Mach v. Arizona, State of et al

Filing 37

ORDER the reference to the Magistrate Judge is withdrawn with respect to Defendants' Motion to Dismiss 33 . Defendants' Motion to Dismiss 33 is granted. This action is dismissed, and the Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 1/29/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William C. Mach,
Plaintiff,

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vs.

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Director Charles Ryan, et al.,
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Defendants.
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No. CV 11-1734-PHX-DGC (SPL)

ORDER

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On September 1, 2009, Plaintiff William C. Mach, who is in the custody of the Arizona

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Department of Corrections, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983.

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(Doc. 1.) He alleged that Defendants Ryan and Kendall refused to authorize surgical repair

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of Plaintiff’s inguinal hernia and that they charged him a fee for his clinic health visits,

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thereby creating a contractual relationship, which they breached. (Id.) The Court ordered

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Ryan and Kendall to answer Counts I and III and dismissed the remaining count and

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Defendants. (Doc. 5.)

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Defendants now move to dismiss the action for Plaintiff’s failure to comply with a

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discovery Order to provide or permit discovery. (Doc. 33; ref. Doc. 31.) The Court sent

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Plaintiff a Notice advising him of his obligation to respond to the Motion to Dismiss. (Doc.

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34.) Plaintiff failed to file a response. The Court will grant the motion.

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On August 10, 2012, the Court granted Defendant’s Motion to Compel Discovery

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Responses and Disclosures. (Doc. 31.) Plaintiff was specifically ordered to provide his

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Initial Disclosure pursuant to Fed. R. Civ. P. 26(a)1 and to complete his responses to the

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request for production of documents, including a signed authorization for his prison medical

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records. Production was to take place on or before August 24, 2012. (Doc. 31.) The Order

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provided that “Plaintiff should take note that if he fails to timely comply with this order, this

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action may be dismissed.” (Id. at 2.)

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Defendants assert that Plaintiff has failed to provide the discovery responses or a

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signed authorization. (Doc. 33 at 1-2.) They contend that it is impossible for them to defend

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the claims or address the issues without the medical records. They argue that dismissal is

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appropriate based on Plaintiff’s prior correspondence with counsel and his failure to comply

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with the Order. (Id. at 2; ref. Doc. 30.) In the correspondence, Defendants enclosed a

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medical authorization and request for signature. Plaintiff responded that he “intend[s] to

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suffer dismissal of captioned case, for failure to comply with discovery procedures, in order

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to appeal—and thereby test the correctness of the Court’s failure to enter default.” (Doc. 30,

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Exs. 1,2.)

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Rule 37(b) sanctions may be issued if a party “fails to obey an order to provide or

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permit discovery, including an order under Rule 26(f), 35, or 37(a).” Dreith v. Nu Image,

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Inc., 648 F.3d 779, 787 (9th Cir. 2011) (quoting Federal Rule of Civil Procedure 37(b)(2)).

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Sanctions may be imposed as long as a party has “unequivocal notice that a court has asked

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that certain documents be produced.” Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg.

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Corp., 982 F.2d 363, 368 (9th Cir. 1992) (citing Henry v. Sneiders, 490 F.2d 315, 318 (9th

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Cir. 1974)). Rule 37(b)(2)(A)(v) specifically permits dismissing the action in whole or part

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as a sanction for failure to obey a discovery order or to permit discovery.

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The record demonstrates that Plaintiff had notice that the Court had ordered

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Plaintiff is exempted from the requirements of initial disclosure. Fed. R. Civ. P.
26(a)(1)(B)(iv).
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compliance with certain discovery requests, including complete responses to the request for

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production of documents and a signed authorization. (Doc. 31.) Plaintiff does not claim that

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he did not have notice; indeed, he fails to respond to the Motion to Dismiss, just as he failed

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to respond to the Motion to Compel. Plaintiff has put his medical condition at issue but

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refuses to authorize release of his medical records. The Court will grant the motion.

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn with respect to Defendants’
Motion to Dismiss (Doc. 33).
(2) Defendants’ Motion to Dismiss (Doc. 33) is granted.

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(3) This action is dismissed, and the Clerk of Court must enter judgment accordingly.

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DATED this 29th day of January, 2013.

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