Ah Cheung v. State of Hawaii et al
DISMISSAL ORDER re 9 - Signed by JUDGE DERRICK K. WATSON on 9/19/2017. "This action is DISMISSED with prejudice for Plaintiff's failure to amend his pleadings to state a cognizable claim. See In re Phenylpropanolamine (PP A) 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." (emt, )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). Vise Ah Cheung, Jr. served by first class mail to the address of record on September 19, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VISE AH CHEUNG JR., #A1029843, )
STATE OF HAWAII, et al.,
CIV. NO. 17-00257 DKW-KSC
Plaintiff was released from the Oahu Community Correctional Center on or
about July 12, 2017. See Pl. Notice, ECF No. 10. After his release, the Court
dismissed Plaintiff’s First Amended Complaint and directed him to file an
amended pleading that cured its deficiencies on or before September 8, 2017.
Order, ECF No. 11 (filed August 8, 2017). This Order was sent to Plaintiff’s new
Because Plaintiff has neither filed an amended complaint nor requested an
extension of the deadline, it appears that he is unable to amend his pleadings in a
manner that would address their deficiencies and has abandoned this action. See
Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2015).
The Court may dismiss Plaintiff’s claims with prejudice for his failure to file
an amended complaint that complies with the August 8, 2017 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 identifies five factors that a 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).
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
of this action. Plaintiff has already been afforded an opportunity to amend his
claims, following guidance provided by the Court, and was unable to do so. See
Order Dismissing Complaint, ECF No. 8 (filed June 27, 2017); Am. Comp., ECF
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.”
No. 9. Alternatives have therefore been provided without success, and the Court
declines to provide further opportunities that appear futile.
This action is DISMISSED with prejudice for Plaintiff’s failure to amend his
pleadings 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.
IT IS SO ORDERED.
DATED: September 19, 2017 at Honolulu, Hawai’i.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
Vise Ah Cheung, Jr. v. State, et al; Civil No. 17-0025701 DKW-KSC;
Ah Cheung v. State, 1:17-cv-00257 DKW-KSC; Dismissal Order; PSA Defc’y & Dsml Ords
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