Jones v. Shinn et al

Filing 32

DISMISSAL ORDER. Signed by JUDGE LESLIE E. KOBAYASHI on 04/08/2015. --The dismissal is without prejudice. The Clerk shall close the case and enter judgment (eps)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
OPHERRO G. JONES, Fed. Reg.
#02902-122,

) CIV. NO. 14-00231 LEK/BMK
)
) DISMISSAL ORDER
Plaintiff,
)
)
vs.
)
)
WARDEN SHINN, et al.,
)
)
)
Defendants.
______________________________ )
DISMISSAL ORDER
Plaintiff commenced this civil action on May 14, 2014.
He chose to pay the filing fee and is not proceeding in forma
pauperis.

See Doc. No. 4.

On August 18 and 29, 2014, the court

instructed Plaintiff to serve the original complaint on
Defendants Shinn and Ackley.

Doc. Nos. 19, 23.

On September 26,

2014, the court instructed Plaintiff to serve his amended
pleading on Defendants Shinn, Ackley, and Inouye.

Doc. No. 25.

On December 3, 2014, the court ordered Plaintiff to serve
Defendants pursuant to Rule 4(i) of the Federal Rules of Civil
Procedure on or before January 25, 2015.

Doc. No. 30.

The court

notified Plaintiff that failure to do so without a showing of
good cause could result in dismissal of this action.

Id.

Plaintiff neither served Defendants nor otherwise responded to
the December 3, 2014 Order.

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On February 27,2015, the court ordered Plaintiff to
show cause in writing on or before March 24, 2015, why this
action should not be dismissed without prejudice for his failure
to serve Defendants and prosecute this action.

Doc. No. 31.

Plaintiff was notified again that failure to do so would result
in dismissal of this action for failure to prosecute or follow a
court order.

The deadline to respond to the February 27, 2015

Order to Show Cause has passed, and Plaintiff has neither
responded nor shown proof of service.
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 R.R. 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).

This inherent power is recognized in Federal

Rule of Civil Procedure 83: “A judge may regulate practice in any
manner consistent with federal law, rules adopted under 28 U.S.C.
§§ 2072 and 2075, and the district’s local rules.”

It is

“broader and more flexible than the authority specified in [Rule]

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41(b).”

Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 951 (9th

Cir. 1976) (citing Link, 370 U.S. at 630–32).
Thus, a court may dismiss an action with or without
prejudice based on a party’s failure to prosecute or failure to
comply with federal or local rules of civil procedure.

See,

e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir.1995)
(affirming district court’s discretionary 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: “(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.

“[T]he key factors are prejudice and availability of

lesser sanctions.”

Wanderer v. Johnson, 910 F.2d 652, 656 (9th
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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”).
Plaintiff filed this action nearly a year ago and has
made no apparent effort to serve Defendants.

The court has sent

Plaintiff a copy of Rule 4, instructed him to serve Defendants
pursuant to Rule 4(i), granted extensions of time to effect
service, and directed him several times to either serve
defendants or show good cause why he cannot.
19, 23, 25, 30, 31.

See Doc. Nos. 18,

These attempts to enable Plaintiff to serve

the Complaint have been ineffective.

Plaintiff’s failure to

serve Defendants or respond to the court’s orders prevents the
case from proceeding and prejudices the Government’s ability to
promptly respond to and investigate his claims.

The court finds

that the policy favoring disposition of cases on their merits is
outweighed by the factors in favor of dismissal.
II.

CONCLUSION

Having carefully considered the five factors set forth
in Ferdik, 963 F.2d at 1260, this action is DISMISSED.

See In re

Phenylpropanolamine (PPA) Cases, 460 F.3d 1217, 1226 (9th Cir.
2006); Malone v. U.S. Postal Serv., 833 F.2d 128, 132-33 (9th
Cir. 1987).

Because dismissal with prejudice is unnecessarily

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harsh, this dismissal is without prejudice.

The Clerk shall

close the case and enter judgment.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 8, 2015.

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

Jones v. Shinn, 1:14-00231 LEK/BMK; psa defc’y & dsm ords 2015; J:\PSA Draft
Ords\LEK\Jones 14-231 LEK (dsm f.pros, srv, respd OSC).wpd

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