Aquino v. Hawaii, State of et al

Filing 16

DISMISSAL ORDER. Signed by JUDGE LESLIE E. KOBAYASHI on 01/08/2018. (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
BRIAN AQUINO,#A5018716,
Plaintiff,
vs.
STATE OF HAWAII, et al.,
Defendants.

) NO. 1:17-cv-00300 LEK-KSC
)
) DISMISSAL ORDER
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On November 13, 2017, the Court dismissed
Plaintiff’s second Amended Complaint pursuant to 28
U.S.C. § 1915(e) for Plaintiff’s failure to state a
claim on which relief can be granted.
15.

Order, ECF No.

The Court granted Plaintiff until December 13,

2017, to file an amended pleading that cured the
pleading’s deficiencies.

Plaintiff has neither filed

an amended complaint nor requested an extension of time
to do so.
action.

It appears that he has abandoned this
See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th

Cir. 2015).
The Court may dismiss Plaintiff’s claims with or
without prejudice for his failure to comply with the
Court’s November 13, 2017 Order.

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 Court

must consider five factors 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 was afforded two opportunities to

1

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.”
2

amend his claims but has failed to do so.

Alternatives

to dismissal have therefore been provided and providing
further opportunities appears 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:

HONOLULU, HAWAII, January 8, 2018.

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

Aquino v. State, et al., 1:17-cv-00300 LEK-RLP; Dfcy Dsml Ords ‘17 Aquino 17-300 (dsm
f. amd, stk)

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