperis (“IFP”) application.
On February 2 and 4, 2013, the
Court ordered Plaintiff to submit his claims on the court’s
prisoner civil rights complaint form and submit an IFP
application or civil filing fee on or before March 6, 2013.
Nos. 3 and 4.
The Court provided Plaintiff with the necessary
On February 20, 2013, Plaintiff moved for a thirty-day
extension of time to file the IFP application; Plaintiff did not
request an extension of time to submit an amended complaint on
ECF No. 6.
On February 21, 2013, the Court granted
a thirty-day extension of time to file the IFP application; it
did not extend the time to submit the amended complaint on court
ECF No. 8.
On March 6, 2013, Plaintiff filed an incomplete IFP
The Court informed Plaintiff that it would take no
action on the IFP application until he submitted a certified
prison trust account statement, and granted Plaintiff additional
time to provide the statement, until on or before March 28, 2013.
ECF No. 10.
The Court also directed the Hawaii Department of
Public Safety and the HCF Warden to assist Plaintiff if
On March 21, 2013, Plaintiff resubmitted the
original, incomplete IFP application, again without a trust
Plaintiff states that he gave the forms to
his HCF case manager, who simply returned them to him.
has never submitted an amended complaint on court-approved forms
or a prison trust account statement.
“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.”
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.”
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
Here, the first, second, and third factors clearly
Petitioner’s failure to comply with the Court’s
order to file an amended complaint on court forms or submit a
complete IFP application prevents the case from proceeding in the
Without the amended complaint, the Court is
unable to screen Plaintiff’s claims pursuant to 28 U.S.C.
§ 1915(e), or determine whether Plaintiff, who has accrued three
strikes under § 1915(g), can even proceed in forma pauperis.
28 U.S.C. § 1915(g) (allowing a prisoner with three strikes to
proceed in forma pauperis on a showing of imminent danger of
serious physical injury).
Moreover, Plaintiff is a prolific litigator in this
court, who has long clogged the Court’s docket with numerous
frivolous actions and motions in this and other cases.
is also clearly able to amend his complaint on court forms.
is literate and has been sent the forms numerous times.
commencing this action he has initiated three other actions in
this court, and several others in the Hawaii state courts.
e.g., Civ. Nos. 13-00052 JMS; 13-00116 JMS; 13-00132 KSC.
notwithstanding his claims to the contrary, Plaintiff is able to
request from the prison and submit to the court a fully-completed
IFP application, including trust account statements, when it
suits his purposes.
See e.g., Civ. No. 13-00116 JMS, ECF No. 8
(Plaintiff’s complete IFP application, including a trust account
statement, dated March 12, 2013).
Plaintiff’s failure to prosecute this action, in which
he alleges the denial of medical care, has already prejudiced the
State’s ability to promptly respond to and investigate
Further, the policy favoring disposition of
cases on their merits is outweighed by the factors in favor of
dismissal, particularly in light of Plaintiff’s history of
pursuing frivolous litigation.
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 AT HONOLULU, HAWAII, March 29, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Tierney v. Abercrombie, et al., Civ. No. 13-00051 LEK/KSC; Dismissal Order;
G:\docs\prose attys\Defc'y Ords (pay, ifp, forms)\DMP\2013\Tierney 13-51 LEK
fail pros. obey
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