Johnson v. Brady et al

Filing 89

ORDER - IT IS ORDERED: 1. This action is dismissed without prejudice. 2. Defendants' motion for summary judgment (Doc. 78 ) and Plaintiff's motions to stay (Docs. 85 , 88 ) are denied as moot. 3. The Clerk is directed to terminate this matter and enter judgment accordingly. (See document for full details). Signed by Judge David G Campbell on 2/16/16. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derrick Johnson, an individual,
Plaintiff,

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No. CV-14-01875-PHX-DGC
ORDER

v.
Officer Robert Brady, et al.,
Defendants.

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Plaintiff filed a pro se complaint against Defendants on August 22, 2014. Doc. 1.

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On October 10, 2014, Defendants La Paz County, La Paz County Board of Supervisors,

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County Attorney Rogers, and County Public Defender Puchek filed a motion to dismiss.

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Doc. 11. On November 4, 2014, Defendants Brady, Newton, and the Town of Quartzsite

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filed a motion to dismiss. Doc. 20. On November 7, 2014, Defendant Samuel Vederman

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filed a motion to dismiss. Doc. 22. The Court entered an order on January 28, 2015

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dismissing Plaintiff’s complaint: (1) in part against Defendants Brady, Newton, and the

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Town of Quartzsite; (2) entirely as to Defendants Vederman, Rogers, Puchek, La Paz

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County, and La Paz County Board of Supervisors; (3) with prejudice against Defendants

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Vederman and Rogers; and (4) with prejudice as to Plaintiff’s § 1983 claim against

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Defendant Puchek. Doc. 37. Plaintiff was ordered to file an amended complaint by

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March 16, 2015. Id. at 17.

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Plaintiff failed to notify the Court of his change of address, and mail was returned

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to the Court on February 12 and 23, 2015. Docs. 40, 41. The Court granted Plaintiff

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additional time to file an amended complaint, extending the deadline to May 1, 2015.

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Doc. 43. Plaintiff filed an amended complaint on April 24, 2015. Doc. 44. Defendants

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filed motions to dismiss the amended complaint. Docs. 49, 50, 51. On June 17, 2015, the

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Court dismissed with prejudice Plaintiff’s amended allegations against Defendants

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Vederman, Rogers, Puchek, Welch, Town of Quartzsite, La Paz County, and La Paz

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County Board of Supervisors. Doc. 65. Only Defendants Brady and Newton remained.

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On June 1, 2015, Plaintiff filed an interlocutory appeal (Doc. 62), which was

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dismissed for lack of jurisdiction by the Ninth Circuit Court of Appeals on November 2,

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2015 (Doc. 74-2).

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On November 20, 2015 Defendants Brady and Newton filed a motion for

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summary judgment. Doc. 78. Once again, Plaintiff failed to file a notice of change of

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address with the Court and mail was returned to this Court as undeliverable. Docs. 81,

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82. On January 6, 2016, the Court issued an order giving Plaintiff until January 22, 2016

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to file a response to Defendants’ motion for summary judgment. Doc. 83. Plaintiff has

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failed to comply with that order and respond to the motion within the time limit set forth

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in the Federal Rules of Civil Procedure. For reasons stated below, the Court will dismiss

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this action without prejudice.

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The Court explicitly warned Plaintiff that, even though he is proceeding pro se, he

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is still required to follow the Federal Rules of Civil Procedure and the Court’s Local

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Rules of Civil Procedure in prosecuting his case. See Docs. 25, 37, 65, 83. The Court

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cautioned Plaintiff that his case could be dismissed for his failure to respond to motions

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filed by opposing parties or for his failure to follow court orders. See id. Plaintiff was

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further warned that if he failed to prosecute this action, or if he failed to comply with

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the rules or any Court order, the Court may dismiss the action with prejudice pursuant to

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Rule 41(b) of the Federal Rules of Civil Procedure. See, e.g., Doc. 65 at 9 (citing

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, 46 F.3d 52,
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54 (9th Cir. 1995)).

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Before dismissing a case for failure to prosecute or failure to comply with the rules

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or an order, the Court must weigh five factors: (1) the public’s interest in expeditious

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resolution of litigation, (2) the Court’s need to manage its docket, (3) the risk of prejudice

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to the defendants, (4) the public policy favoring disposition of cases on their merits, and

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(5) the availability of less drastic sanctions. See Ghazali, 46 F.3d at 53 (citing Henderson

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v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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The factors favor dismissal. Plaintiff filed this suit more than 18 months ago.

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Doc. 1. He was served with the motion for summary judgment on November 20, 2015.

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He has had nearly three months to respond to the motion, but has failed to do so.

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Because the Court and the public have a strong interest in judicial efficiency and the

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prompt resolution of litigation, Plaintiff’s failure to prosecute this action weighs in favor

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of dismissal. The risk of prejudice to Defendants also weighs in favor of dismissal.

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Defendants who are forced to incur expenses and defend themselves in court are

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prejudiced by a plaintiff’s failure to respond to motions or to prosecute the case in a

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timely and efficient manner. Such is the case here, with the remaining Defendants. The

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fourth factor, as always, weighs against dismissal. As for the fifth factor, the Court

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concludes that a dismissal with prejudice would be unduly harsh. Dismissal without

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prejudice is, however, an appropriate alternative sanction.

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analysis favors dismissal. See Ghazali, 46 F.3d at 53. The Court, therefore, will dismiss

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this action without prejudice for Plaintiff’s failure to prosecute, his failure to follow the

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applicable rules, and his failure to comply with the Court’s orders, including its January

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6, 2016 order (Doc. 83).

The overall five-factor

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IT IS ORDERED:

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1.

This action is dismissed without prejudice.

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2.

Defendants’ motion for summary judgment (Doc. 78) and Plaintiff’s

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motions to stay (Docs. 85, 88) are denied as moot.

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The Clerk is directed to terminate this matter and enter judgment

accordingly.
Dated this 16th day of February, 2016.

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