Ballesteros v. Bothelo
| Daverson Ballesteros |
| Russel Bothelo |
| Litigation Coordinator, State of Hawaii |
| 1:2023cv00282 |
| July 10, 2023 |
| US District Court for the District of Hawaii |
| Hawaii Office |
| KENNETH J MANSFIELD |
| DERRICK K WATSON |
| Prisoner: Civil Rights |
| 42 U.S.C. ยง 1983 Prisoner Civil Rights |
| None |
Docket Report
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| Filing 5 CLERK'S JUDGMENT entered on 8/22/2023 pursuant to ECF Nos. #3 , 4 . (eta)COURT'S CERTIFICATE OF SERVICE - Daverson Ballesteros shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on August 23, 2023. A copy of ECF No. 4 Entering Order shall be included in the mailing to Plaintiff. |
| Filing 4 EO: A district court may dismiss sua sponte an action for failure to comply with court rules or orders or to prosecute the action. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 63031 (1962); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). In determining whether dismissal is appropriate, district courts consider the following five factors: (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 sanctions. Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019). On July 11, 2023, the Court mailed to Plaintiff an Order Denying Application to Proceed In Forma Pauperis by a Prisoner [ECF No. 3]. The Court instructed Plaintiff to pay the filing fee or to submit a complete Application to Proceed In Forma Pauperis by a Prisoner on or before August 8, 2023. The Court also warned Plaintiff that failing to follow this instruction would result in automatic dismissal of this action without prejudice. It appears that Plaintiff received the Order because it was not returned to the Court as not deliverable. Plaintiff, however, failed to pay the filing fee, submit a complete in forma pauperis application, or respond in any other fashion to ECF No. 3. The Court thus finds that the relevant factors support dismissal of this action. The public's interest in expeditious resolution of this litigation strongly favors dismissal, as does the Court's need to manage its docket. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Moreover, allowing this action to sit idle would prejudice Defendant. See Yourish v. Cal. Amplifier, 191 F.3d 983, 99192 (9th Cir. 1999) ("Plaintiffs' paltry excuse for his default on the judge's order indicates that there was sufficient prejudice to Defendants from the delay that this factor also strongly favors dismissal."). Finally, there are currently no less drastic alternatives available. The Court recognizes that the public policy favoring disposition of cases on their merits weighs against dismissal. Nevertheless, considering the totality of the circumstances and because the other factors favor dismissal, this factor is outweighed.The Clerk is DIRECTED to: (1) ENTER JUDGMENT in favor of Defendant and against Plaintiff, dismissing this action without prejudice, but without leave to amend; and (2) CLOSE the case. IT IS SO ORDERED. (CHIEF JUDGE DERRICK K. WATSON)(tyk)COURTS CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF) |
Filing 3
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER, ECF NO. #2 - Signed by CHIEF JUDGE DERRICK K. WATSON on 7/11/2023. (1) Ballesteros' Application to Proceed In Forma Pauperis by a Prisoner is DENIED without prejudice as incomplete. (2) Ballesteros is DIRECTED to pay the filing fee in full, or to submit a complete IFP Application by August 8, 2023. (3) The Clerk is DIRECTED to send Ballesteros an Application to Proceed In Forma Pauperis by a Prisoner to facilitate compliance with this Order. (eta)COURT'S CERTIFICATE OF SERVICE - Daverson Ballesteros has been served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on July 11, 2023. A blank Application to Proceed In Forma Pauperis by a Prisoner and its instructions shall be included in the mailing to Plaintiff.
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| Filing 2 APPLICATION to Proceed In Forma Pauperis by a Prisoner - by Plaintiff Daverson Ballesteros (Note: This document appears to be incomplete and does not contain the "Financial Certificate and Consent to Collection of Fees" portion of the application.) (eta) |
| Filing 1 COMPLAINT against Russel Bothelo - filed by Daverson Ballesteros. (Attachments: #1 Mailing Documentation)(eta) |
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