Antoine Lavelle Simmons v. Ryan Thornell, et al.

Opinion

1 2

DISTRICT OF ARIZONA 7 Antoine Lavelle Simmons, 8 Plaintiff CV-23-1620-PHX-DJH (JFM) -vs- 9 Ryan Thornell, et al., Defendants. Report & Recommendation 10 11 This matter is before the undersigned magistrate judge on referral for pretrial 12 proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this 13 matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report 14 & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B). 15 Background – On August 10, 2023 Plaintiff filed a pro se Prisoner Civil Rights 16 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) raising various claims. In post-screening 17 Count 7, Plaintiff asserts an Eight Amendment sexual assault claim against Defendant 18 Sanchez. (See Screening Order 2/22/24, Doc. 15.) 19 On June 4, 2024, the Court issued a Scheduling Order pursuant to Federal Rule of 20 Civil Procedure 16(b), which inter alia directed the parties to file independent case 21 management reports (ICMR) by June 25, 2024. (Order 6/4/24, Doc. 23 at 8, ¶ 4.1.) That 22 Order cautioned:

23 Failure to comply with this procedure for independent case management reports can result in sanctions, up to and including 24 dismissal of this action. See Fed. R. Civ. Proc. 16(f) 25 (Order 6/24/24, Doc. 23 at 9, ¶ 4.5.) 26 Plaintiff did not comply, and on July 3, 2024 Plaintiff was given through July 16, 27 2024 to either comply or file a response showing cause why sanctions should not be 1 should not be dismissed for failure to comply with the Court's orders and failure to 2 prosecute. (Order 7/3/24, Doc. 29.) Plaintiff has neither filed his ICMR, nor shown cause 3 for his failure to do so. 4 Plaintiff’s Failures - The undersigned finds that Plaintiff has failed to comply with 5 the Court’s orders to: (1) file his ICMR; and (2) respond to the Order to Show Cause. 6 Moreover, because these failings reflect not defects in adherence, but a failure to adhere 7 by performing specific actions necessary to the prosecution of the case, the undersigned 8 finds that Plaintiff has failed to prosecute this case. 9 Failure to Comply With Orders –Federal Rule of Civil Procedure 16(f) provides:

10 (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a 11 party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; 12 (B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or 13 (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other 14 sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because 15 of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of 16 expenses unjust. 17 Fed. R. Civ. P. 16(f). The referenced sanctions include:

18 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated 19 matters in evidence; (iii) striking pleadings in whole or in part; 20 (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; 21 (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except 22 an order to submit to a physical or mental examination. 23 Fed. R. Civ. P. 37(b)(2)(A).1 24 Rule 37(b)(2)(A)(v) permits as a sanction “dismissing the action or proceeding in 25

26 1 Rule 37(f) also provides that “[i]f a party or its attorney fails to participate in good faith 27 in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to 1 whole or in part.” Such a sanction, if justified, is appropriate for failure to participate in 2 pretrial planning as ordered. See Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 3 2007). 4 The Ninth Circuit has adopted a multi-factor analysis for applying such a sanction:

5 We have constructed a five-part test, with three subparts to the fifth part, to determine whether a case-dispositive sanction under Rule 6 37(b)(2) is just: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of 7 prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 8 of less drastic sanctions.” The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and 9 whether it warned the recalcitrant party about the possibility of case- dispositive sanctions. This “test” is not mechanical. It provides the 10 district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court 11 must follow. 12 Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th 13 Cir. 2007). "The first two of these factors favor the imposition of sanctions in most cases, 14 while the fourth factor cuts against a default or dismissal sanction. Thus the key factors 15 are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 16 656 (9th Cir. 1990). 17 Failure to Prosecute - Moreover, Plaintiff has the general duty to prosecute this 18 case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 19 (9th Cir. 1978). See also Fed. R. Civ. P. 41(b) (dismissal for failure to prosecute); Link v. 20 Wabash R. Co., 370 U.S. 626, 630 (1962) (authority of a court to dismiss sua sponte under 21 Rule 41(b) for lack of prosecution); and Ferdik v. Bonzelet, 963 F.2d 1258, 1260-1261 (9th 22 Cir. 1992) (a district court may dismiss an action for failure to comply with any order of 23 the Court). 24 In determining whether Plaintiff's failure to prosecute warrants dismissal of the 25 case, the Court must weigh the same five factors relevant to a dismissal under Rule 26 37(b)(2)(A)(v), i.e.: "(1) the public's interest in expeditious resolution of litigation; (2) the 27 court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 1 sanctions." Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 2 (9th Cir. 1986)). "The first two of these factors favor the imposition of sanctions in most 3 cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key 4 factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 5 652, 656 (9th Cir. 1990). 6 Dismissal is Appropriate Sanction - Here, the first (expeditiousness), second 7 (management), and third (prejudice) factors favor dismissal of this case. Plaintiff's failure 8 to participate in the discovery planning process and failure to respond to the Court’s Order 9 to Show Cause indicate that Plaintiff is content to let the case languish and/or be dismissed. 10 The same things prevent this Court from effectively managing its docket. 11 The fourth factor (merits decision), as always, weighs against dismissal. 12 The fifth factor (alternatives) requires the Court to consider whether a less drastic 13 alternative is available, attempted, and has the party was warned. Plaintiff was warned in 14 the Scheduling Order and the Order to Show Cause about the risk of dismissal, and the 15 latter sought Plaintiff’s explanation to permit an attempt to address matters necessary to 16 moving the case forward. Plaintiff’s in forma pauperis status and unwillingness to even 17 respond to the Court, and the pervasive impact of his failure to participate in the planning 18 process, indicate that meaningful sanctions less drastic than dismissal are not available. 19 For example, monetary sanctions will likely be unenforceable, partial limitations in 20 evidence or claims would be arbitrary and would likely result in evisceration of the claims. 21 The undersigned concludes that only one less drastic sanction is realistically 22 available. In the instant case, and in the absence of a showing that Plaintiff’s actions are 23 the result of an intent to obtain unfair advantage (as opposed to simply abandoning the 24 case) the undersigned finds that a dismissal with prejudice would be unnecessarily harsh. 25 This action should therefore be dismissed without prejudice. 26 IT IS THEREFORE RECOMMENDED: 27 (A) The reference of this case to the magistrate judge be WITHDRAWN. 1 be DISMISSED WITHOUT PREJUDICE. 2 || (C) The Clerk of the Court be directed to enter judgment accordingly. 3 5 This recommendation is not an order that is immediately appealable to the Ninth 6 || Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 7 || Appellate Procedure, should not be filed until entry of the district court's judgment. 8 However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall 9 || have fourteen (14) days from the date of service of a copy of this recommendation within || which to file specific written objections with the Court. Thereafter, the parties have 11 || fourteen (14) days within which to file a response to the objections. Failure to timely file 12 || objections to any findings or recommendations of the Magistrate Judge will be considered 13 || a waiver of a party's right to de novo consideration of the issues, see United States v. 14 || Reyna-Tapia, 328 F.3d 1114, 1121 (9" Cir. 2003)(en banc), and will constitute a waiver 15 || of a party's right to appellate review of the findings of fact in an order or judgment entered 16 || pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 17 || 1146-47 (9th Cir. 2007).

|| Dated: July 22, 2024 James F. Metcalf 25-1620; RR 2407 22 □□ FTP ICMR docx United States Magistrate Judge 20 21 22 23 24 25 26 27 28