Hamilton v. State of Hawaii
ORDER DISMISSING CASE AND DENYING (1) MOTION FOR APPOINTMENT OF COUNSEL, (2) MOTION TO PROCEED WITHOUT PAYMENT OF FEES, (3) MOTION TO EXPEDITE APPEAL, AND (4) REQUEST FOR CERTIFICATE OF APPEALABILITY re: 14 . Signed by U.S. DISTRICT JUDG E DERRICK K. WATSON on 8/15/2016. (afc)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). A copy of the instant Order and a copy of Appellate Form 4 - Affidavit Accompanying Motion for Permission to Appeal IN Forma Pauperis has been served this date by first class mail addressed to Colleen Michele Hamilton at her address of record.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
COLLEEN MICHELE HAMILTON,
STATE OF HAWAII,
CIVIL NO. 16-00371 DKW-KJM
ORDER DISMISSING CASE AND
DENYING (1) MOTION FOR
APPOINTMENT OF COUNSEL,
(2) MOTION TO PROCEED
WITHOUT PAYMENT OF FEES,
(3) MOTION TO EXPEDITE APPEAL,
AND (4) REQUEST FOR
CERTIFICATE OF APPEALABILITY
ORDER DISMISSING CASE AND DENYING (1) MOTION FOR
APPOINTMENT OF COUNSEL, (2) MOTION TO PROCEED WITHOUT
PAYMENT OF FEES, (3) MOTION TO EXPEDITE APPEAL,
AND (4) REQUEST FOR CERTIFICATE OF APPEALABILITY
On July 1, 2016, Plaintiff Colleen Michele Hamilton, proceeding pro se, filed
this civil action against the State of Hawaii alleging that her federal rights were
violated in Hawaii state court proceedings. The complaint was not accompanied by
a filing fee or an application to proceed in forma pauperis (“IFP”). On July 5, 2016,
the Court ordered Hamilton to either pay the statutory filing fee or submit a
completed IFP application, and cautioned her that the failure to comply with the
Court’s order would result in the automatic dismissal of this action. Hamilton did
not comply. Instead, she filed (1) a series of procedural motions that have each
been denied, and (2) a premature notice of appeal. Accordingly, this action is
dismissed for failure to comply with the Court’s prior order.
Moreover, because she is not entitled to the relief she seeks, the Court denies
Hamilton’s motion seeking the appointment of counsel and a certificate of
appealability, to expedite her appeal, and to proceed without prepayment of fees on
appeal. Dkt. No. 14.1
The Case Is Dismissed
The Court first addresses Hamilton’s failure to comply with the Court’s July
5, 2016 Deficiency Order. See Dkt. No. 3. The Court specifically advised
Hamilton that this case would be automatically dismissed if she failed to either pay
the required filing fee or submit a completed IFP application within 30 days. See
Dkt. No. 3. The Court explained the statutory filing requirements as follows:
Parties instituting a civil action, suit or proceeding in a United
States District Court, other than a writ of habeas corpus, must
pay a filing fee of $350.00 and an administrative fee of $50.00.
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a
hearing. The Court continues to liberally construe Hamilton’s pleadings. See Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987).
See 28 U.S.C. § 1914(a) and District Court Miscellaneous Fee
Schedule, ¶ 14 (effective December 1, 2013). This
administrative fee does not apply to applications for writ of
habeas corpus or to persons who are granted in forma pauperis
status under 28 U.S.C. § 1915. An action may only proceed
without concurrent payment of the filing fee if the party is
granted leave to proceed in forma pauperis (“IFP”). 28 U.S.C.
§ 1915(a); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
Dkt. No. 3.
The Court cautioned Hamilton that the failure to submit the required fee or a
completed IFP application “will result in AUTOMATIC DISMISSAL of this action
for failure to prosecute or otherwise follow a court order. See Fed. R. Civ. P. 41(b);
Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995)(stating that the district court
may dismiss a complaint for failure to pay partial filing fee); In re Perroton, 958
F.2d 889, 890 (9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for
failure to pay required filing fees).” Id. The Deficiency Order clearly repeated
these instructions to Hamilton:
Plaintiff is GRANTED thirty days to either pay the $400.00
filing fee or submit a completed and executed application to
proceed in forma pauperis on the forms provided by the court
with this Order. The application must bear the docket number
assigned to this case. Failure to timely file an in forma pauperis
application or the statutory filing fee within thirty days of the
date of this Order will result in AUTOMATIC DISMISSAL of
Dkt. No. 3.
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.”). 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)).
Upon careful consideration of these factors, the Court concludes that
dismissal is warranted under the circumstances in light of (1) Hamilton’s failure to
either pay the statutory filing fee or submit an IFP application, and (2) her election to
file a notice of appeal. The Court attempted to avoid outright dismissal of this
action by instructing Hamilton of the deficiencies in her filing. 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 Hamilton’s voluntary failure to comply with the Court’s clear order, and
election to take her case elsewhere. 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.
Accordingly, this action is dismissed for failure to comply with the Court’s
Hamilton’s Motion for Miscellaneous Relief Is Denied Without Prejudice
On August 10, 2016, Hamilton filed a motion seeking the following relief: the
appointment of counsel, a certificate of appealability (“COA”), to expedite her
appeal, and to proceed without prepayment of fees on appeal. The Court addresses
each of these requests below.
Motion for Appointment of Counsel
Hamilton states that she “needs an attorney to assist with the criminal
appeal and with the civil appeal she is serving as she may have filed in the
wrong court in Hawaii and needed a direct appeal.” Motion at 2. With
respect to the present matter, Hamilton’s request is denied as moot insofar as
the Court has dismissed her complaint. Hamilton may renew her request to
the Ninth Circuit to the extent she seeks the appointment of counsel on appeal.
Certificate of Appealability
Hamilton requests a certificate of appealability pursuant to Ninth
Circuit Rule 22-1. Hamilton has already filed a notice of appeal that will
become effective upon the entry of judgment in the instant matter – she does
not need, nor is she entitled to, a COA pursuant to Federal Rule of Appellate
Procedure 22 or Ninth Circuit Rule 22-1 because the instant case does not
seek a writ of habeas corpus. See Fed. R. App. P. 22(b)(1) (“In a habeas
corpus proceeding in which the detention complained of arises from process
issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant
cannot take an appeal unless a circuit justice or a circuit or district judge issues
a certificate of appealability under 28 U.S.C. § 2253(c).”). Accordingly, the
request for a COA is denied.
Motion to Expedite Appeal
This district court is without the authority to grant Hamilton’s request
to expedite her appeal, and accordingly, the motion is denied. See Porras v.
Curry, 2011 WL 441230, at *1 (N.D. Cal. Feb. 2, 2011) (Explaining that a
district court cannot “expedite the Ninth Circuit’s rulings.”). Hamilton’s
motion to expedite appeal should instead be filed with the Ninth Circuit Court
Motion to Proceed Without Payment of Fees
Hamilton asserts that her “motion to proceed without payment of fees is
prepared through form 4 attached to the 9th circuit court documents as proof
of the plaintiff’s poverty level at this time.” Motion at 2. Although
Hamilton references the correct Ninth Circuit form and has filed her motion
with the district court as required by Federal Rule of Appellate Procedure
24(a), she does not include with her motion an actual completed copy of Form
4 (or the information required by the form) or attest to the truth of her
The Court provides the following guidance to Hamilton so that she may
resubmit her motion to proceed without payment of fees if she so chooses. To
proceed in forma pauperis on appeal, Hamilton must comply with Federal Rule of
Appellate Procedure 24(a)(1), which provides:
Except as stated in Rule 24(a)(3), a party to a district-court action
who desires to appeal in forma pauperis must file a motion in the
district court. The party must attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the
Appendix of Forms the party’s inability to pay or to give
security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on
Fed. R. App. P. 24(a)(1).
Hamilton’s current motion does not satisfy the requirements of the rule
because she has neither utilized Form 4, nor provided the detail prescribed by the
form to demonstrate her inability to give security for fees and costs. Although her
motion references Form 4, it is not included in her filing. The Court is therefore
unable to adequately assess her ability to pay the requisite fees. Moreover,
Hamilton neither claims an entitlement to redress nor states the issues she intends to
present on appeal.
Accordingly, in light of Hamilton’s failure to meet the requirements of Fed.
R. App. P. 24(a)(1), the Court DENIES WITHOUT PREJUDICE the motion to
proceed without prepayment of fees.
The Court hereby notifies Hamilton that an electronic version of Form 4 is
available on the Ninth Circuit’s website: http://www.ca9.uscourts.gov/forms.
The Clerk of Court is directed to send Hamilton an appropriate copy of the Appellate
Form 4 Affidavit Accompanying Motion for Permission to Appeal In Forma
On the basis of the foregoing, the Court DISMISSES this action and directs
the Clerk of Court to close this case. Hamilton’s motion seeking miscellaneous
forms of relief is DENIED. Dkt. No. 14.
The Court directs the Clerk of Court to send to Hamilton an appropriate copy
of the Appellate Form 4 Affidavit Accompanying Motion for Permission to Appeal
In Forma Pauperis.
IT IS SO ORDERED.
Dated: August 15, 2016 at Honolulu, Hawai‘i.
Hamilton v. State of Hawaii; Civil No. 16-00371 DKW KJM; ORDER
DISMISSING CASE AND DENYING (1) MOTION FOR APPOINTMENT OF
COUNSEL, (2) MOTION TO PROCEED WITHOUT PAYMENT OF FEES,
(3) MOTION TO EXPEDITE APPEAL, AND (4) REQUEST FOR CERTIFICATE
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