Tia v. Honolulu Police Dept. et al

Filing 11

ORDER DISMISSING CASE re 1 - Signed by JUDGE DERRICK K. WATSON on 3/6/2018. "On the basis of the foregoing, the Court DISMISSES this action without prejudice and directs the Clerk of Court to close this case." (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

PETER R. TIA,
Plaintiff,

CIVIL NO. 17-00607 DKW-KJM
ORDER DISMISSING CASE

vs.
HONOLULU POLICE
DEPARTMENT, et al.,
Defendants.

INTRODUCTION
On December 26, 2017, Plaintiff Peter R. Tia, proceeding pro se, filed a
Complaint against several federal, state, and municipal entities and private
individuals alleging violations of his federal civil rights.1 Dkt. No. 1. On
December 27, 2017, the district court issued a deficiency order directing Tia to either
pay the applicable filing fee or to submit a completed in forma pauperis application
within twenty-eight days. Dkt. No. 4. On January 24, 2018, Tia filed an
application to proceed in forma pauperis (“IFP Application”), and on February 2,

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Defendants include the Honolulu Police Department (“HPD”), Federal Bureau of Investigation
(“FBI”), “Tennessee FBI,” “Los Angeles, CA FBI,” FBI Agent Rachel Bird, Bishop Hans Ta‘ala
of Halawa Correctional Facility (“HCF”) Clergy, “Unknown Mormons,” “Unknown Whites at
YMCA Nuuanu,” “Hackers,” “Govt. FBI Hackers Does 1-10,” “All Defendants from USDC Hon.
Case # CV 17-00523 RLP,” “Plaintiff’s Family Members Does 1-10,”and “Any Others Per
Investigations Pursuant to Law.”

2018, he filed a Motion for Appointment of Counsel. Dkt. Nos. 5 and 6. In a
February 7, 2018 Order, the Court granted the IFP Application, dismissed the
Complaint with leave to amend, and denied without prejudice the Motion for
Appointment of Counsel, pending the filing of an amended complaint. Dkt. No. 7
(2/7/18 Order). The 2/7/18 Order granted Tia until March 2, 2018 to file an
amended complaint in order to cure the deficiencies identified in the original
Complaint. Tia has yet to file an amended complaint or respond to the Court’s
2/7/18 Order in any other fashion.2 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.”). More specifically, 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

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On March 2, 2018, Tia filed a Notice of Change of Address, in person with the Clerk’s Office,
which provided a cellular telephone number and requested that the Clerk’s Office contact him
when documents are available for pick up. See Dkt. No. 10 (3/2/18 Notice of Change of
Address). Tia’s March 2 filing, however, did not address the 2/7/18 Order.
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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)). Upon careful
consideration of these factors, the Court concludes that dismissal without prejudice
is warranted under the circumstances.
The Court’s 2/7/18 Order was clear:
Because Tia fails to state a claim for relief, the Complaint is
DISMISSED with limited leave to amend pursuant to 28 U.S.C.
§ 1915(e), with instructions below.
The Motion for
Appointment Counsel is denied without prejudice, pending the
filing of an amended complaint.
****
In sum, because Tia fails to state a plausible claim for relief, the
Complaint is DISMISSED. Because amendment of some
claims may be possible, Tia is granted leave to attempt to cure
the deficiencies noted in this Order, with instructions below.
****
The dismissal is without prejudice, and Tia is granted limited
leave to amend to attempt to cure the deficiencies identified
above. If Tia chooses to file an amended complaint, he must
write short, plain statements telling the Court: (1) the specific
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basis of this Court’s jurisdiction; (2) the constitutional or
statutory right Plaintiff believes was violated; (3) the name of the
defendant who violated that right; (4) exactly what that
defendant did or failed to do; (5) how the action or inaction of
that defendant is connected to the violation of Plaintiff’s rights;
and (6) what specific injury Plaintiff suffered because of that
defendant’s conduct. Plaintiff must repeat this process for each
person or entity that he names as a defendant. If Tia fails to
affirmatively link the conduct of each named defendant with the
specific injury he suffered, the allegation against that defendant
will be dismissed for failure to state a claim.
An amended complaint generally supersedes a prior complaint,
and must be complete in itself without reference to the prior
superseded pleading. King v. Atiyeh, 814 F.2d 565, 567 (9th
Cir. 1987), overruled in part by Lacey v. Maricopa Cty., 693
F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without
prejudice that are not re-alleged in an amended complaint may
be deemed voluntarily dismissed. See Lacey, 693 F.3d at 928
(stating that claims dismissed with prejudice need not be
realleged in an amended complaint to preserve them for appeal,
but claims that are voluntarily dismissed are considered waived
if they are not re-pled).
The amended complaint must designate that it is the “First
Amended Complaint” and may not incorporate any part of the
prior complaints. Rather, any specific allegations must be
retyped or rewritten in their entirety. Tia may include only one
claim per count. Failure to file an amended complaint by
March 2, 2018 will result in the automatic dismissal of this
action without prejudice.
****
Based upon the foregoing, Tia’s IFP Application is GRANTED
(Dkt. No. 5), the Motion for Appointment of Counsel is
DENIED WITHOUT PREJUDICE (Dkt. No. 6), and the
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Complaint is DISMISSED with limited leave to amend (Dkt. No.
1).
Tia is granted limited leave to file an amended complaint in
accordance with the terms of this Order by March 2, 2018. The
Court CAUTIONS Tia that failure to file an amended complaint
by March 2, 2018 will result in the automatic dismissal of this
action without prejudice.
2/7/18 Order at 2, 12, 14–16.
Tia’s failure to comply with the 2/7/18 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.
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). Tia offers no excuse or explanation for his failure to file a First 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.

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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).
Tia failed to discharge his responsibility to prosecute this action despite the Court’s
express warnings about dismissal in its prior order. See 2/7/18 Order at 14–16.
Under these circumstances, the public policy favoring the resolution of disputes on
the merits does not outweigh Tia’s failure to file an amended complaint, as directed
by the Court in its 2/7/18 Order.
The Court attempted to avoid outright dismissal of this action by granting Tia
the opportunity 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 finally
dismissing a case, but must explore possible and meaningful alternatives.”).
Alternatives to dismissal are no longer adequate here, given Tia’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.
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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: March 6, 2018 at Honolulu, Hawai‘i.

Tia v. Honolulu Police Dep’t et al. CV NO. 17-00607 DKW-KJM; ORDER DISMISSING
CASE

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