963 F.2d 1258 (9th Cir. 1992), 90-16834, Ferdik v. Bonzelet

Docket Nº:90-16834.
Citation:963 F.2d 1258
Party Name:Michael Henry FERDIK, Plaintiff-Appellant, v. Joe BONZELET, Sheriff, et al., Defendants-Appellees.
Case Date:May 07, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1258

963 F.2d 1258 (9th Cir. 1992)

Michael Henry FERDIK, Plaintiff-Appellant,


Joe BONZELET, Sheriff, et al., Defendants-Appellees.

No. 90-16834.

United States Court of Appeals, Ninth Circuit

May 7, 1992

Submitted Nov. 7, 1991[*]

As Amended May 22, 1992.

Page 1259

Michael Henry Ferdik, pro se.

William J. Ekstrom, Jr., Mohave County Atty., Kingman, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, NORRIS, and KLEINFELD, Circuit Judges.

CHOY, Circuit Judge:

Appellant Michael Henry Ferdik appeals pro se the judgment of the District Court for the District of Arizona of November 5, 1990 dismissing his claim under 42 U.S.C. § 1983 after he violated a court order by failing to file a second amended complaint in a timely manner. We affirm.


On March 25, 1988 Ferdik filed a complaint alleging his civil rights were violated under 42 U.S.C. § 1983. The substance of his complaint is not relevant to the question at issue in this appeal. On June 14, 1988 the complaint was dismissed and Ferdik was granted leave to file amendments setting forth specific allegations of fact which state a claim for relief within thirty days. Ferdik filed his first amended complaint on June 20, 1988.

On July 21, 1988 the court filed a detailed order in which it reviewed the substance of the amended complaint. In this order the court noted that the complaint consisted primarily of case law citations setting forth various standards of review,

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but noted that it did contain four allegations of conduct which related to appellant. The court reviewed each of these allegations and determined that Ferdik still failed to state a claim upon which the court could grant relief.

The court then granted Ferdik leave to file a second amended complaint by August 19, 1988. In its order the court admonished Ferdik that failure to file the amended complaint in a timely manner would result in dismissal without further notice to him.

On August 22, 1988, after Ferdik failed to timely file the second amended complaint, the court dismissed the case. On February 9, 1990 the court granted Ferdik's motion for reconsideration of the judgment, vacated the earlier judgment of dismissal, and ordered the clerk to file the second amended complaint that Ferdik had filed late on January 26, 1989. Judge Rosenblatt then referred the case to Magistrate Mignella for a review of the second amended complaint.

On August 17, 1990 the magistrate entered an order striking Ferdik's second amended complaint on the ground that it did not comply with Rule 10(a) of the Federal Rules of Civil Procedure. 1 The second amended complaint named the defendants as "Joe T. Bonzelet, et al." and the magistrate ruled that this caption was inappropriate under Rule 10(a). The magistrate ordered Ferdik to refile a conforming second amended complaint with thirty days and again advised him that if he did not comply with the order the clerk would enter a dismissal without further notice to him.

On November 7, 1990, after Ferdik had failed to refile his second amended complaint as required by the magistrate's order, Judge Rosenblatt entered a judgment dismissing the case. In this appeal Ferdik seeks review of that dismissal.


Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court. We review for abuse of discretion a district court's dismissal of an action for failure to comply with the court's order requiring submission of an amended complaint in a timely manner. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.1981). The trial court's dismissal should not be disturbed unless there is " 'a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.' " Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987); Eldridge, 832 F.2d at 1136 (quotation omitted).


In this case we address whether the district court abused its discretion in dismissing Ferdik's case because he failed to obey the court's order requiring him to refile a second amended complaint that complied with the requirements of Rule 10(a) in a timely manner or face dismissal of his case. District courts have the inherent power to control their dockets and, "[i]n the exercise of that power they may impose sanctions including, where appropriate, ... dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in extreme circumstances. Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir.1990); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986).

In determining whether to dismiss a case for failure to comply with a court order the district court must weigh five factors including: "(1) the public's interest

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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." Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. Although it is preferred, it is not required that the district court make explicit findings in order to show that it has considered these factors and we may review the record independently to determine if the district court has abused its discretion. Malone, 833 F.2d at 130; Henderson, 779 F.2d at 1424.

Moreover, in deciding whether the district court abused its discretion in dismissing this case, we also are mindful of Supreme Court precedent that instructs federal courts liberally to construe the "inartful pleading" of pro se litigants. Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980); Noll v. Carlson,, 809 F.2d 1446, 1448 (9th Cir.1987); see Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.1986) (should treat pro se litigants with great leniency when evaluating compliance with the technical rules of civil procedure). This rule is particularly important in civil rights cases. Eldridge, 832 F.2d at 1137. Thus, before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively. Noll, 809 F.2d at 1448-49 (courts must draft a few sentences explaining the deficiencies to the pro se prisoner plaintiff).

At all stages of these proceedings the district court not only demonstrated more than adequate sensitivity to Ferdik's inexperience as a pro se litigant, but also went out of its way to assist him. The court granted Ferdik two opportunities to amend his complaint (each time expressly warning him that failure to timely amend would result in dismissal); gave him the guidance necessary for him to submit a properly amended first complaint; and even went as far as vacating the dismissal it had entered after appellant failed to timely file his second amended complaint in the first instance. Moreover, in striking his second amended complaint as deficient, the magistrate's order set out the language of Rule 10(a), clearly explained the reason the complaint was...

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