Michael Henry Ferdik v. Joe Bonzelet, Sheriff

963 F.2d 1258 22 Fed.R.Serv.3d 478 Michael Henry FERDIK, Plaintiff-Appellant, v. Joe BONZELET, Sheriff, et al., Defendants-Appellees. No. 90-16834. United States Court of Appeals, Ninth Circuit. Submitted Nov. 7, 1991 * . Decided May 7, 1992. As Amended May 22, 1992. 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: 1 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. I. 2 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…

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…

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.

I.

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 Fer-dik 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, *1260 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…