Hunt v. State of Florida Correctional Facility et al

Filing 25

ORDER DISMISSING CASE - Signed by JUDGE DERRICK K. WATSON on 5/21/2018. 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

CIVIL NO. 18-00003 DKW-KJM

PATRICIA HUNT,
Plaintiff,

ORDER DISMISSING CASE

vs.
STATE OF FLORIDA
CORRECTIONAL FACILITY, et al.,
Defendants.

INTRODUCTION
On March 19, 2018, Plaintiff Patricia Hunt, proceeding pro se, filed a Second
Amended Complaint (“SAC”), attempting to assert federal civil rights claims
against several Florida state government employees and private individuals. Dkt.
No. 14.1 In a March 27, 2018 Order, the Court dismissed the SAC with limited
leave to amend, and denied as moot Hunt’s (1) Motion to Compel for Discovery and

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In a January 9, 2018 Order, the Court granted Hunt’s Application to proceed in forma pauperis
(“IFP Application”) and dismissed her First Amended Complaint with limited leave to amend.
Dkt. No. 9 (1/9/18 Order). The Court noted that, although she is proceeding pro se, Hunt is more
than familiar with her federal court filing and pleading responsibilities, given her numerous prior
actions. The Court takes judicial notice of Hunt’s record of federal filings in districts nationwide,
including in this district. See, e.g., Hunt v. Ross Dress For Less, LLC, et al., No. 14-00081
LEK-RLP (D. Haw.); Hunt v. Ross Dress For Less, LLC, et al., No. 15-00081 LEK-KSC (D.
Haw.); Hunt v. Key Bank, USA, No. 2:09-CV-14093 (S.D. Fla.); Hunt v. Metz, No. 2:12-CV-14461
(S.D. Fla.); Hunt v. ACCSCT in Virginia, et al., No. 2:12-CV-14460 (S.D. Fla.); Hunt v. Key Bank
Int’l, et al., No. 2:10-CV-14111 (S.D. Fla.).

Public Records 5 U.S.C. 552, Dkt. No. 15; (2) Request for Production of
Documents, Dkt. No. 16; and (3) Motion to Compel for Immediate Numerous Public
Records Request, Dkt. No. 17, pending the filing of an amended complaint. Dkt.
No. 20 (3/27/18 Order). The 3/27/18 Order granted Hunt until April 30, 2018 to
file an amended complaint. On May 1, 2018, the Court granted Hunt’s request for a
fifteen-day extension of time, Dkt. No. 22, and extended the deadline for filing her
Third Amended Complaint to May 16, 2018, cautioning her that “no further
extensions will be granted absent good cause shown.” Dkt. No. 23. Despite the
extension of time, Hunt has yet to file an amended complaint or respond to the
Court’s March 27 and May 1, 2018 Orders in any other fashion. 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 her to file an
amended pleading within a specified time period. Pagtalunan v. Galaza, 291 F.3d
639, 640 (9th Cir. 2002). Before dismissing an action for failure to prosecute, the

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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 3/27/18 Order was clear:
The dismissal of portions of the SAC is without prejudice, and
Hunt is granted leave to amend, one final time, to attempt to cure
the deficiencies identified above.
Plaintiff’s claims for
violation of the federal criminal code and all claims against
immune defendants are DISMISSED WITH PREJUDICE. The
Court cautions Hunt that she may not re-allege these claims in
any amended complaint.
****
The amended complaint must designate that it is the “Third
Amended Complaint” and may not incorporate any part of the
prior complaints. Rather, any specific allegations must be
retyped or rewritten in their entirety. Hunt may include only
one claim per count. Failure to file an amended complaint by
April 30, 2018 will result in the automatic dismissal of this
action without prejudice.
Based upon the foregoing, Hunt’s Second Amended Complaint
is DISMISSED with limited leave to amend. Dkt. No. 14. The
Court also DENIES all pending motions and/or requests seeking
to compel discovery, as there is no operative complaint in this
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case at this time. Dkt. Nos. 15–17.
Hunt is granted one final opportunity to file an amended
complaint in accordance with the terms of this Order by April
30, 2018. To be clear, claims dismissed with prejudice may not
be re-alleged in an amended complaint. The Court CAUTIONS
Hunt that failure to file an amended complaint by April 30, 2018
will result in the automatic dismissal of this action without
prejudice.
3/27/18 Order at 14, 16–17. On May 1, 2018, the Court granted Hunt’s request and
extended the deadline for filing her Third Amended Complaint to May 16, 2018.
“The Court caution[ed] Hunt that no further extensions will be granted absent good
cause shown.” 5/1/18 Entering Order, Dkt. No. 23. Hunt’s failure to comply with
the 3/27/18 Order and the 5/1/18 Entering Order hinders the Court’s ability to move
this case forward and indicates that she 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). Hunt offers no excuse or explanation for her failure to file a Third
Amended Complaint, despite the extension of time granted by the Court. When a
party offers a poor excuse (or, in this case, no excuse) for failing to comply with a

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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.
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).
Hunt failed to discharge her responsibility to prosecute this action despite the
Court’s express warnings about dismissal in its prior order. See 3/27/18 Order at
16–17. Under these circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh Hunt’s failure to file an amended
complaint, as directed by the Court in its 3/27/18 Order and 5/1/18 Entering Order.
The Court attempted to avoid outright dismissal of this action by twice
granting Hunt the opportunity to amend her 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 not adequate here, given Hunt’s
voluntary failure to comply with the Court’s Orders. Under the present
circumstances, less drastic alternatives are not appropriate. The Court

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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.
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: May 21, 2018 at Honolulu, Hawai‘i.

Hunt v. State of Florida Correctional Facility, et al.; Civil No. 18-00003 DKW-KJM; ORDER
DISMISSING CASE

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