Patterson v. Schriro, et al

Filing 154

ORDER denying without prejudice the 144 Motion for Order to Show Cause. Signed by Senior Judge Robert C Broomfield on 4/17/12.(DMT)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Barry Northcross Patterson, 13 Plaintiff, 14 vs. 15 Charles L. Ryan, et al. 16 Defendants. ) ) ) ) ) ) ) ) ) ) No. CIV 05-1159-PHX-RCB (SPL) O R D E R 17 18 On March 13, 2012, defendants Broderick and Mason filed a 19 “Motion for Order to Show Cause,” requesting “that the Court enter 20 [an] Order directing Plaintiff Patterson to show cause why this 21 case should not be dismissed based on his failure to prosecute 22 it[.]” Mot. (Doc. 144) at 2:14-15. 23 upon plaintiff’s refusal of delivery of legal mail. 24 148) at 1:23-24 (citations omitted). 25 ordered pro se plaintiff Patterson to file and serve within 14 26 “days of the date of entry of this order a response as to why the 27 court should not dismiss this action for failure to prosecute or to 28 comply with court orders pursuant to Federal Rule of Civil That defense motion was based See Ord. (Doc. On March 19, 2012, this court 1 Procedure 41(b)[.]” Id. at 2:12-15. 2 reasoned: 3 In so ordering, this court This action has been pending nearly seven years. There is only one claim remaining. Since December, 2011, as the record amply shows, the court and defendants have accommodated plaintiff with respect to various issues he has been having with his physical and mental state – issues which may have been caused by or attributable to his periodic self-imposed hunger strikes. 4 5 6 7 8 Id. at 2:1-6 (emphasis in original). 9 “This most recent turn of events, where plaintiff is refusing This court further reasoned: 10 delivery of legal mail, . . . hence seriously call[s] into question 11 his intent to pursue this litigation[.]” Id. at 2:6-9. 12 Plaintiff’s response, although timely, is, for the most part 13 non-responsive. 14 to defendants’ summary judgment also filed on March 13, 2012; and 15 he timely did that. 16 Plaintiff did indicate that he would be responding See Resp. (Doc. 151). Despite the foregoing, the defendants assert that plaintiff’s 17 “actions . . . are not entirely consistent with his words.” 18 (Doc. 152) at 1:23-24. 19 the court apprised of his changes in mailing addresses, although he 20 has been moved a number of times. 21 refusing to accept “personal responsibility” for causing the 22 purported delay in delivery of legal mail, and for “selectively 23 accept[ing] delivery of his legal mail[.]” 24 2:2; and 2:17. 25 “needlessly expanded this litigation through his self-destructive 26 behaviors.” Reply Defendants fault plaintiff for not keeping They further fault plaintiff for See Reply (Doc. 152) at Additionally, defendants claim that plaintiff has Id. at 2:17-18. 27 As the record shows, since at least December, 2011, plaintiff 28 has engaged in self-imposed hunger strikes, evidently “tr[ying] to -2- 1 exercise his right to die[.]” Resp. (Doc. 149) at 1, ¶ 5. 2 Defendants express concern that plaintiff has “never explicitly 3 stated that he intends to make every effort not to repeat [such] 4 self-destructive behaviors, Reply (Doc. 152) at 2:11-12, which 5 evidently necessitated plaintiff being placed “on ‘suicide’ watch” 6 as recently as February 15, 2012 - March 9, 2012. 7 149) at 1, ¶ 3). 8 “undermin[es] [plaintiff’s] “asserted desire to pursue this 9 case[.]” Reply (Doc. 152) at 2:11. 10 See Resp. (Doc. Such conduct, from defendants’ standpoint, Defendants acknowledge the possibility that the court may 11 conclude, that “dismissal is too severe a sanction for 12 [plaintiff’s] temporary abandonment of this case[.]” Id. at 2:22- 13 23. 14 order “especially so as to impress upon [plaintiff] that it will 15 not condone these kinds of practices in the future.” 16 26. 17 In that event, the defendants request that the court issue an Id. at 2:25- After seven years of litigation, only one aspect of this 18 action remains – plaintiff’s claim that defendants violated his 19 free exercise rights under the First Amendment. 20 is the subject of defendants’ summary judgment motion filed March 21 13, 2012. 22 and the overall preference for resolution on the merits, this court 23 will not dismiss the present action for failure to prosecute. 24 Plaintiff’s response sufficiently evinces his intent to pursue the 25 last remaining aspect of this litigation. 26 possible filing allowed, is a reply by defendants, if they so 27 desire. 28 behavior cannot, and will not, deter the court from deeming this That narrow claim Given the plaintiff’s timely response to that motion, Further, the only Thus, regardless of plaintiff’s conduct going forward, his -3- 1 matter “ready for decision without oral argument on the day 2 following the date set for filing a reply[.]” See Ord. (Doc. 148) 3 at 3:18-19. 4 Accordingly, for the reasons set forth above, the court hereby 5 DENIES, without prejudice, the Motion for an Order to Show Cause 6 filed by defendants Broderick and Mason (Doc. 144). 7 DATED this 17th day of April, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Copies to counsel of record and plaintiff pro se 22 23 24 25 26 27 28 -4-

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