Anderson v. Sheeks

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:20-cv-00143-MMD-WGC TYLER CHRISTIAN ANDERSON, 4 Order Plaintiff 5 Re: ECF No. 16 v. 6 C.O. SHEEKS, et. al., 7 Defendants 8

9 Defendants have filed a motion for an order to show cause why this case should not be 10 dismissed for failure to obey a court order because Plaintiff refused to participate in the court- 11 ordered Early Mediation Conference (EMC). (ECF No. 16.) 12 I. BACKGROUND 13 Plaintiff is an inmate incarcerated within the Nevada Department of Corrections 14 (NDOC), and is proceeding pro se with his civil rights action under 42 U.S.C. § 1983. The court 15 screened the amended complaint and allowed Plaintiff to proceed with an Eighth Amendment 16 excessive force claim against Sheeks, Morgan and Ortega, as well as a Fourteenth Amendment 17 due process claim against Sheeks, Morgan, Ortega and Carr in Count I. Plaintiff was also 18 allowed to proceed with an excessive force claim against Fryer and Inwood in Count II. (ECF 19 No. 8.) The court stayed the action for 90 days to give the parties an opportunity to settle their 20 dispute before the filing fee is paid, an answer is filed or the discovery process begins, and 21 referred the case to its Early Mediation Program. The court specifically instructed the parties that 22 if any party wanted to have this case excluded from the mediation program, the party must file a 23 1 motion to exclude the case from mediation within 21 days of the date of the screening order. (Id. 2 at 12.) 3 It appears that the screening order was returned as undeliverable as Plaintiff was 4 transferred to Ely State Prison (ESP). (ECF No. 9.) Plaintiff did not file a notice of change of

5 address as is required under Local Rule LR IA 3-1. 6 On August 3, 2021, the court entered an order setting the EMC for September 21, 2021, 7 at 8:30 a.m. (ECF No. 12.) The order was electronically served on Plaintiff via the Northern 8 Nevada Correctional Center (NNCC) law library, where he was previously housed. 9 The Minutes from the EMC on September 21, 2021, nevertheless, reflect that the 10 mediator was advised by a caseworker at ESP that the Plaintiff refused to attend the mediation. 11 (ECF No. 14.) Presumably, Plaintiff had notice of the EMC if he relayed to a caseworker that he 12 refused to attend. The minutes were sent to Plaintiff at ESP via email. (ECF No. 15.) 13 On September 24, 2021, Defendants filed this motion for an order to show cause, seeking 14 dismissal of this action due to Plaintiff’s refusal to attend the EMC. Defense counsel spent nine

15 hours preparing for the EMC. (Shogren Decl., ECF No. 16-1 at 2 ¶ 5.) 16 II. DISCUSSION 17 Preliminarily, a “pro se party must immediately file with the court written notification of 18 any change of mailing address, email address, telephone number, or facsimile number.” “Failure 19 to comply with this rule may result in dismissal of the action, entry of default judgment, or other 20 sanctions as deemed appropriate by the court.” LR IA 3-1. 21 Plaintiff has failed to comply with LR IA 3-1 by filing written notification of a change in 22 mailing address to ESP. 23 1 In addition, the court has the power to dismiss an action for failure to prosecute it or 2 comply with court rules or orders. See Fed. R. Civ. P. 41(b); Ash v. Cvetkov, 739 F.2d 493, 496 3 (9th Cir. 1984) (citation omitted); Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1965) (citation 4 omitted) (acknowledging court had power to dismiss under its local rule). An involuntary

5 dismissal under this rule (unless for lack of jurisdiction, improper venue, or failure to join a 6 party, which are not applicable here) operates as an adjudication on the merits. Fed. R. Civ. P. 7 41(b). 8 Federal Rule of Civil Procedure 16(f) also authorizes the court to sanction a party who 9 fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order. Fed. R. 10 Civ. P. 16(f)(1)(A), (C). Sanctions include, among other things, striking pleadings, staying 11 proceedings until the order is obeyed, dismissing the action or entering default judgment, or 12 treating the failure as contempt of court. Fed. R. Civ. P. 16(f), Fed. R. Civ. P. 37(b)(2)(A)(ii)- 13 (vii). 14 Here, defense counsel, and presumably the mediator, spent hours preparing for the EMC

15 in this case only to have Plaintiff fail to comply with the court’s order to participate without 16 filing a motion to exclude the case from mediation. Plaintiff could have notified the mediator, 17 court and defense counsel in advance, which would have avoided the waste of time and 18 resources. 19 Meaningful and productive settlement conferences are vital to the judicial process, and 20 provide the parties with an important vehicle to attempt to resolve their disputes short of trial. 21 The court takes these conferences very seriously. The Ninth Circuit has repeatedly upheld the 22 imposition of the sanction of dismissal for failure to comply with pretrial procedures mandated 23 by local rules and court orders, including the failure to appear for court-ordered mediation or settlement conferences. See Lucas Automotive Engineering, Inc. v. Bridgestone/Firestone, Inc., F.3d 762 (9th Cir. 2001) (affirming sanctions imposed for failure to attend a mediation session); Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990) (affirming sanctions for 4] attorney who failed to appear at scheduled settlement conference); Thompson v. Housing 5|| Authority of the City of Los Angeles, 782 F.2d 829 (9th Cir. 1986) (citing cases). While Plaintiff was not required to settle his case, he was required by court order to participate in the EMC. 7 As such, the court will grant Defendants’ motion for an order to show cause (ECF No. 8]| 16), and will require Plaintiff to show cause why this action should not be dismissed due to both Plaintiffs failure to file his updated contact information and his refusal to participate in the EMC. 1] IH. CONCLUSION 12 Defendants’ motion for an order to show cause (ECF No. 16) is GRANTED. Plaintiff 13]|has 14 days from the date of this Order to file a response showing cause as to why sanctions, 14]| which may include dismissal of this action, should not be imposed as a result of Plaintiff's failure to file his updated contact information and refusal to participate in the EMC. Plaintiff is 16]| cautioned that a failure to respond or give sufficient explanation for his failures may itself result 17] in a recommendation of the imposition of sanctions, including dismissal of this action. 18), IT IS SO ORDERED. Dated: October 14, 2021 G. Cott William G. Cobb 21 United States Magistrate Judge 22 23