Garcia v. Glendale Police Department et al

Filing 138

ORDER, Defendant's Motion to Dismiss for Lack of Prosecution 119 is granted; this case is dismissed without prejudice; Plaintiff shall take nothing; the Clerk shall enter judgment accordingly and close this case; all relief sought by Plaintiff in his Response 133 is denied without prejudice to Plaintiff seeking his requested relief in the appropriate forum; all remaining motions 60 , 94 , 95 , 98 , 110 , 116 , 120 , 123 , 124 , 125 , 129 , 130 , 131 , 132 , 134 , 137 are denied as moot. Signed by Senior Judge James A Teilborg on 3/10/14. (REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert A. Garcia,
No. CV 11-02260-PHX-JAT

10

Plaintiff,

11

v.

12

Glendale Police Department, et al.,

ORDER

13

Defendants.

14
15

Pending before the Court is sole remaining Defendant Robert Solomon’s Motion to
Dismiss pro se Plaintiff’s complaint for failure to prosecute pursuant to Federal Rule of

16

Civil Procedure 41(b).1 (Doc. 119). Defendant alleges that, in contravention of the

17

Court’s previous Order (Doc. 69), Plaintiff has again2 refused to confer or communicate

18

with Defendant’s counsel to craft and file various joint pretrial materials. (Doc. 119 at 2–

19

3; see Plaintiff’s January 10, 2010 “Notice of Incommunicada” [sic], Doc. 104

20

(proclaiming that Plaintiff—who is incarcerated—will no longer send, sign for, or accept

21

mail)).

22
23
24

On February 10, 2014, the Court ordered Plaintiff to respond to Defendant’s
motion and explained that

25

The Court has previously warned Plaintiff that his failure to follow
the Court’s Orders and participate in his case is grounds for dismissal.
(Doc. 17 at 10 (“If Plaintiff fails to timely comply with every provision of

26

1

27
28

Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b).
2

(See Doc. 65; Doc. 119 at 2).

1
2
3
4

this Order, including these warnings, the Court may dismiss this action
without further notice.”); Doc. 65 at 2 (“Plaintiff has disregarded the Court’s
order warning him of the consequences of failing to timely respond. The
Court will give Plaintiff one further opportunity to proceed to trial including
complying with all requirements of this Court. In particular, Plaintiff must
comply with a new final pretrial order setting the Final Pretrial Conference
that will follow.”) (emphasis added)). Consequently, the Court is inclined to
grant Defendant’s Motion.

5
6
7
8
9
10
11
12
13

However, Dismissal for failure to prosecute is a “harsh penalty and is
to be imposed only in extreme circumstances.” Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986). Before dismissing Plaintiff’s case, the
Court must weigh several factors: “(1) the public’s interest in expeditious
resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
of prejudice to the defendants; (4) the public policy favoring disposition of
cases on their merits, and (5) the availability of less drastic sanctions.” Id.
(citing Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984); Mir v. Fosburg,
706 F.2d 916, 918 (9th Cir. 1983)). Consequently, the Court will permit
Plaintiff an opportunity to respond to Defendant’s motion. Plaintiff is
cautioned that if he fails to timely respond pursuant to this Order, the Court
may dismiss this action without further notice.
(Doc. 128). On February 19, 2014, Plaintiff filed a timely Response (Doc. 133) and
Defendant has filed a Reply (Doc. 136).

14

In Response,3 Plaintiff fails to address the Henderson factors for dismissal for

15

failure to prosecute. (Doc. 133 at 2–10). Instead, Plaintiff argues that dismissing his case

16

for failure to prosecute is unfair because his continued attempts to mail correspondence to

17

Defendant are denied by prison officials. (Id. at 4, 6–7). However, Plaintiff admits that

18

prison officials are only denying his outgoing mail privileges in response to Plaintiff’s

19

refusal to sign for incoming and outgoing mail. (Id. at 4, 7). Indeed, Plaintiff spends the

20
3

21
22
23
24
25
26
27
28

Plaintiff’s 277-page Response contains 9 pages of argument (Doc. 133 at 2–10)
and 267 pages constituting 6 exhibits that purportedly support Plaintiff’s arguments (id. at
11–20; Docs. 133-1 to -7). However, 231 of these 267 pages constitute “Exhibit One” and
appear to be copies of Plaintiff’s irrelevant internal Arizona Department of Corrections
(“ADOC”) grievance reports filed by Plaintiff during the preceding year and ADOC’s
responses to same. (See Ex. 1, Doc. 133 at 11 through Doc. 133-6 at 34). The remaining
36 pages include (1) the first page of the Court’s first Order Setting a Final Pretrial
conference (Doc. 69) (Ex. 2, Doc. 133-6 at 36); (2) a February 12, 2014 ADOC denial of
additional legal supplies to Plaintiff (Ex. 3, Doc. 133-6 at 38); (3) three pages from old
pleadings that Plaintiff claims demonstrate that the City of Glendale remains a party in
this case (Ex. 4, Doc. 133-6 at 40–42) (the City of Glendale was dismissed as a party on
April 9, 2012 (see Doc. 12)); (4) a copy of Plaintiff’s previous Motion for Judgment
Against Defendant for Not Conferring and Bad Faith (Doc. 120) (Ex. 5, Doc. 133-6 at 44–
45 to Doc. 133-7 at 1); and (5) four pages purporting to list the various other court
proceedings Plaintiff has been involved in during 2011 and 2012 (Ex. 6, 133-7 at 3–7).
-2-

1

majority of his Response repeatedly affirming his continued intent to remain

2

“incommunicada [sic]” (see Doc. 104) by refusing mail deliveries on the grounds that

3

prison officials “tamper” with his mail by opening it and requiring that he sign for

4

incoming and outgoing mail. (Doc. 133 at 2–7). Consequently, Plaintiff’s proffered

5

explanation for his failure to litigate this case is not a proper or valid response.

6

A plaintiff’s improper or invalid response to a motion to dismiss can be grounds for

7

granting the motion to dismiss. See, e.g., Camper v. Potter, No. CV-07-2251-PHX-GMS,

8
9
10
11
12

2009 WL 2714023, at *6 (D. Ariz. Aug. 27, 2009) (deeming a plaintiff’s submission of
hundreds of pages of irrelevant material and failure to address the merits of the
defendant’s argument “as a consent to the granting of the motion” to dismiss).
Nonetheless, because dismissal for failure to prosecute is a “harsh penalty and is to be
imposed only in extreme circumstances,” Henderson, 779 F.2d at 1423, the Court will
consider the merits of each of the five Henderson factors, in turn.

13
14
15
16
17

First, “the public’s interest in expeditious resolution of litigation,” id., favors
dismissal. Plaintiff filed the Complaint on November 15, 2011 (Doc. 1) and, but for
Plaintiff’s refusals to communicate with Defendant, the trial would have occurred several
months ago (see Doc. 61 (vacating an October 2, 2013 Final Pretrial Conference)).
Moreover, Plaintiff’s current refusal to communicate with Defendant has needlessly

18

extended the length of the proceedings far beyond a contemplated March 2014 trial date.

19

(See Doc. 128 (vacating a February 19, 2014 Final Pretrial Conference)).

20

Second, “the court’s need to manage its docket,” Henderson, 779 F.2d at 1423,

21

favors dismissal.

22

significant judicial resources examining voluminous and largely irrelevant filings

23

unrelated to Plaintiff’s core complaint and cause of action. (See, e.g., Docs. 59, 64, 119,

24

133, 136).

25

Plaintiff’s failure to prosecute has required the Court to expend

Third, “the risk of prejudice to the defendants,” Henderson, 779 F.2d at 1423,

26

favors dismissal.

Plaintiff’s failure to prosecute has already forced Defendant to

27

needlessly prepare for trial twice and incur several months of otherwise unnecessary legal

28
-3-

1

fees. Allowing Plaintiff a third attempt to proceed to trial would harm Defendant by

2

further prolonging this litigation and increasing Defendant’s legal fees and costs.

3

Fourth, “the public policy favoring disposition of cases on their merits,” id., neither

4

favors nor disfavors dismissal.

5

prejudice, then public policy would be offended because Plaintiff would be precluded

6

from prosecuting his claims at a later date if he so desired. If the Court were to dismiss

7

Plaintiff’s claims without prejudice, however, then the adjudication would not be on the

8
9
10
11
12

If the Court were to dismiss Plaintiff’s claims with

merits and public policy would not disfavor dismissal.
Fifth, “the availability of less drastic sanctions,” id., favors dismissal. Here,
Plaintiff has been repeatedly warned that he must comply with all Court Orders, including
the Court’s Order that he communicate with Defendant in order to prosecute his case.
(Doc. 17 at 10; Doc. 65 at 2; see Docs. 52, 69 (setting Final Pretrial Conferences)).
Further, Plaintiff has been explicitly warned that failing to prosecute his case could result

13
14
15
16
17

in dismissal. (Doc. 17 at 10; Doc. 65 at 2). Nonetheless, by refusing to communicate
with Defendant, Plaintiff has again compelled the Court to vacate a Final Pretrial
Conference.

(Doc. 128).

The Court finds that a less drastic sanction, such as an

additional warning, is unlikely to have any effect on Plaintiff.
In sum, Henderson factors one, two, three, and five favor dismissal and factor four

18

does not disfavor dismissal without prejudice. Thus, in the aggregate, the Henderson

19

factors militate in favor of a dismissal without prejudice for failure to prosecute.

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28

//
-4-

1

Accordingly,

2

IT IS ORDERED that Defendant’s Motion to Dismiss for Lack of Prosecution

3

(Doc. 119) is GRANTED. This case is dismissed without prejudice; Plaintiff shall take

4

nothing. The Clerk of the Court shall enter judgment accordingly and close this case.

5

IT IS FURTHER ORDERED that all relief sought by Plaintiff in his Response

6

(Doc. 133) is DENIED without prejudice to Plaintiff seeking his requested relief in the

7

appropriate forum.

8
9
10

IT IS FINALLY ORDERED that all remaining motions (Docs. 60, 94, 95, 98,
110, 116, 120, 123, 124, 125, 129, 130, 131, 132, 134, 137) are DENIED as moot.
Dated this 10th day of March, 2014.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-