Vicente v. Takayama et al

Filing 9

ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 11/7/2016. - The Court DISMISSES this action without prejudice and directs the Clerk of Court to close this case. (ecs, )CERTIFIC ATE 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

DWIGHT J. VICENTE,

CV 16-00497 DKW-RLP

Plaintiff,

ORDER DISMISSING CASE

vs.
LINDA CHU TAKAYAMA,
DIRECTOR OF LABOR AND
INDUSTRIAL RELATIONS, et al.,
Defendants.

ORDER DISMISSING CASE
On October 3, 2016, Plaintiff Dwight J. Vicente, proceeding pro se, filed a
First Amended Complaint against state employees of the Department of Labor and
Industrial Relations Disability Compensation Division, a worker’s compensation
benefits insurer, a healthcare provider, the Governor of the State of Hawaii, and the
United States Congress, alleging violations of federal law pursuant to 42 U.S.C.
§ 1983. The First Amended Complaint suffered from the same deficiencies as
Vicente’s initial Complaint, as identified in the Court’s September 12, 2016 Order
granting his in forma pauperis (“IFP”) Application and dismissing the Complaint
with leave to amend. Dkt. No. 6. In an October 4, 2016 Order, the Court
dismissed the First Amended Complaint pursuant to 28 U.S.C. § 1915(e) and again

granted Vicente leave to file an amended complaint by no later than October 31,
2016. Dkt. No. 8. Vicente has yet to file a Second Amended Complaint or
respond to the Court’s October 4, 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)).

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Upon careful consideration of these factors, the Court concludes that
dismissal is warranted under the circumstances. The Court’s October 4, 2016
Order was clear:
The amended complaint must designate that it is the “Second
Amended Complaint” and may not incorporate any part of the
original Complaint or First Amended Complaint. Rather, any
specific allegations must be retyped or rewritten in their
entirety. Failure to file an amended complaint by October 31,
2016 will result in automatic dismissal of this action without
prejudice.
****
Based on the foregoing, the Court DISMISSES the First
Amended Complaint with leave to amend once more. If
Vicente decides to proceed with this action, he must file an
amended complaint addressing the deficiencies identified above
no later than October 31, 2016. Vicente is STRONGLY
CAUTIONED that failure to file an amended complaint
addressing the deficiencies identified by this order by October
31, 2016 will result in the automatic dismissal of this action
without prejudice.
10/4/16 Order at 18-19 (Dkt. No. 8).
Vicente’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.

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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). Vicente offers no excuse or explanation for his failure to file a
Second 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).
Vicente failed to discharge the responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior orders. See Dkt. Nos. 6 and
8. Under these circumstances, the public policy favoring the resolution of disputes
on the merits does not outweigh Vicente’s failure to file an amended complaint, as
directed by the Court in its October 4, 2016 Order.
The Court attempted to avoid outright dismissal of this action by granting
Vicente two opportunities 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
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finally dismissing a case, but must explore possible and meaningful alternatives.”).
Alternatives to dismissal are not adequate here, given Vicente’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.
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: November 7, 2016 at Honolulu, Hawai‘i.

Vicente v. Takayama et al.; CV 16-00497 DKW-RLP; ORDER DISMISSING
CASE

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