Morris v. Sakai et al

Filing 10

DISMISSAL ORDER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/28/13. "Rule 41(b) of the Federal Rules of Civil Procedure provides that a dismissal for failure to prosecute operates as an adjudication on the merits "[u]nle ss the court in its order for dismissal otherwise specifies." Dismissal with prejudice would be unnecessarily harsh and is not warranted here. Accordingly, this action is DISMISSED without prejudice." (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). Zack Morris shall be served by first class mail at the address of record on March 29, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ZACK MORRIS, #A6047127,
Plaintiff,
vs.
TED SAKAI, et al.,
Defendants.
____________________________

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CIV. NO. 13-00084 SOM/RLP
DISMISSAL ORDER

DISMISSAL ORDER
On February 20, 2013, state inmate Chris Grindling
initiated this prisoner civil rights action on behalf of another
inmate, Plaintiff Zack Morris, without Morris’s consent.
Compl., ECF No. 1; Memorandum, ECF No. 5.

See

On February 27, 2013,

the court dismissed the complaint and all pending motions and
directed Morris to submit an amended complaint and in forma
pauperis (“IFP”) application or payment on or before March 26,
2013, if he wished to continue with this action.

See No. 6.

Morris has not filed an amended complaint or IFP application or
otherwise pursued this action.

Rather, on March 25, 2013, Morris

refused to accept mail forwarded to him by the Clerk of Court
from inmate Grindling.

See Grindling Decl. ECF No. 7; returned

mail ECF No. 9.
Generally, the court considers five factors before
dismissing an action for failure to prosecute: “(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 v. Duncan, 779 F.2d 1421, 1423–24 (9th

Cir. 1986); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61
(9th Cir. 1992)(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 court concludes that Morris’s failure to respond
indicates that he wishes to dismiss the action without prejudice.
Although Morris is blind, he is able to respond to the court’s
order with help from prison officials, who are aware of
Grindling’s involvement in this action.

So that Morris’s

inaction will not prevent this Court from either proceeding with
this action or controlling its docket, and to avoid prejudice to
Defendants, this court, having concluded that Morris was unaware
that Grindling had brought this action on his behalf and having
given Morris the option of pursuing this action on his own, finds
that all five factors favor dismissal.
Rule 41(b) of the Federal Rules of Civil Procedure
provides that a dismissal for failure to prosecute operates as an
adjudication on the merits “[u]nless the court in its order for
dismissal otherwise specifies.”

Dismissal with prejudice would

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be unnecessarily harsh and is not warranted here.

Accordingly,

this action is DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 28, 2013.

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

Morris v. Sakai, et al., 1:13-cv-00084 SOM/RLP; Dismissal Order; G:\docs\prose
attys\Ords\DMP\2013\Morris 13-84 som (dsml fail pros).wpd

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