Opinion
CIVIL ACTION NO. 3:13-cv-01631
04-13-2015
CHADRICK WRIGHT v. CITY OF TALLULAH, ET AL
JUDGE ROBERT G. JAMES
REPORT AND RECOMMENDATION
Before the undersigned Magistrate Judge, on reference from the District Court, is a Motion to Dismiss, [doc. # 80], filed by Defendants City of Tallulah, James Vaughn, and Larry Guy. Plaintiff does not oppose the Motion. For reasons set forth below, it is recommended that the Motion be GRANTED.
Defendants style their Motion as a "Motion for Protective Order," but they seek dismissal. [doc. #s 80, 80-1, 80-3].
Background
On June 12, 2013, Plaintiff Chadrick Wright, via counsel, filed suit against Defendants under 42 U.S.C. § 1983 and asserted claims of excessive force, false arrest, and false imprisonment without legal process. [doc. # 1]. Defendants filed the instant Motion on February 23, 2015. [doc. # 80]. They ask the Court, inter alia, to dismiss Plaintiff's case because Plaintiff failed to provide any expert reports, failed to appear at his deposition, and failed to respond to their second set of discovery requests. [doc. # 80-1, p. 7]. The deadline for responding to the instant Motion has passed, and Plaintiff has yet to respond or seek an extension of time in which to do so; thus, the Motion is deemed unopposed. [See doc. # 81].
On February 27, 2015, Plaintiff's counsel moved to withdraw from the case because, despite numerous phone calls and mailings, he was unable to contact Plaintiff. [doc. # 82]. On March 4, 2015, the Court permitted counsel to withdraw and ordered Plaintiff, within thirty (30) days, to either enroll new counsel or notify the Court in writing of his intent to represent himself. [doc. # 85]. The Court cautioned that failure to comply could lead to sanctions, including dismissal of the lawsuit. Id. The Clerk of Court attempted to mail Plaintiff a copy of the Order on the same date, but the United States Postal Service returned the mailing, noting that it was "not deliverable as addressed." [doc. # 86, p. 1]. Thirty days have passed, and Plaintiff has not enrolled counsel, notified the Court of his intent to proceed pro se, or provided updated contact information.
Law and Analysis
Federal Rule of Civil Procedure 16(f)(1) provides for the imposition of sanctions, including sanctions authorized under Rule 37(b)(2)(A)(ii)-(vii), if a party fails to obey a scheduling order. Relatedly, Rule 37(d) provides for sanctions under Rule 37(b)(2)(A)(i)-(vi) if a party fails to attend his own deposition, fails to answer interrogatories, or fails to respond to a request for inspection. Rule 37(b)(2)(A)(v), in turn, provides for dismissal of an action in whole or in part.
In addition, Federal Rule of Civil Procedure 41(b) states 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) (in pertinent part). Similarly, Local Rule 41.3 states that "[t]he failure of . . . a pro se litigant to promptly notify the court in writing of an address change may be considered cause for dismissal for failure to prosecute when a notice is returned to the court for the reason of an incorrect address and no correction is made to the address for a period of 30 days." Ultimately, exercise of the power to dismiss is committed to the sound discretion of the district courts. Lopez v. Aransas Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978).
Here, dismissal is warranted. It is undisputed that Plaintiff failed to attend his deposition, failed to provide expert reports, and failed to respond to Defendants' second set of discovery requests. In addition, Plaintiff failed to enroll new counsel or notify the Court of his intent to proceed pro se, and he failed to provide the Court with a new address, telephone number, or other means of contact. He has prevented the Court, as well as Defendants, from communicating with him and expediting the resolution of this proceeding. Apparently, Plaintiff has lost interest in pursuing this lawsuit.
The deadline for completing discovery has passed. [doc # 79].
To the extent that the applicable statute of limitations may bar plaintiff from re-filing the instant suit, then dismissal at this juncture will effectively constitute dismissal "with prejudice," - "an extreme sanction that deprives the litigant of the opportunity to pursue his claim." Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992) (internal quotations omitted). Dismissal with prejudice is only "appropriate where there is a clear record of delay or contumacious conduct by the plaintiff . . . and when lesser sanctions would not serve the best interests of justice." Bryson v. U.S., 553 F.3d 402, 403 (5th Cir. 2008) (citation and internal quotation marks omitted). Generally, a court must find one or more of the following aggravating factors to dismiss an action with prejudice: (1) delay attributable to the plaintiff, not to his attorney; (2) actual prejudice to the defendant; and (3) delay caused by intentional misconduct. Berry, 975 F.2d at 1191.
The requirements for dismissal with prejudice are satisfied here. As discussed above, Plaintiff has ignored the Court's Scheduling Order, failed to cooperate in discovery, and failed to provide current contact information. In so doing, he has substantially prejudiced Defendants' ability to defend against his allegations. As he is proceeding pro se, he is solely responsible for his conduct. Since Plaintiff is proceeding in forma pauperis, it is unlikely that he enjoys sufficient means to fund an alternative monetary sanction. Moreover, dismissal with prejudice may be the least sanction where, as here, there is every indication that Plaintiff no longer wishes to pursue his cause of action. Finally, Plaintiff's unrepentant flaunting of Court orders reflects his own contumaciousness or "stubborn resistance to authority" which is personally attributable to him as an unrepresented litigant.
See Brown v. Oil States Skagit Smatco, 664 F.3d 71, 78 n.2 (5th Cir. 2011) (noting that a court may consider a plaintiff's IFP status in determining that a monetary sanction would not be an appropriate and effective sanction).
This Report and Recommendation provides Plaintiff with further notice of his non-compliance.
"The right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law." Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).
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Conclusion
For the reasons stated above, IT IS RECOMMENDED that Defendants' Motion to Dismiss, [doc. # 80], be GRANTED and that Plaintiff's Complaint, [doc. # 1], be DISMISSED WITH PREJUDICE in accordance with Federal Rules of Civil Procedure 16(f), 37(d), and 41(b).
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by this Recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the District Judge at the time of filing. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.
A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.
In Chambers, Monroe, Louisiana, this 13th day of April, 2015.
/s/_________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE