Sambrano v. Opferbeck et al

Filing 55

ORDER that the reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss (Doc. 49; see Doc. 51). Defendants' 49 Motion to Dismiss is granted; Plaintiff's Complaint is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court must enter judgment accordingly and terminate the action. Signed by Judge G Murray Snow on 5/30/12.(DMT)

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JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Sambrano,

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Plaintiff,

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vs.

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Sgt. Opferbeck, et al.,
Defendants.

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No. CV 11-0119-PHX-GMS (LOA)
ORDER

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Plaintiff Anthony Sambrano brought this civil rights action under 42 U.S.C. § 1983

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against various City of Phoenix police officers and Fire Department firefighters and

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Rosemary Barba, a Maricopa County Hospital nurse (Doc. 1). Before the Court is Barba’s

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Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 16(f), 37(b)(2)(A), and 41(b)

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(Doc. 49), to which Defendant police officers and firefights filed a joinder (Doc. 51).

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Plaintiff did not respond to the motion.
The Court will grant the motion and terminate the action.

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I.

Background

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Plaintiff’s claims stem from his arrest on January 25, 2009 (Doc. 1). He alleged that

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Defendant police officers used excessive force and then refused his pleas for medical

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attention. Plaintiff claimed that Defendant firefighters arrived and also refused to take him

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to a hospital. Plaintiff averred that after the jail refused to book him because of his injuries,

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he was taken to the Maricopa County Hospital. According to Plaintiff, Nurse Barba refused

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to respond to his claims of pain and difficultly breathing and, during the night at the hospital,

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she taunted him for crying. Plaintiff claimed that he had broken ribs and a collapsed lung,

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and after a shift change the next morning, a physician inserted a chest tube and Plaintiff was

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finally able to breathe (id. at 3-91).

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In his Complaint, Plaintiff set forth eight counts for relief alleging excessive force,

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denial of constitutionally adequate medical care, and due process violations (id. at 10-17).

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The Court screened the Complaint, dismissed the due process claims in Counts VI and VII,

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and ordered Defendants to answer the excessive-force and medical-care claims in Counts I-V

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and VIII (Doc. 10 at 12).2

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Barba filed a Motion for Judgment on the Pleadings (Doc. 39), to which Plaintiff did

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not respond. The Court found that Barba did not establish on the face of the pleadings that

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she was entitled to judgment as a matter of law, and the motion was denied (Doc. 52).

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II.

Motion to Dismiss

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Defendants now move for dismissal based on Plaintiff’s failure to comply with

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discovery rules and failure to prosecute this action (Docs. 49, 51). Barba’s motion, which

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is supported by defense counsel’s declaration, states that Plaintiff has not filed any

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documents or participated in any proceedings in this case since July 12, 2011, nor has he

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made any Rule 26 disclosures (Doc. 49 at 1, Ex. 1, Uglietta Decl. ¶ 2). Barba also asserts

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that Plaintiff did not respond to timely served written interrogatories, requests for production,

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or requests for admissions and Plaintiff did not offer any excuse for his failure to respond to

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written discovery (id. at 2, Ex. 1, Uglietta Decl. ¶ 3).

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Defense counsel avers that she noticed Plaintiff’s deposition for March 16, 2012, and,

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prior to this date, her office called Plaintiff’s telephone number of record to confirm the

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deposition (id. ¶ 4). Defense counsel states that the telephone call was answered by

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Plaintiff’s sister, who informed counsel that Plaintiff does not live at that address, he has no

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Citation refers to the page numbers in the Court’s Case Management/Electronic Case
Filing system.
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Upon screening, the Court dismissed all the named Maricopa County Hospital
Defendants except Nurse Barba (Doc. 10 at 6, 12).
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phone or permanent residence, and she could not confirm Plaintiff’s appearance for the

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deposition (id.). Plaintiff’s sister indicated that Plaintiff does pick up mail at the address of

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record (id. ¶ 6).

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According to defense counsel, Plaintiff did not appear for his March 16, 2012

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deposition and did not attempt to contact counsel to explain his non-appearance (id. ¶ 5, Ex.

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A, Transc., p. 4-6). Defense counsel also states that, on March 16, 2012, she sent a letter to

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Plaintiff at his address of record and requested that he immediately contact her regarding

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discovery (id. ¶ 6, Ex. B). Counsel avers that Plaintiff has not contacted her (id. ¶¶ 6-7).

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Defendants contend that Plaintiff’s failure to comply with discovery warrants the

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sanction of dismissal under Rules 16(f)(1)(c) and 37(c)-(d) (Doc. 49 at 3). They further

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contend that dismissal is appropriate under Rule 41(b) because Plaintiff’s failure to prosecute

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prevents this case from proceeding and has unduly prejudiced Defendants in their ability to

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prepare a defense, and a monetary sanction is unlikely to affect Plaintiff as an indigent party

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(id. at 4-5).

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The Court issued an Order notifying Plaintiff of his obligation to respond to the

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motion and of Local Rule of Civil Procedure 7.2(i), which provides that failure to respond

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to a motion may be deemed a consent to the granting of the motion (Doc. 50 at 1-2).
As stated, Plaintiff did not file a response, and the time to do so has expired.

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III.

Federal Rules of Civil Procedure 16, 37, and 41

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Rule 16(f)(1)(C) permits the court to sanction a party who “fails to obey a scheduling

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or other pretrial order.” The available sanctions may include those authorized by Rule

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37(b)(2)(A)(i)-(vi). See U.S. EEOC v. ABM Indus. Inc., 2009 WL 1287757, at *2 (E.D. Cal.

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2009) (under Rule 37, a district court has discretion to impose a wide range of sanctions

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when a party fails to comply with the rules of discovery or with court orders enforcing those

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rules). Similarly, Rules 37(c)(1)(C) and 37(d)(1)(B)(3) provide that a party’s failure to

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disclose or failure to attend a deposition may be sanctioned by any of the orders listed in Rule

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37(b)(2)(A)(i)-(vi). Rule 37(b)(2)(A)(v) contemplates “dismissing the action or proceeding

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in whole or in part.” Rule 41(b) allows a court to dismiss an action for failure to prosecute,
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failure to comply with the Federal Rules of Civil Procedure, failure to comply with the

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court’s local rules, or failure to comply with court orders. See Fed. R. Civ. P. 41(b); Link

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v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962) (a court’s authority to dismiss for lack

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of prosecution is necessary to prevent undue delays in the disposition of pending cases and

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to avoid congestion in the calendars of the district courts); Hells Canyon Pres. Council v.

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U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (court may dismiss under Rule 41(b) for

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failure to prosecute or comply with rules of civil procedure or the court’s orders); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to

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comply with any order of the court).

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The standards governing dismissal for failure to comply with a court order are

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basically the same under either Rule 37(b) or Rule 41(b). Malone v. U.S. Postal Serv., 833

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F.2d 128, 130 (9th Cir. 1987). Before dismissal for failure to prosecute or to comply with

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a procedural rule or court order, the Court must weigh “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic alternatives.” Ferdik, 963 F.2d at 1261 (citing

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Henderson v. Duncan, 779 F.2d 1421, 1423-24 (9th Cir. 1986)). If the court does not

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consider these factors, the record may be reviewed independently on appeal for abuse of

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discretion. Henderson, 779 F.2d at 1424.

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IV.

Analysis

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A.

Expeditious Resolution/Need to Manage Docket

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Here, the first two factors favor dismissal. “[T]he public’s interest in expeditious

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resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999). Rule 16 scheduling orders control the course of action in a case, and

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disregard of a scheduling order “would undermine the court’s ability to control its docket,

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disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). Plaintiff has

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ostensibly lost interest in prosecuting his action, and his failure to participate in discovery
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and litigation hinders the Court’s ability to move this case toward disposition. See Ferdik,

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963 F.2d at 1261 (district courts have inherent power to manage their dockets without being

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subject to noncompliant litigants).

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Risk of Prejudice/Disposition on the Merits

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The third factor also favors dismissal. There is no prejudice to Defendants to resolve

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the motion in their favor. Moreover, “[t]he failure to prosecute diligently is sufficient by

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itself to justify a dismissal, even in the absence of a showing of actual prejudice to the

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defendant . . . .” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (internal quotation omitted).

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Plaintiff’s refusal to respond to discovery requests has prevented Defendants from accessing

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material discoverable evidence, which prevents a decision on the merits if this case proceeds

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to trial. See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097

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(9th Cir. 2007) (“[w]hat is most critical for case-dispositive sanctions, regarding risk of

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prejudice . . . is whether the discovery violations ‘threaten to interfere with the rightful

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decision of the case’”) (quotation omitted). But because public policy favors disposition of

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cases on their merits, the fourth factor weighs against dismissal at this stage. Pagtalunan v.

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Galaza, 291 F.3d 639, 643 (9th Cir. 2002).

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C.

Availability of Less Drastic Sanctions

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The final factor requires the Court to consider whether a less drastic alterative is

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available. Dismissal is a drastic sanction, see Ferdik, 963 F.2d at 1260, and dismissal for

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discovery violations is authorized only in “extreme circumstances.” In re Exxon Valdez, 102

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F.3d 429, 432 (9th Cir. 1996) (citations omitted). When an adverse party fails to cooperate

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in discovery, the party seeking discovery may move to compel disclosure or discovery. Fed.

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R. Civ. P. 37(a)(1). Defendants did not move to compel disclosure or discovery; instead,

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they move for dismissal—the harshest sanction available. Generally, a motion to dismiss

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before an attempt to compel discovery would be premature.

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But when addressing Defendants’ request for dismissal under Rule 41(b), the Court

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considers Plaintiff’s failure to respond to discovery requests in conjunction with his failure

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to respond to Defendants’ motions, his failure to file anything in this action for almost a year,
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and his failure to show any intent to litigate his claims. Plaintiff was specifically warned

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twice by the Court that his failure to respond to Defendants’ motions seeking dismissal could

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be treated as a consent to the granting of the motions and judgment against him (Docs. 41,

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50). Prior to these warnings, the Screening Order notified Plaintiff that failure to comply

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with a Court order could lead to dismissal of the action (Doc. 10 at 11), and the Scheduling

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Order informed Plaintiff that he must respond to discovery requests within the time provided

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by the Rules of Civil Procedure (Doc. 36 at 2). Further, Barba submits evidence of defense

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counsel’s repeated attempts to confer with Plaintiff, to no avail (Doc. 49, Ex. 1, Uglietta

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Decl. ¶¶ 4, 6-7).

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The Court finds that in light of Plaintiff’s total failure to respond to the Court’s

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numerous warnings and to Defendants’ discovery requests and communications, alternative

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sanctions are not viable. See Valley Eng’rs v. Electric Eng’g Co., 158 F.3d 1051, 1058 (9th

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Cir. 1998) (“[w]here a party so damages the integrity of the discovery process that there can

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never be assurance of proceeding on the true facts, a case dispositive sanction may be

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appropriate”). It is unlikely that Plaintiff would respond to any further orders. And, as Barba

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notes, because Plaintiff is proceeding in forma pauperis, a monetary sanction would be futile.

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Staying the proceedings is also not appropriate; the case has already been pending for the last

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year without any production of evidence or activity by Plaintiff. The sanction of dismissal

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is therefore appropriate.

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In summary, four of the five factors support dismissal. The Motion to Dismiss will

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be granted, and Plaintiff’s Complaint will be dismissed with prejudice. See Fed. R. Civ. P.

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41(b) (dismissal under Rule 41(b), unless otherwise ordered, operates as an adjudication on

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the merits).

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion to

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Dismiss (Doc. 49; see Doc. 51).

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//

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//
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(2) Defendants’ Motion to Dismiss (Doc. 49) is granted; Plaintiff’s Complaint is
dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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(3) The Clerk of Court must enter judgment accordingly and terminate the action.

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DATED this 30th day of May, 2012.

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