Davies v. Heick et al

Filing 48

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE re 15 , 40 - Signed by JUDGE LESLIE E. KOBAYASHI on 3/24/2021. For the foregoing reasons and having fully considered the five factors indicated above, this action is DIS MISSED WITHOUT PREJUDICE to Plaintiff filing his claims in a new case. Defendants Lana Heck and Francis Sequeira's Motion for Partial Summary Judgment, filed February 9, 2021, is DENIED AS MOOT, and the hearing on the motion, curre ntly scheduled for April 2, 2021 at 10:30 a.m., is VACATED. The Clerk's Office is DIRECTED to close the case immediately. (emt, )COURT'S CERTIFICATE of Service - Tobius Davies served by First Class Mail to his last known address of record listed on the Notice of Electronic Filing (NEF) on March 24, 2021. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
TOBIUS DAVIES,

CIV. NO. 20-00173 LEK-RT
Plaintiff,

vs.
SGT LANA HEICK, OFFICER, OAHU
COMMUNITY CORRECTIONAL CENTER;
CALVERT WILLEAMSON, CASE
MANAGER, OAHU COMMUNITY
CORRECTIONAL CENTER; AND FRANCIS
SEQUEIRA, WARDEN;
Defendants.
ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE
Pro se Plaintiff Tobius Davies (“Plaintiff”) commenced
this civil case on April 17, 2020.

[Prisoner Civil Rights

Complaint, filed 4/17/20 (dkt. no. 1).]

Plaintiff filed a first

amended complaint on May 26, 2020, [dkt. no. 8,] and a second
amended complaint on July 20, 2020, [dkt. no. 15].

On

October 19, 2020, Plaintiff filed a change of address
notification and provided the Clerk’s Office with his new
address.

[Dkt. no. 21.]

On February 5, 2021, Plaintiff failed

to appear at a confidential telephone conference before the
magistrate judge, and had not provided the district court with a
contact telephone number, resulting in a warning from the
magistrate judge that all parties, including pro se litigants,
are required to make their court appearances, and that failing

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to appear could result in dismissal of Plaintiff’s case.
[Minutes, filed 2/5/21 (dkt. no. 39).]
On February 9, 2021, Defendants Lana Heick and Francis
Sequeira (“Defendants”) filed their Motion for Partial Summary
Judgment.

[Dkt. no. 40.]

On February 16, 2021, Plaintiff once

again failed to appear at a telephone conference before the
magistrate judge, and a second warning was issued, stating that
failing to abide by court rules or appear as required could
result in dismissal of his case.
no. 43) (“2/16/21 Warning”).]

[Minutes, filed 2/16/21

(dkt.

It was also noted that nothing in

the record indicated that mail sent to Plaintiff had been
returned to the Clerk’s Office as undeliverable.

[Id.]

On

February 17, 2021, this Court issued a briefing schedule for
Defendants’ Motion for Partial Summary Judgment (“Briefing
Schedule”).

[Minute Order, filed 2/17/21 (dkt. no. 44).]

On

March 1, 2021, the 2/16/21 Warning was returned to the Clerk’s
Office as undeliverable mail.

[Dkt. no. 45.]

On March 5, 2021,

the Briefing Schedule was returned to the Clerk’s Office as
undeliverable Mail.

[Dkt. no. 46.]

Plaintiff did not file a

response to Defendants’ Motion for Partial Summary Judgment.
DISCUSSION
“District courts have inherent power to control their
dockets[,]” and in exercising that power, a court may impose
sanctions including dismissal of an action.
2

Thompson v. Hous.

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Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (per
curiam); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–32,
633 (1962) (recognizing courts’ power to control their dockets,
with or without a motion, and noting that, in appropriate
circumstances, the court may dismiss a complaint for failure to
prosecute without notice or a hearing).

This inherent power is

recognized in Fed. R. Civ. P. 83(b): “A judge may regulate
practice in any manner consistent with federal law, rules
adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s
local rules.”

A court’s power “to regulate litigation before

it” is “broader and more flexible than the authority specified
in Fed. R. Civ. P.

41(b).”

Van Bronkhorst v. Safeco Corp., 529

F.2d 943, 951 (9th Cir. 1976) (some citations omitted) (citing
Link, 370 U.S. 626).
Thus, a court may dismiss an action based on a party’s
failure to prosecute or failure to comply with federal or local
rules of civil procedure.

Hells Canyon Pres. Council v. U.S.

Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts
may dismiss an action sua sponte based on a plaintiff’s failure
to prosecute the case, comply with the Federal Rules of Civil
Procedure, or follow court orders).
The Ninth Circuit has
identified five factors that a district court
must consider before dismissing a case . . . :
(1) the public’s interest in expeditious
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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)
(citations and quotation marks omitted).

“[T]he key factors are

prejudice and availability of lesser sanctions.”

Wanderer v.

Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
While Plaintiff had been active in this case since
filing it nearly a year ago, he has since discontinued his
participation, has not provided a telephone number, and mail
sent to the address he provided has been returned to the
district court as undeliverable.

It appears Plaintiff has

actually received at least one of the warnings that failing to
appear at his scheduled court appearances or otherwise comply
with court rules could result in dismissal of his case.
The Court therefore turns to the five factors that
must be considered prior to dismissal for failure to prosecute.
Plaintiff’s failure to file a response to the Motion for Partial
Summary Judgment or appear at his scheduled conferences inhibit
the Court’s ability to move the case forward, and demonstrate
Plaintiff’s inability or unwillingness to litigate his case.
The delay has not been particularly lengthy.

However, Plaintiff

has not filed anything or appeared in the case since October
2020.

Furthermore, no explanation for the delay has been
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provided, nor has Plaintiff indicated when the delay might end
and the case could resume normal progress.

Because the

indefinite and unexplained delay is an unreasonable burden on
Defendants who have been actively and responsively defending
this action, they are entitled to a presumption of prejudice.
See In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994) (noting
that a rebuttable presumption of prejudice arose in a case where
the unreasonableness of the delay was evidenced by the length).
“[D]ismissal without prejudice is a more easily
justified sanction for failure to prosecute.

A relatively brief

period of delay is sufficient to justify the district court’s
sending a litigant to the back of the line.”
739 F.2d 493, 497 (9th Cir. 1984).

Ash v. Cvetkov,

In light of the instant

delay, dismissal with prejudice would be unduly harsh, therefore
dismissal is without prejudice.

That is, Plaintiff is permitted

to refile his claims in a new case.

Consequently, even assuming

the fourth factor, the policy in favor of reaching the merits,
weighs in favor of not dismissing the case, the fifth factor
weighs in favor of dismissal, because Plaintiff’s failure to
appear at his conferences or file a response to the Motion for
Partial Summary Judgment demonstrate that no less-drastic
sanctions are available, especially as mitigated by the fact
that dismissal is without prejudice.

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In sum, although the delay is not outrageous, the
Clerk’s Office’s inability reach Plaintiff by mail or telephone,
his failure to appear at two consecutive conferences, and his
failure to file a response to the Motion for Partial Summary
Judgment all demonstrate that the policy favoring disposition of
cases on their merits is outweighed by the factors in favor of
dismissal.

Therefore, this action is dismissed without

prejudice.
Because the case is dismissed for failure to
prosecute, Defendants’ Motion for Partial Summary Judgment is
denied as moot.
CONCLUSION
For the foregoing reasons and having fully considered
the five factors indicated above, this action is DISMISSED
WITHOUT PREJUDICE to Plaintiff filing his claims in a new case.
Defendants Lana Heck and Francis Sequeira’s Motion for Partial
Summary Judgment, filed February 9, 2021, is DENIED AS MOOT, and
the hearing on the motion, currently scheduled for April 2, 2021
at 10:30 a.m., is VACATED.

The Clerk’s Office is DIRECTED to

close the case immediately.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, March 24, 2021.

TOBIUS DAVIES VS. SGT LANA HEICK, ET AL; CV 20-00173 LEK-RT;
ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE

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