Piedvache v. Ige et al

Filing 43

ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 12/5/2016. - The Court DISMISSES this action without prejudice and directs the Clerk of Court to close this case. (ecs, )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 HAWAI‘I

RODNEY-EMILE PIEDVACHE,

Civil No. 16-00138 DKW-RLP
ORDER DISMISSING CASE

Plaintiff,

vs.

GOVERNOR DAVID IGE, et al.,

Defendants.

ORDER DISMISSING CASE

On March 24, 2016, Plaintiff Rodney-Emile Piedvache, proceeding pro se,
filed a Complaint against the Governor of the State of Hawaii and his wife;
members of the Hawaii congressional delegation and their spouses; the County of
Hawaii Police Department and individual officers involved in his arrest for failure
to comply with drivers’ licensing and motor vehicle registration requirements; and
the Hawaii Tribune Herald newspaper, alleging violations of 42 U.S.C. § 1983,

copyright law, and criminal law. In a November 2, 2016 Order, the Court granted
defendants’ motions to dismiss and granted Piedvache limited leave to file an
amended complaint by no later than November 28, 2016. Dkt. No. 42. Piedvache
has yet to file an amended complaint or respond to the Court’s November 2, 2016
Order in any other fashion. As a result, this action is dismissed without prejudice.
Courts have the authority to dismiss actions for failure to prosecute or for
failure to comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626,
629-31 (1962) (“The power to invoke this sanction is necessary in order to prevent
undue delays in the disposition of pending cases and to avoid congestion in the
calendars of the District Courts.”). The Court has discretion to dismiss a plaintiff’s
action for failure to comply with an order requiring him to file an amended
pleading within a specified time period. Pagtalunan v. Galaza, 291 F.3d 639, 640
(9th Cir. 2002). Before dismissing an action for failure to prosecute, the Court
must weigh: “(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
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
public policy favoring disposition of cases on their merits.” Id. at 642 (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

2 

Upon careful consideration of these factors, the Court concludes that
dismissal is warranted under the circumstances.1 The Court’s November 2, 2016
Order was clear:
The dismissal of the following claims is without prejudice:
Section 1983 claim based upon violations of the Fourth and
Eighth Amendments; Section 1986 claim; and civil RICO
claim. Piedvache is granted limited leave to amend only these
claims in order to attempt to cure the deficiencies identified
above. To be clear, any amended complaint may not re-allege
copyright or criminal law claims dismissed with prejudice by
this order or any official-capacity claims for damages against
Senator Schatz, Senator Hirono, Congresswoman Gabbard, or
Governor Ige.
****
Failure to file an amended complaint by November 28, 2016
will result in the automatic dismissal of this action without
prejudice.
****
Piedvache is granted limited leave to file an amended complaint
in accordance with the terms of this order by no later than
November 28, 2016. The Court CAUTIONS Piedvache that
failure to file an amended complaint by November 28, 2016
will result in the automatic dismissal of this action without
prejudice.

1

As noted in the Court’s prior Order, because Piedvache is appearing pro se, the Court liberally
construes his pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although he is
proceeding pro se, Piedvache is familiar with his federal court filing and pleading
responsibilities. Piedvache has filed previous, unsuccessful actions against the State of Hawaii
and County of Hawaii Police Department based on prosecutions for traffic violations and
purported copyright violations. See, e.g., 01-cv-00294-HG-KSC; 10-cv-00158-JMS-LEK.
3 

11/2/16 Order at 24-27 (Dkt. No. 42).
Piedvache’s failure to comply with the Court’s order hinders the Court’s
ability to move this case forward and indicates that he does not intend to litigate
this action diligently. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th
Cir. 1999) (“The public’s interest in expeditious resolution of litigation always
favors dismissal.”). This factor favors dismissal.
The risk of prejudice to a defendant is related to a plaintiff’s reason for
failure to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish,
191 F.3d at 991). Piedvache offers no excuse or explanation for his failure to file a
First Amended Complaint. When a party offers a poor excuse (or, in this case, no
excuse) for failing to comply with a court’s order, the prejudice to the opposing
party is sufficient to favor dismissal. See Yourish, 191 F.3d at 991-92. This factor
favors dismissal.
Public policy favoring the disposition of cases on their merits ordinarily
weighs against dismissal. However, it is the responsibility of the moving party to
prosecute the action at a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
Piedvache failed to discharge his responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior order. See Dkt. No. 42.
4 

Under these circumstances, the public policy favoring the resolution of disputes on
the merits does not outweigh Piedvache’s failure to file an amended complaint, as
directed by the Court in its November 2, 2016 Order.
The Court attempted to avoid outright dismissal of this action by granting
Piedvache the opportunity to amend his allegations and providing specific
guidance on how to do so. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th
Cir. 1986) (“The district court need not exhaust every sanction short of dismissal
before finally dismissing a case, but must explore possible and meaningful
alternatives.”). Alternatives to dismissal are not adequate here, given Piedvache’s
voluntary failure to comply with the Court’s order. Under the present
circumstances, less drastic alternatives are not appropriate. The Court
acknowledges that the public policy favoring disposition of cases on their merits
weighs against dismissal. On balance, however, because four factors favor
dismissal, this factor is outweighed.

5 

On the basis of the foregoing, the Court DISMISSES this action without
prejudice and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
Dated: December 5, 2016 at Honolulu, Hawai‘i.

Piedvache v. Ige, et al.; CV 16-00138 DKW-RLP; ORDER DISMISSING CASE
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