explaining that, although dismissal is a harsh penalty, the district 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” (citations and internal quotation marks omitted)
How later courts described this case
- explaining that, although dismissal is a harsh penalty, the district 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” (citations and internal quotation marks omitted)
- holding that the district court’s grant of an additional thirty days to amend the complaint "constituted an attempt at a less drastic sanction” and noting that a warning that failure to obey the court’s order would result in dismissal can satisfy the "consideration of alternatives requirement”
- finding that with respect to pro se pleadings, 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”
- explaining that district courts have inherent power to control their dockets, and while dismissal is a harsh penalty that should only be imposed in extreme circumstances, it may be appropriate for failure to comply with an order to file an amended complaint
Written by the judges who cited it.
The opinion
WILLIAM A. NORRIS, Circuit Judge,
dissenting:
The central fact in this appeal is that the second amended complaint in a prisoner’s pro se civil rights action included a caption: “Michael Henry Ferdik vs. Joe T. Bonzelet et al.” The sole question on appeal is whether the district court erred in dismissing the action as a sanction for Ferdik’s failure to amend his complaint to remove the words “et al” from the caption. The majority assumes that Ferdik has a viable civil rights claim against Bonzelet, see op. at 1259 (“The substance of his complaint is not relevant to the question at issue in this appeal”), then fails to explain how the words “et al” in the caption could possibly prejudice Bonzelet. See id. at 1262-1263 (etymology of “et al” and discussion of potential defendants other than Bonzelet). Even assuming arguendo that the use of “et al” is not mere surplusage but renders the caption defective, I believe it was an abuse of discretion to dismiss the action against Bonzelet as a sanction for Ferdik’s failure to amend the caption, especially when the court had available to it a much less drastic alternative, namely, an order striking the words “et al” from the caption. See generally 27 Federal Procedure (Lawyer’s Edition) § 62:93 at 256 (“a court is not permitted to impose a sanction as drastic as a judgment of dismissal in order to force a legally artistic pleading”); Wright and Miller, Federal Practice and Procedure § 1321 at 730 (“a defective caption or even its complete absence is merely a formal error and never should be viewed as a fatal defect.”)
If “et al” rendered the caption defective, then the district court could easily have stricken “et al” from the caption rather than striking the complaint itself. Striking “et al” would have satisfied the most stringent reading of Rule 10(a) and furthered the goal of resolving cases on the merits. It is essential to our liberal pleading rules that “[a]ll pleading shall be so construed as to do substantial justice,” Fed.R.Civ.P. 8(f). In that spirit, we have similarly disregarded other purely formal defects. See, e.g., Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir.1990) (a document labelled as a certificate of probable cause can “serve ‘double duty’ as notice of appeal.”), cert. denied, — U.S. —, 111 S.Ct. 974 , 112 L.Ed.2d 1059 (1991). It is particularly egregious to dismiss the claim of a pro se civil rights litigant for a purely formal defect. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987) (we “liberally construe the ‘inartful pleading’ of pro se litigants”) (quoting Boag v. MacDougall, 454 U.S. 364, 365 , 102 S.Ct. 700, 701 , 70 L.Ed.2d 551 (1982) (per curiam)). In light of the available option of striking “et al,” I would hold that the district court abused its discretion in dismissing the action against Bonzelet as a sanction for Ferdik’s failure to amend his complaint to delete the words “et al” from the caption. 1
*1264 At a minimum, the case should be remanded for an explicit consideration of striking “et al” as a less drastic alternative sanction. A district court abuses its discretion when it uses dismissal as a sanction based upon a conclusory statement that it considered less drastic alternatives, see Hamilton Copper & Steel Corp. v. Primary Steel, 898 F.2d 1428, 1430 (9th Cir.1990), and there is no basis in the record for believing that this case fits into the “narrow exception ... [for] egregious circumstances” when an inquiry into less drastic sanctions is unnecessary. Id. (citations and internal quotations omitted).
. I am puzzled by the majority’s reliance on a factor that was not relied upon by the district court in exercising its discretion to dismiss the action as a sanction for Ferdik’s failure to delete the words “et al” from the caption: that Ferdik's civil rights claim "consumed large amounts of the [district] court’s valuable time that it could have devoted to other major and serious criminal and civil matters on its docket.” Op. at 1261-1262. Because the district court did not rely on that factor in exercising its discretion to sanction Ferdik, we may not consider it in reviewing the order of dismissal under the abuse of discretion standard. Our review is limited to factors relied upon by the district court in exercising its discretion; we have no authority to scour the record for factors that the district court might have considered. The question on *1264 appeal is not how we would have exercised our discretion, for it is not our discretion to exercise.