Kealoha v. Cabrera et al

Filing 5

DISMISSAL ORDER re 1 - Signed by JUDGE HELEN GILLMOR on 2/9/2018. "(1) This action is DISMISSED with prejudice for Plaintiff's failure to amend his pleadings to state a cognizable claim. (2) This dismissal shal l count as a strike under 28 U.S.C. §1915(g), unless it is overturned on appeal. (3) The Clerk is DIRECTED to enter judgment and terminate this case." (emt, )CERTIFICATE OF SERVICEPart icipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Kristopher Kealoha served by first class mail to the address of record on February 12, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KRISTOPHER KEALOHA,
#A0265817,
Plaintiff,
vs.
ELIZABETH CABRERA, CATHY
KRUEGER, WESLEY MUN, JOHN
FRAUENS, DOES 1 - 150,
Defendants.

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) NO. 1:17 - cv - 00570 HG - KSC
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) DISMISSAL ORDER
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DISMISSAL ORDER
On December 11, 2017, the Court dismissed
Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)
& 1915A(a), for failure to state a claim on which
relief can be granted.

Order, ECF No. 4.

The Court

granted Plaintiff until January 15, 2018, to file an
amended pleading that cured the noted deficiencies in
his claims.

Plaintiff has neither filed an amended

complaint nor requested an extension of time to do so.

1

It appears that he has abandoned this action.

See

Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013).
The Court may dismiss Plaintiff’s claims with or
without prejudice for his failure to comply with the
Court’s December 11, 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).

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

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 an ample opportunity to

amend his claims but has not.

Providing Plaintiff

additional time to amend, particularly in light of his
claims deficiencies, 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);
Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017)
(holding that “when (1) a district court dismisses a
complaint on the ground that it fails to state a claim,
(2) the court grants leave to amend, and (3) the

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plaintiff then fails to file an amended complaint, the
dismissal counts as a strike under § 1915(g).”).

CONCLUSION
(1) This action is DISMISSED with prejudice for
Plaintiff’s failure to amend his pleadings to state a
cognizable claim.
(2) This dismissal shall count as a strike under 28
U.S.C. §1915(g), unless it is overturned on appeal.
(3) The Clerk is DIRECTED to enter judgment and
terminate this case.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, February 9, 2018.

Kristopher Kealoha, #A0265817 v. Elizabeth Cabrera,
Cathy Krueger, Wesley Mun, John Frauens, Does 1 - 150;
17 - cv - 00570 HG - KSC; DISMISSAL ORDER
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