Wideman v. Abercrombie et al

Filing 6

DISMISSAL ORDER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/15/13. "Pursuant to Rule 41(b), this action is DISMISSED with prejudice. The Clerk of Court should note that this dismissal may constitute a strike pursuant to 28 U.S.C. § 1915(g)." (emt, )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). Lonnell Reginald Wideman served by first class mail at the address of record on April 15, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIV. NO. 13-00081 SOM/BMK
)
)
) DISMISSAL ORDER
Plaintiff,
)
vs.
)
)
)
)
NEIL ABERCROMBIE, et al.,
)
)
Defendants.
______________________________ )
LONNELL REGINALD WIDEMAN,
#A0180563,

DISMISSAL ORDER
On February 27, 2013, the court denied Plaintiff’s in
forma pauperis (IFP) application and notified him to pay the
civil filing fee or submit a complete IFP application on courtapproved forms on or before March 26, 2013.

Order, ECF No. 4.

On March 6, 2013, the court dismissed Plaintiff’s complaint for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and
§ 1915A(b)(1), with leave to amend on or before April 2, 2013.
Order, ECF No. 5.

Plaintiff has not submitted the filing fee, an

IFP application, or an amended complaint.
“District courts have inherent power to control their
dockets,” and in doing so, 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).

Dismissal for failure to prosecute, obey a court

order, or comply with local rules may be with prejudice.

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 amend 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: “(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.”

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
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(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”).
The first three factors favor dismissal.

Plaintiff’s

failure to comply with the court’s Orders prevents the case from
proceeding in the foreseeable future, indicates that Plaintiff is
unable to state a cognizable claim, and prejudices Defendants’
ability to promptly respond to and investigate his claims.

The

policy favoring disposition of cases on their merits is satisfied
by the court’s determination that the Complaint fails to state a
claim and is outweighed by the other factors favoring dismissal.
Dismissal for failure to prosecute operates as an
adjudication on the merits “[u]nless the court in its order for
dismissal otherwise specifies.”

Fed. R. Civ. P. 41(b).

Dismissal with prejudice is appropriate here because Plaintiff
has failed to state a claim and is apparently unable to do so.
Pursuant to Rule 41(b), this action is DISMISSED with prejudice.
The Clerk of Court should note that this dismissal may constitute
a strike pursuant to 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 15, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Wideman v. Abercrombie, et al., Civ. No. 13-00081 SOM/BMK; G:\docs\prose attys\Defc'y
Ords\DMP\2013\Wideman 13-81 som (dsm fail to amd or pros.).wpd

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