Tilley v. Phoenix, City of et al

Filing 8

ORDER - IT IS ORDERED that Plaintiff's Complaint is hereby dismissed without prejudice. The Clerk is kindly directed to terminate this case. (See document for further details). Signed by Judge Stephen M McNamee on 8/11/11. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ronald Tilley,
Plaintiff,

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vs.

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City of Phoenix; Police Standards
Bureau; Cynthia P. Gonzalez; Glen
Caroner & Unknown Parties,

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Defendants.

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No. CV-11-1321-PHX-LOA
ORDER

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Pro se Plaintiff commenced this lawsuit on July 1, 2011. (Doc. 1)
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That same day, the case was randomly assigned to Magistrate Judge Lawrence O.
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Anderson. (Doc. 3) On July 7, 2011, Judge Anderson took under advisement Plaintiff’s
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request for IFP status because Plaintiff failed to fully answer all the questions on the
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application to Proceed IFP Plaintiff was ordered to refile the IFP form fully completed
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or pay the filing fee of $350.00 on or before July 20, 2011. (Doc. 4)
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Further, on July 7, 2011, Judge Anderson issued a Notice of Assignment
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and Order, directing Plaintiff to submit on or before July 22, 2011: (1) his written election
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to either voluntarily consent to magistrate-judge jurisdiction pursuant to 28 U.S.C. §
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636(c)(1) or elect to proceed before a United States district judge, and file (2) a First
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Amended Complaint in compliance with Rule 8(a) and (d), Fed.R.Civ.P., and LRCiv.7.1.
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As explained in detail in Judge Anderson’s July 7, 2011 order, the First

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Amended Complaint must contain a short and plain statement of Plaintiff’s factual and

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legal allegations that establish a “plausible claim” against each Defendant, consistent with

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Twombly and Iqbal; specify the District Court’s jurisdictional basis; and clarify the

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federal and state statute(s), if any, upon which Plaintiff is relying to support his

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claim(s).

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“It is well established that ‘[d]istrict courts have inherent power to control

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their docket.’” Ready Transportation, Inc., v. AAR Manufacturing, Inc.,627 F.3d 402, 404

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(9th Cir. 2010) (quoting Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d

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1071, 1074 (9th Cir. 1998) (alteration in original) (quoting Hernandez v. City of El

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Monte, 138 F.3d 393, 398 (9th Cir. 1998)). “This includes the power to strike items from

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the docket as a sanction for litigation conduct.” Id. (citing, among others, Lazy Y Ranch

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Ltd. v. Behrens, 546 F.3d 580, 586-87, 588 (9th Cir. 2008) (discussing, but declining to

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rule on, the ability of a district court to strike documents submitted as exhibits to a

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motion); Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224-26

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(9th Cir. 2005) (upholding a district court’s grant of a motion to strike deposition

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corrections and a declaration as a sanction when a party had violated Fed.R.Civ.P. 30(e)).

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A district court’s inherent power also permits it to dismiss an entire action

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to rein in abusive conduct. Atchison, 146 F.3d at 1074 (recognizing inherent power to

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dismiss an action to sanction abusive conduct such as judge-shopping or failure to

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prosecute). This inherent power, however, “must be exercised with restraint and

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discretion. A primary aspect of that discretion is the ability to fashion an appropriate

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sanction for conduct which abuses the judicial process.” Ready Transp., Inc., 627 F.3d at

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404-405 (citing Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 830 (9th Cir.

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1986) (per curiam) (requiring a district court to weigh, among other factors, “the

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availability of less drastic sanctions” before resorting to dismissal as a sanction).

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In his July 29, Order to Show Cause, doc. 7, Judge Anderson forewarned

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Plaintiff that, pursuant to Rule 41(b), Fed. R. Civ. P., and Ferdik v. Bonzelet, 963 F.2d
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1258, 1260 (9th Cir. 1992), trial courts have the inherent power to control their dockets

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and, in the exercise of that power, may impose sanctions including, where appropriate,

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dismissal of a case with or without prejudice. See also, Flaksa v. Little River Marine

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Constr. Co., 389 F.2d 885, 887, 887 (5th Cir. 1968) (citing cases); Chambers v. NASCO,

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Inc., 501 U.S. 32, 44-45 (1991) (district court may “fashion appropriate sanction for

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conduct” including “outright dismissal.”). “The threat of sanctions promotes compliance

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with a court’s orders even if the sanctions threatened are never imposed.” Green v. Lisa

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Frank, Inc., 221 Ariz. 138, 152, 211 P.3d 16, 30 (Az.Ct.App. 2009) (concluding the trial

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court did not abuse its discretion in striking plaintiff’s reply, dismissing his cross-claim,

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and entering judgment in favor of defendant) (collecting federal and state cases of

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dismissals for failure to comply with court orders).

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A district court’s inherent authority to sanction parties for failing to comply

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with its orders exists, in part, to prevent “‘disobedience [of] the orders of the Judiciary,

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regardless of whether such disobedience interfered with the conduct of trial.’” Chambers,

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501 U.S. at 44 (quoting Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787,

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798 (1987)). “Dismissal of the complaint for failure to comply with the rules [is] within

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the court’s discretion.” Sergio Bautista et al. v. Los Angeles County, 216 F.3rd 837, 841

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(9th Cir. 2000) (citing Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187,

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188 (2nd Cir. 1943)); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337,

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348 (9th Cir. 1995) (The public interest “in expeditious resolution of litigation,” a court’s

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need to manage docket, risk of prejudice to party seeking sanctions, public policy

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favoring disposition on the merits, availability of lesser sanctions, bad faith of violating

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party, relationship between conduct and merits justify sanction); Poulis v. State Farm

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Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (personal responsibility of party,

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prejudice to other party, history of dilatory conduct, willfulness or bad faith, other

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sanctions, merits of claim or defense).

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The Civil Justice Reform Act of 1990 (“CJRA”), 28 U.S.C. § 471 et seq.,

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mandates the early and on-going judicial management of the pretrial process. Under the
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CJRA mandate, “[f]ederal trial courts are now required, by statute, to implement

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techniques and strategies designed to dispose of cases in an efficient and inexpensive

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manner.” Schwarzkopf Technologies Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D.

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420, 423 (D. Del. 1992). Additionally, federal judges “are subject to the injunction of

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Rule 1 [Federal Rules of Civil Procedure] that [the Rules] ‘be construed to secure the just,

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speedy and inexpensive determination of every action.’” Herbert v. Lando, 441 U.S. 153,

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177, (1979) (emphasis in original). Plaintiff’s failures to timely comply with Judge

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Anderson’s July 7 and 29, 2011 orders are frustrating the speedy and inexpensive

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resolution of this case.

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In determining whether to dismiss a case for failure to comply with court

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orders, district courts weigh five factors: (1) the public interest; (2) the court’s need to

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manage the docket; (3) the risk of prejudice to the defendant; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Ferdik, 963 F.2d at 1260-61. Plaintiff’s failures to comply with court orders

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are frustrating the Court’s responsibilities mandated by Rule 1, FED.R.CIV.P.,and the

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Civil Justice Reform Act of 1990, 28 U.S.C. § 471 et seq., such as, “setting early, firm

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trial dates, such that the trial is scheduled to occur to occur within eighteen months after

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the filing of the complaint. . . .” 28 U.S.C. § 473(a)(2) (emphasis added). Plaintiff’s pro se

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status does not discharge his obligation to “abide by the rules of the court in which [they]

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litigate[].” Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir.

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1986).

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After considering the adequacy of lesser sanctions, Plaintiff has been

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forewarned that sanctions may be imposed and weighing all five Ferdik factors to

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determine if dismissal is appropriate due to Plaintiff’s failure to comply with prior court

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orders, the Court concludes that dismissal of Plaintiff’s Complaint without prejudice is

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appropriate and just under the circumstances of this case.

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Pursuant to General Order 11-3 (Dismissal of a Civil Case Assigned to a

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United States Magistrate Judge Absent Voluntary Consent by the Parties Under 28 U.S.C.

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§ 636(c)(1)),

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IT IS ORDERED that Plaintiff’s Complaint is hereby dismissed without
prejudice. The Clerk is kindly directed to terminate this case.
DATED this 11th day of August, 2011.

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