Cave v. Norris et al

Filing 89

ORDER granting in part and denying in part 83 Defendant Shah's Motion for Sanctions; granting 85 Defendant Shah's Motion to Dismiss. This action is DISMISSED WITH PREJUDICE. Each party will bear their own costs. In addition, the Court certifies that an appeal in this action will not be taken ingood faith. 28 U.S.C. § 1915(a)(3). Signed by Magistrate Judge Beth Deere on 1/8/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION M I C H A E L CAVE V. L A R R Y NORRIS, et al. No. 5:07CV00266-BD DEFENDANTS PLAINTIFF ORDER P lain tiff Michael Cave filed the Complaint (docket entry #2) in this matter while inca rce rate d in the Arkansas Department of Correction. On November 6, 2007, the Court g ra n te d Plaintiff's request to proceed in forma pauperis and notified Plaintiff of his re s p o n s ib ility to comply with Court Orders under Local Rule 5.5(c)(2). On October 7, 2008, the Court ordered Plaintiff to submit an updated application to proceed in forma pauperis (#69) since he was no longer incarcerated. Plaintiff failed to submit the updated application within the time provided by the Court. On November 1 7 , 2008, the Court again ordered that Plaintiff submit an updated application to proceed in forma pauperis and show cause why this action should not be dismissed for failure to c o m p ly with Local Rule 5.5(c)(2). Plaintiff was specifically warned that failure to re sp o n d to this Court's order could result in dismissal of this action. Plaintiff was p ro v id e d thirty (30) days to comply with the Court's November 17, 2008 Order. Plaintiff h as not responded to this Court's Order. D e f en d a n t Shah has now filed a Second Motion for Sanctions (#83) and a Motion to Dismiss (#85). Defendant Shah argues that Plaintiff's case should be dismissed for f a ilu re to comply with the Court's Orders of October 7, 2008 and November 17, 2008. The Court agrees. Although Plaintiff has filed other pleadings with the Court, he has f a ile d to provide the court an updated application to proceed in forma pauperis, and th e re f o re , has failed to comply with this Court's Order.1 Defendant Shah's Motion to D ism iss (#85) is GRANTED. Accordingly, Plaintiff's claims are dismissed for failure to c o m p ly with the Court's Orders of October 7, 2008 (#69) and November 17, 2008 (#76). The Court will GRANT in part, and DENY in part, Defendant Shah's Second M o tio n for Sanctions (#83). Although the Court has the authority to assess costs for P lain tiff 's failure to attend two scheduled depositions in this matter, the Court declines to d o so. Instead, the Court will sanction Plaintiff by dismissing this action with prejudice. Plaintiff has failed to comply with two Court Orders (#69, #76) in this matter. In a d d itio n , he has exhibited a pattern of intentional delay by refusing to attend two s c h e d u le d depositions. See Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th C ir.2 0 0 0 ) (dismissal with prejudice should be used only in cases of willful disobedience o f a court order or where a litigant exhibits a pattern of intentional delay). Plaintiff failed to attend the scheduled second deposition even after he was cautioned regarding this c o n d u c t (#78). Plaintiff's actions warrant sanction. On December 10, 2008, Plaintiff filed a Motion for Ruling Regarding Subpoena fo r Plaintiff's Deposition (#80) and a Motion to Appoint Counsel (#81). 2 1 T h e assessment of costs for failing to show up at his scheduled deposition might im p o se an undue burden on Plaintiff. Dismissal of this action with prejudice, however, is a p p ro p ria te . Accordingly, Defendant Shah's Motion to Dismiss (#85) is GRANTED, and h is Second Motion for Sanctions (#83) is GRANTED in part, and DENIED in part. This action is DISMISSED WITH PREJUDICE. Each party will bear their own c o sts . In addition, the Court certifies that an appeal in this action will not be taken in g o o d faith. 28 U.S.C. 1915(a)(3). IT IS SO ORDERED this 8th day of January, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 3

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