Kinsey v. Reider et al

Filing 9

ORDER DISMISSING COMPLAINT FOR FAILURE TO OBEY A COURT ORDER - The court certifies any appeal of this dismissal would not be taken in good faith. Signed by Judge Rosanna Malouf Peterson. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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GIOVANNI SHEA KINSEY,
NO: 4:17-CV-5018-RMP
Plaintiff,

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v.

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ORDER DISMISSING COMPLAINT
FOR FAILURE TO OBEY A COURT
ORDER

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FREDRICK REIDER, JEREMY
JANSKI, JIM RAYMOND,
STEPHEN SULTEMEIER,
EDUARDO MADRIGAL and RICK
LONG,

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Defendant.

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By Order filed April 13, 2017, the Court advised Plaintiff of the deficiencies

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of his complaint and directed him to amend or voluntarily dismiss within sixty (60)

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days. Plaintiff, a prisoner at the Benton County Jail, is proceeding pro se and in

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forma pauperis. He did not comply with the Court’s Order and has filed nothing

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further in this action.

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//

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//
ORDER DISMISSING COMPLAINT FOR FAILURE TO OBEY A COURT
ORDER -- 1

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DISMISSAL FOR FAILURE TO OBEY A COURT ORDER
“Pursuant to Federal Rule of Civil Procedure 41 (b), the district court may

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dismiss an action for failure to comply with any order of the court.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), cert. denied, 506 U.S. 915 (1992).

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The district court should consider five factors when deciding whether to dismiss a

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case for failure to obey a court order:

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(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 defendants;
(4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic alternatives.

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Ferdik, 963 F.2d at 1260-61 (Citations omitted).
The first two factors weigh in favor of dismissal. The need to manage the

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docket and the public’s interests are served by a quick resolution of civil rights

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litigation. The third factor also favors dismissal. Defendants will not be

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prejudiced if the claims are dismissed because the defendants have not yet been

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served. Only the fourth factor arguably weighs against dismissal. However,

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Plaintiff did not present a legally sufficient complaint. As for the fifth factor, the

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only less drastic alternative would be to allow Plaintiff yet more time to amend his

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complaint. Plaintiff, however, has already had two months in which to file an

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amended complaint; and failed to do so. Allowing a further extension would

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frustrate the purpose of the first two factors; therefore, the fifth factor favors

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dismissal. On balance, the four factors that favor dismissal outweigh the one that
ORDER DISMISSING COMPLAINT FOR FAILURE TO OBEY A COURT
ORDER -- 2

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does not. Ferdik, 963 F.2d at 1263 (citing, Malone v. United States Postal Serv,

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833 F.2d 128, 133 n.2 (9th Cir. 1987) (four factors heavily supporting dismissal

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outweigh one against dismissal), cert. denied, 488 U.S. 819 (1988)). Accordingly,

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IT IS ORDERED that Plaintiff’s complaint, ECF No. 7, is DISMISSED

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WITHOUT PREJUDICE.

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IT IS SO ORDERED. The Clerk of Court is directed to enter this Order,

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enter judgment, forward a copy to Plaintiff, and close the file. The Court certifies

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any appeal of this dismissal would not be taken in good faith.

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DATED July 24, 2017.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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ORDER DISMISSING COMPLAINT FOR FAILURE TO OBEY A COURT
ORDER -- 3