Slavick v. Lalotoa et al
DISMISSAL ORDER. Signed by JUDGE DERRICK K. WATSON on 2/23/2017. -- This action is DISMISSED with prejudice for Plaintiff's failure to amend to state a cognizable claim. See In re Phenylpropanolamine (PPA) Cases, 460 F.3d 1217, 1226 (9th Cir. 2006). This dismissal shall count as a strike under 28 U.S.C. §1915(g), unless it is overturned on appeal. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015). The Clerk is DIRECTED to enter judgment and terminate 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 (Chris Slavick) 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
CHRIS SLAVICK, #A07658819,
JOHN LALATOA, HALAWA CORR. )
CIV. NO. 16-00601 DKW/RLP
On November 23, 2016, the Court dismissed Plaintiff’s Complaint for
failure to state a claim. Order, ECF No. 5. Plaintiff was given leave to amend to
cure the Complaint’s deficiencies on or before December 30, 2016. Although this
deadline was extended to February 7, 2017 at Plaintiff’s request (ECF No. 8), no
amendment or further response to the Court’s orders has been filed. Because
Plaintiff has not filed an amended complaint, it appears he is unable to do so in a
manner that would address the deficiencies identified by the Court. See Knapp v.
Hogan, 738 F.3d 1106, 1110 (9th Cir. 2015).
The Court has discretion to dismiss Plaintiff’s claims with prejudice for his
failure to file an amended complaint that complies with the Order to amend. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding plaintiff’s
failure to comply with minute order to file amended complaint gave district court
discretion to dismiss case under Fed. R. Civ. P. 41(b)).1
The Ninth Circuit has identified five factors that a district court must
consider before dismissing a case:
(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 other
party; (4) the public policy favoring the disposition of cases on their
merits; and (5) the availability of less drastic sanctions.
Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011); Ferdik v. Bonzelet,
963 F.2d 1258, 1260 (9th Cir. 1992). Here, the public interest in the expeditious
resolution of this litigation, the Court’s interest in managing its docket, the noted
lack of merit of Plaintiff’s claims, and the lack of prejudice to the unserved
Defendants strongly weigh in favor of dismissal. Plaintiff has already been
afforded the opportunity to amend his claims, following guidance provided by the
Court, and was given an extension of time in which to do so. Alternatives less
drastic than dismissal have therefore been considered and provided without
Fed. R. Civ. P. 41(b) states, in pertinent part: “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.”
success, and the Court declines to create further ones that would, at this stage,
appear to be futile.
This action is DISMISSED with prejudice for Plaintiff’s failure to amend to
state a cognizable claim. See In re Phenylpropanolamine (PPA) Cases, 460 F.3d
1217, 1226 (9th Cir. 2006). This dismissal shall count as a strike under 28 U.S.C.
§1915(g), unless it is overturned on appeal. See Coleman v. Tollefson, 135 S. Ct.
1759, 1763 (2015). The Clerk is DIRECTED to enter judgment and terminate this
IT IS SO ORDERED.
DATED: February 23, 2017 at Honolulu, Hawai’i.
Chris Slavick v. John Lalatoa, et al; Civil No. 16-00601 DKW-RLP;
Slavick v. Lalotoa, 1:16-cv-00601-DKW-RLP; Dismissal Order; PSA Defc’y & Dsml Ords
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