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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Barry Northcross Patterson,

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Plaintiff,

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vs.

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Charles L. Ryan, et al.

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Defendants.

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No. CIV 05-1159-PHX-RCB (SPL)
O R D E R

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On March 13, 2012, defendants Broderick and Mason filed a

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“Motion for Order to Show Cause,” requesting “that the Court enter

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[an] Order directing Plaintiff Patterson to show cause why this

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case should not be dismissed based on his failure to prosecute

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it[.]” Mot. (Doc. 144) at 2:14-15.

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upon plaintiff’s refusal of delivery of legal mail.

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148) at 1:23-24 (citations omitted).

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ordered pro se plaintiff Patterson to file and serve within 14

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“days of the date of entry of this order a response as to why the

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court should not dismiss this action for failure to prosecute or to

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comply with court orders pursuant to Federal Rule of Civil

That defense motion was based
See Ord. (Doc.

On March 19, 2012, this court

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Procedure 41(b)[.]” Id. at 2:12-15.

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reasoned:

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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.

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Id. at 2:1-6 (emphasis in original).

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“This most recent turn of events, where plaintiff is refusing

This court further reasoned:

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delivery of legal mail, . . . hence seriously call[s] into question

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his intent to pursue this litigation[.]” Id. at 2:6-9.

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Plaintiff’s response, although timely, is, for the most part

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non-responsive.

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to defendants’ summary judgment also filed on March 13, 2012; and

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he timely did that.

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Plaintiff did indicate that he would be responding

See Resp. (Doc. 151).

Despite the foregoing, the defendants assert that plaintiff’s

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“actions . . . are not entirely consistent with his words.”

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(Doc. 152) at 1:23-24.

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the court apprised of his changes in mailing addresses, although he

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has been moved a number of times.

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refusing to accept “personal responsibility” for causing the

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purported delay in delivery of legal mail, and for “selectively

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accept[ing] delivery of his legal mail[.]”

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2:2; and 2:17.

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“needlessly expanded this litigation through his self-destructive

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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.

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As the record shows, since at least December, 2011, plaintiff

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has engaged in self-imposed hunger strikes, evidently “tr[ying] to
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exercise his right to die[.]” Resp. (Doc. 149) at 1, ¶ 5.

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Defendants express concern that plaintiff has “never explicitly

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stated that he intends to make every effort not to repeat [such]

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self-destructive behaviors, Reply (Doc. 152) at 2:11-12, which

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evidently necessitated plaintiff being placed “on ‘suicide’ watch”

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as recently as February 15, 2012 - March 9, 2012.

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149) at 1, ¶ 3).

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“undermin[es] [plaintiff’s] “asserted desire to pursue this

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case[.]” Reply (Doc. 152) at 2:11.

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See Resp. (Doc.

Such conduct, from defendants’ standpoint,

Defendants acknowledge the possibility that the court may

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conclude, that “dismissal is too severe a sanction for

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[plaintiff’s] temporary abandonment of this case[.]” Id. at 2:22-

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23.

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order “especially so as to impress upon [plaintiff] that it will

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not condone these kinds of practices in the future.”

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26.

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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

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action remains – plaintiff’s claim that defendants violated his

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free exercise rights under the First Amendment.

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is the subject of defendants’ summary judgment motion filed March

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13, 2012.

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and the overall preference for resolution on the merits, this court

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will not dismiss the present action for failure to prosecute.

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Plaintiff’s response sufficiently evinces his intent to pursue the

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last remaining aspect of this litigation.

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possible filing allowed, is a reply by defendants, if they so

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desire.

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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

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matter “ready for decision without oral argument on the day

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following the date set for filing a reply[.]” See Ord. (Doc. 148)

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at 3:18-19.

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Accordingly, for the reasons set forth above, the court hereby

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DENIES, without prejudice, the Motion for an Order to Show Cause

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filed by defendants Broderick and Mason (Doc. 144).

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DATED this 17th day of April, 2012.

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Copies to counsel of record and plaintiff pro se

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