Doe v. Honolulu Emergency Services Department , Unknown Employees 1-6 et al

Filing 55

ORDER DENYING PLAINTIFF'S OBJECTIONS AND ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE re 53 Findings and Recommendations.. Signed by JUDGE LESLIE E. KOBAYASHI on 05/12/2017. The F&R is ADOPTED insofar as Plaintiff's Complaint, filed June 29, 2016, is HEREBY DISMISSED, and the F&R is MODIFIED insofar as the dismissal of the Complaint is WITHOUT PREJUDICE to the filing of a new case.< p>This Court therefore DIRECTS the Clerk's Office to close the instant case on June 2, 2017, unless a motion for reconsideration of the instant Order is filed by May 30, 2017. (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 served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN DOE,
Plaintiff,
vs.
UNKNOWN OFFICERS OF HONOLULU
POLICE DEPARTMENT 1-6;
UNKNOWN EMPLOYEES OF HONOLULU
EMERGENCY SERVICES DEPARTMENT
1-6; CITY AND COUNTY OF
HONOLULU, a municipal
corporation of the State of
Hawaii; THE QUEEN’S MEDICAL
CENTER, a Hawaii nonprofit
corporation; ANDREW E. HALL,
R.N.; THE EMERGENCY GROUP,
INC., a Hawaii professional
corporation; BRANDI GARY,
M.D.; UNKNOWN PHYSICIANS 1-6;
UNKNOWN MEDICAL WORKERS 1-6;
UNKNOWN SECURITY GUARDS 1-6,
Defendants.
_____________________________

CIVIL 16-00359 LEK-KJM

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ORDER DENYING PLAINTIFF’S OBJECTIONS AND
ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGE’S FINDINGS
AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE
On April 24, 2017, the magistrate judge filed his
Findings and Recommendation to Dismiss Case for Failure to
Prosecute (“F&R”).

[Dkt. no. 53.]

On May 3, 2017, pro se

Plaintiff John Doe (“Plaintiff”) filed a document titled
“Plaintiff’s Response to Findings and Recommendations to Dismiss
Case for Failure to Prosecute.”

[Dkt. no. 54.]

This Court

CONSTRUES Plaintiff’s filing as his objections to the F&R

(“Objections”).

The Court has considered the Objections without

a hearing, in accordance with Rule LR7.2(e) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the F&R,

the Objections, and the relevant legal authority, Plaintiff’s
Objections are HEREBY DENIED and this Court HEREBY ADOPTS the F&R
AS MODIFIED.
DISCUSSION
I.

Plaintiff’s Objections
The first argument that Plaintiff raises in the

Objections is that he “disagrees” with the magistrate judge’s
denial of his motion to proceed under a pseudonym and that he
should be allowed to proceed anonymously.

[Objections at 2, 4.]

Plaintiff filed a Motion for Leave to Proceed Anonymously and for
Protective Order on July 25, 2016.

[Dkt. no. 7.]

The magistrate

judge filed his order denying the motion on January 30, 2017
(“1/30/17 Order”).

[Dkt. no. 45.]

Plaintiff did not file either

a motion for reconsideration of the 1/30/17 Order or an appeal of
the 1/30/17 Order to this Court.
The portion of the Objections that attempts to appeal
the 1/30/17 Order is DENIED because Plaintiff waived any
objection to the 1/30/17 Order by failing to file a timely
appeal.

See Local Rule LR74.1 (“Any party may appeal from a

magistrate judge’s order determining a motion . . . within
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fourteen (14) days after being served with a copy of the
order.”).

This Court therefore cannot consider the merits of

Plaintiff’s arguments challenging the 1/30/17 Order.
Second, this Court CONCLUDES that the Objections do not
actually challenge the magistrate judge’s recommendation in the
F&R, except to argue that the magistrate judge should have
recommended that the dismissal of the case be without prejudice.
After considering the five factors identified in Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002), the magistrate judge
recommended dismissal of the case pursuant to Fed. R. Civ. P.
41(b).

[F&R at 4-5.]

Rule 41(b) states: “If the plaintiff fails

to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under
this subdivision (b) . . . operates as an adjudication on the
merits.”

The F&R does not specify whether the magistrate judge

recommends dismissal with prejudice or without prejudice, and the
F&R does not contain an analysis of the issue.

This Court

therefore CONSTRUES the F&R as leaving it to this Court to
determine whether the dismissal is with prejudice or without
prejudice.
Because the F&R does not contain a recommendation as to
whether the dismissal should be with prejudice or without
prejudice, Plaintiff’s objection on this issue is DENIED.

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Plaintiff has not presented any reason why this Court should not
adopt the recommendation to dismiss the case, and this Court
agrees with the magistrate judge that dismissal is appropriate
under the circumstances of this case.

This Court therefore

ADOPTS the F&R.
II.

Whether the Dismissal is With Prejudice
Although this Court has denied Plaintiff’s Objections

and adopted the recommendation to dismiss the case, this Court
must still address whether the dismissal is with prejudice or
without prejudice.

This district court has stated:

“A Rule 41(b) dismissal is deemed a sanction for
disobedience,” . . . . Edwards v. Marin Park,
Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). While
“[d]ismissal is a harsh penalty and is to be
imposed only in extreme circumstances,” dismissal
with prejudice is not beyond the acceptable range
of sanctions. See Dreith v. Nu Image, Inc., 648
F.3d 779, 788 (9th Cir. 2011). Such dismissal is
appropriate when “at least three factors strongly
support dismissal.” Id.; Pagtalunan, 291 F.3d at
643. . . .
In re Lagmay, CIV. NO. 15-00166 DKW/RLP, 2015 WL 5970667, at *2
(D. Hawai`i Oct. 13, 2015), aff’d sub nom., Lagmay v. Nobriga,
No. 15-17068, 2016 WL 7407294 (9th Cir. Dec. 22, 2016).
In the F&R, the magistrate judge found that four of the
Pagtalunan factors weighed in favor of dismissal – “(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 defendant; [and] (4) the availability of less drastic

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alternatives, while the fifth factor – “the public policy
favoring the disposition of cases on their merits” – weighed
against dismissal.

[F&R at 4-5.]

However, the magistrate judge

only found that one factor – the need to manage the court’s
docket – weighed “strongly in favor of dismissal.”

[Id. at 4.]

As noted above, generally, at least three factors must weigh
“strongly” in favor of dismissal for dismissal with prejudice to
be appropriate.

See Dreith, 648 F.3d at 788.

In addition, based

on its independent review of the record in this case, this Court
CONCLUDES that there are insufficient grounds to support
dismissal with prejudice.
This Court therefore MODIFIES the F&R insofar as this
Court ORDERS that the dismissal of the instant case is WITHOUT
PREJUDICE to the filing of a new case.
CONCLUSION
On the basis of the foregoing, Plaintiff’s objections,
filed May 3, 2017, are HEREBY DENIED.

Further, the magistrate

judge’s Findings and Recommendation to Dismiss Case for Failure
to Prosecute, filed April 24, 2017, is HEREBY ADOPTED AS
MODIFIED.

The F&R is ADOPTED insofar as Plaintiff’s Complaint,

filed June 29, 2016, is HEREBY DISMISSED, and the F&R is MODIFIED
insofar as the dismissal of the Complaint is WITHOUT PREJUDICE to
the filing of a new case.

In other words, Plaintiff does not

have leave to file an amended complaint in the instant case.

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This Court therefore DIRECTS the Clerk’s Office to close the
instant case on June 2, 2017, unless a motion for reconsideration
of the instant Order is filed by May 30, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 12, 2017.

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

JOHN DOE VS. UNKNOWN OFFICERS OF THE HONOLULU POLICE DEPARTMENT
ET AL; CIVIL 16-00359 LEK-KJM; ORDER DENYING PLAINTIFF’S
OBJECTIONS AND ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO
PROSECUTE

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