United States District Court, Northern District of California
January 14, 2003
DEMPSEY LEE WILLIAMS, JR., PLAINTIFF,
STATE OF CALIFORNIA; ET AL., DEFENDANTS
The opinion of the court was delivered by: Elizabeth D. Laporte, United States Magistrate Judge.
This action is dismissed for plaintiffs failure to comply with the court orders and failure to prosecute.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
On December 9, 2002, the court issued an Order To Show Cause Re. Failure To Prosecute ("OSC") because plaintiff twice failed to participate in the preparation of joint pretrial conference materials and twice failed to file a pretrial conference statement in violation of court orders. The OSC noted that "[p]laintiff's failure to prepare for the pretrial conference appears to be part of a pattern of ignoring his duties in this action." OSC, p. 1. Plaintiff was ordered to file a written response showing cause why this action should not be dismissed for failure to prosecute and failure to comply with the court's orders. Plaintiff filed a half-page "Motion For Cause" on December 18, 2002 in which he responded to the OSC by stating that the prison mail service was inadequate and that he had in fact filed the pretrial conference statement by the due date. The case is now before the court for consideration of plaintiff's response to the OSC.
Plaintiff's failure to participate in the preparation of joint pretrial conference materials and failure to file a pretrial conference statement by the deadline were not his first missed obligations in this action. In order to understand the nature of the problem and determine the appropriate course of action at this time, the court discusses the various failings of plaintiff throughout the pendency of this case.
Plaintiff repeatedly changed his address and often failed to promptly notify the court and opposing counsel of such address changes, making the management of this case much more difficult. Plaintiff has been in and out of custody frequently, as the following time-line shows:
April 20, 2000 Complaint mailed from S.F. County Jail on Bryant St. in San Francisco.
August 1, 2000 Amended complaint mailed from S.F. County Jail in San Bruno.
Plaintiff did not notify court of this address change.
September 19, 2000 Plaintiff filed notice of change of address to San Quentin State Prison
and asked that mail be sent to him in custody and at his home on Eddy
Street in San Francisco. Plaintiff did not notify court of his release
April 13, 2001 Plaintiff filed notice of change of address to San Quentin State Prison.
April 27, 2001 Plaintiff filed notice of change of address to Eddy Street.
April 10, 2002 Plaintiff was released from custody. Plaintiff had not informed the court
that he had returned to custody earlier and did not inform the court of
this release from custody until his statement at the June 25, 2002 case
April 30, 2002 Plaintiff filed notice of change of address to San Quentin State Prison.
September 20, 2002 Court learns from defendants' pretrial statement that plaintiff had been
rearrested in August 2002. Plaintiff had not notified the court of his
release from San Quentin after April 30, 2002 and had not notified the
court of his return to prison in August 2002.
December 18, 2002 Plaintiff filed notice of change of address to Ed4y Street.
Plaintiff's returns to custody were not due to forces beyond his control but were instead for his parole violations. The problem was not so much the repeated address changes as it was the plaintiff's failure to promptly inform the court and opposing counsel of those changes. The court and opposing counsel repeatedly spent time and effort addressing problems caused by plaintiff's failure to keep the court and opposing counsel informed of his current address. Not all of the problems in this case can be attributed to confusion about plaintiff's address, however.
Plaintiff failed to file an opposition to defendants' motion for summary judgment, despite extensions of time to do so. The original deadline for plaintiff to file his opposition was May 4, 2001. He did not file an opposition by that date but did request appointment of counsel. The court denied the request for appointment of counsel and gave plaintiff the benefit of the doubt that perhaps he thought counsel would be appointed and plaintiff would not personally need to prepare an opposition to defendants' motion; the court extended the deadline until August 1, 2001 for plaintiff to file his opposition. See May 8, 2001 Order. Plaintiff did not file his opposition by the extended deadline but instead asked for another extension of time because he had not received the moving papers from defendants. The court noted that plaintiff might not have received the motion because of his repeated address changes and extended the deadline for plaintiff to file an opposition to June 12, 2001. See June 7, 2001 Order. Plaintiff still did not bother to oppose the motion for summary judgment.*fn1 Even though he did not bother to oppose the motion, time and energy of the court and opposing counsel were consumed by plaintiffs acts and omissions: the court issued two orders granting extensions of time for plaintiff to file an opposition brief he did not bother to file and opposing counsel sent a second set of moving papers to plaintiff and inquired with the court to see if an opposition had been filed because he had not received one.
Plaintiff did not file a case management conference statement before the February 26, 2002 case management conference, in violation of the court's order to do so. See January 29, 2002 Order Denying Defendants' Motion For Summary Judgment, p. 8 (setting deadlines). That impeded the court's ability to conduct a useful case management conference.
Plaintiff did not timely appear for the case management conference on February 25, 2002. The court held an abbreviated telephonic case management conference with defense counsel in plaintiff's absence and issued an order to show cause regarding plaintiff's non-appearance. Plaintiff called the court shortly thereafter that day and the court contacted defense counsel and held the conference again. Plaintiff's tardiness wasted time for the court and opposing counsel.
Plaintiff filed two motions to compel discovery in March 2002, both of which were denied because plaintiff failed to serve a copy of the motions on defense counsel. See April 22, 2002 Order Denying Plaintiff's Discovery Requests. The court explained that the failure to serve defense counsel with the motions violated Local Rule 5-6(a) as well as the Order of Service. While a pro se litigant is afforded some leeway because he might not be aware of the court's local rules, there is no excuse for plaintiffs failure to read and comply with the court's order which specifically informed him of the need to serve on defense counsel a copy of any document filed with the court. Reviewing the motions and writing the order consumed court time on a problem that would not have existed if plaintiff had followed the court's earlier order.
Next came plaintiff's disregard of his discovery obligations. The details of the discovery problems are discussed in the court's June 27, 2002 Order Compelling Discovery and will not be repeated here except to note that plaintiff failed to attend his first deposition scheduled for April 10, 2002, failed to attend his second deposition scheduled for May 2, 2002, and failed to timely respond to the interrogatories and document production request. Although plaintiff failed to contact defense counsel to discuss his inability to appear for the depositions and respond to the discovery requests, the court found that his incarceration and lack of an address for defense counsel provided cause for his failure to do so. The court warned:
Although plaintiff's actions in the discovery process
thus far do not warrant an issue preclusion sanction,
plaintiff is strongly warned that future failures to
respond to discovery requests will not be tolerated
and may result in the dismissal of this action, issue
preclusion, and/or other appropriate sanctions.
Plaintiff thus far has been quite inattentive about
the prosecution of this action and it appears that he
only tends to his duties in this case when he has
nothing else more interesting to do. The prosecution
of this action must be his top priority, rather than
an occasional hobby. His incarceration and pro se
status in no way excuse his duty to comply with
discovery requests and court deadlines. Regardless of
whether plaintiff is released from custody next
month, or is kept in custody, or is released and then
arrested yet again, plaintiff absolutely must complete
all his discovery and trial preparation and appear or
trial regardless of his custody status. He may wish to
make arrangements for a person not in custody to
deliver his legal materials to him if he needs them
while in custody. Plaintiff also is reminded that he
is under a continuing duty to notify the court and
defendants of any change of address. See Local Rule 3-11
(party proceeding pro se must "promptly file and serve
upon all opposing parties a Notice of Change of
Address specifying the new address"); Nov. 15, 2000
Order of Service, p. 4.
June 27, 2002 Order Compelling Discovery, pp. 4-5. The warning fell on deaf ears, which brings the court to the conduct that prompted the issuance of the OSC.
Plaintiff did not file his pretrial conference materials by the September 20, 2002 deadline before the scheduled October 1, 2002 pretrial conference. Although the February 28, 2002 Case Management And Pretrial Order For Jury Trial ("Case Management Order") directed the parties to prepare a joint pre-trial statement, only defendants filed a pre-trial statement. Defense counsel informed the court:
Counsel for defendants Wilson and Ramos recently
became aware that plaintiff Williams was re-arrested
in August, 2002 and probably resides at San Quentin
State Prison. Contrary to this Court's instructions at
the June 25, 2002 hearing on defendants' motion to
compel discovery, and Local Rule 3-11, Williams never
notified the Court or parties of his changed address,
or his new contact information. Thus, a draft joint
pre-trial statement was sent to Williams care of San
Quentin State Prison, but is [is] unknown whether
Williams received it. Defendants have filed this
statement without Williams' input.
Defendants' Joint Pre-Trial Conference Statement filed September 20, 2002, p. 1. Once the court learned of this problem and realized a useful pretrial conference could not be held without any written materials from plaintiff and the trial date was probably in question, the court held a special telephonic status conference on September 25, 2002 and continued the trial to January 13, 2003. The court ordered the parties to meet and confer regarding the pretrial filings and submit pretrial statements no later than November 4, 2002 for the continued pretrial conference scheduled for December 17, 2002. The deadlines were reiterated in the Amended Case Management And Pretrial Order For Jury Trial issued on September 27, 2002 ("Amended Case Management Order").
Plaintiff failed to participate in the meet and confer process as required by the Amended Case Management Order. He also failed to join in the pretrial conference statement, in violation of the Amended Case Management Order. And he did not file his own version of the pretrial conference statement until a month after the deadline to file the joint pretrial statement. The court vacated the pretrial conference and trial dates and issued the OSC.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred in San Francisco County. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983. All parties consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636 (c).
A. Federal Rules Regarding Dismissal
Federal Rule of Civil Procedure 16 allows sanctions for a party's failure to obey a scheduling or pretrial order. Upon such a failure by a party, the court "may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)." Fed.R.Civ.P. 16(f). The sanctions permitted under Rule 37(b)(2) (B), (C) and (D) are an "order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence," "[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party," or an order of contempt.
Federal Rule of Civil Procedure 41(b) also allows the involuntary dismissal of an action or a claim for "failure of the plaintiff to prosecute or to comply with these rules or any order of the court." Although the text of Rule 41(b) speaks in terms of a defense motion for dismissal, the Rule also permits the court to sua sponte dismiss an action for failure to prosecute or failure to comply with court order. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962).
Before dismissing a case under Rul 16(f) or Rule 41(b), "the district court must weigh several factors: the public's interest in expeditious resolution of litigation; the court's need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions." Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996). The standards for dismissal under Rule 16(f) and Rule 41(b) for failure to obey a court order "are basically the same." Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988).
B. Plaintiff's Response To The OSC
Plaintiff's Motion For Cause filed on December 18, 2002 had two responses to the OSC. Plaintiff first tried to justify his failure to participate in the pretrial process as ordered by claiming that the mail service at San Quentin State Prison was not adequate for receiving or mailing letters. This was evidenced, according to the plaintiff, by the fact that he had not even received the OSC. But plaintiff ignores the fact that the OSC was mailed just one or two days before plaintiff was released from San Quentin.*fn2 The failure of the OSC to reach him in the prison within a day or two as he was exiting does not prove poor mail service. The court has received other correspondence from plaintiff while he was at San Quentin and has sent him several orders that did not come back to the court undelivered. Blaming the prison mail system also advances plaintiffs cause very little because he unquestionably knew of the deadline to file (since it had been discussed at the September 25, 2002 status conference he attended by telephone) and he unquestionably had received the proposed pretrial materials from defense counsel (as evidenced by the fact that the included their proposed joint pretrial conference statement as part of the pretrial conference statement he filed on December 5, 2002).
Plaintiff also responded to the OSC by stating that he did file the joint pretrial statement before the due date and "notified all other parties in writing that I didn't have access to copying equipment and had mailed my answers to pretrial statements along with the copy of their statements." Motion For Cause, p. 1. The court does not accept this explanation. Plaintiff did file a Pretrial Conference Statement, but not until December 5, 2002. (The envelope in which it was mailed was postmarked December 4, 2002 from San Quentin.) Mailing the document a month after the deadline to file it did not comply with the court's Amended Case Management Order that the pretrial statement be joint and be filed by November 4, 2002.*fn3
Even if one accepted as true plaintiffs assertion that he filed his pretrial conference statement by the deadline, plaintiff admitted that he violated the court's order that he meet and confer about the preparation of pretrial materials: he states that he sent the materials directly to the court and simply sent defense counsel notice of that fact. Counsel for defendants Wilson and Ramos sent the pretrial materials to plaintiff in prison on September 30, 2002 and had not heard from plaintiff about the materials as of November 4, 2002 — the day the joint pretrial statement was due. See Defendants Wilson And Ramos' Notice Re: Pre-Trial Filings, p. 1. The pretrial statement was supposed to be jointly prepared, and plaintiff was informed of the fact orally at the earlier case management conferences and in the Amended Case Management Order. Plaintiff claims he did not have access to a photocopier, but that excuse does not help him because he could have mailed his proposed amendments to defense counsel for defense counsel to incorporate them into a joint pretrial statement or he could have handwritten two or three sets of his proposed inclusions in the pretrial statement to send a copy to defense counsel.*fn4 The materials were mailed to him more than a month before the joint pretrial conference statement was due. Plaintiff's failure to meet and confer with defense counsel violated the Amended Case Management Order.
C. The Appropriate Remedy
The court is mindful that dismissal is an extreme sanction. And the court is mindful that it must be sensitive to the particular problems faced by pro se litigants who may be unfamiliar with the legal system. The court now considers whether to impose the sanction of dismissal under Federal Rules of Civil Procedure 16(f) and 41(b) and whether another, lesser, sanction might be used instead.
One of the factors for the court to consider is the public's interest in expeditious resolution of litigation. This factor weighs in favor of dismissal, because plaintiff is not ready to go to trial, and allowing plaintiff to go to trial in his current unprepared state — with witnesses not identified and with exhibits not yet in hand — will be wasteful of the court's resources and will not promote the public's interest in expeditious resolution of litigation.
Another factor to consider is the court's need to manage its docket, a factor weighing heavily in favor of dismissal in this action. The court has repeatedly expended time dealing with problems occasioned by plaintiff's failure to comply with the court's orders and local rules. Spending time on such matters does not advance the case toward resolution but merely prevents it from slipping into a state of complete disarray. There often is more need for court management of a pro se case, but that does not mean that the court must endlessly accommodate an uncooperative litigant. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1991) (court's interest in docket control weighed in favor of dismissal of action where plaintiff failed to comply with court's order to file an amended complaint; during the 1/1-2 years case was pending "it consumed large amounts of the court's valuable time that it could have devoted to other major and serious criminal and civil cases on its docket"). The case also is now getting quite old on the court's docket. The case is thirty-three months old, and is one of the oldest cases on the undersigned's docket.
The prejudice to defendants is another factor weighing in favor of dismissal. Plaintiff's claim is that defendants acted improperly in their capacity as law enforcement agents and used too much force while arresting him. It casts a cloud over them to have such serious allegations linger in an unresolved state for many months due to a plaintiffs failure to pursue his case diligently after making the damaging accusations. Although the pendency of a lawsuit is not by itself sufficiently prejudicial to warrant dismissal, the unreasonable delay caused by plaintiff's unexcused failure to obey court orders suffices. See Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999). Defendants also have been prejudiced in a more specific way in that they have borne attorneys' fees and costs caused only by plaintiff's disregard of court orders. For example, the record indicates that plaintiff failure to respond to defendant's first set of pretrial materials caused defense counsel to (a) prepare for the October 1, 2002 pretrial conference (which was cancelled), (b) appear for the September 25, 2002 status conference to discuss plaintiff's failure, (c) send a second set of pretrial materials to plaintiff after he failed to respond to the first set, (d) file a notice regarding plaintiffs failure to respond to the second set of pretrial materials, and (e) need to pay to have a copy of the plaintiffs pre-trial statement made because plaintiff did send a copy of it to him when he finally filed it.
The one factor that weighs against dismissal is the public policy favoring disposition of cases on their merits. A police brutality claim is a serious one that calls "into question the manner by which the state exercises its monopoly on the legitimate use of force. Thus, the public has an interest in having this case decided on the merits." Dahl v. City of Huntington Beach, 84 F.3d at 366 (public had an interest in having case decided on the merits where two arrestees claimed that in separate incidents and after being restrained, they were beaten by officers and repeatedly bitten by a police dog and suffered injuries including deep dog bites on the thighs, groins, arms, and legs requiring stitches, permanent shoulder damage and severe bruising). While excessive force is never to be condoned, the force used in this case as described by plaintiff was not unusually extreme: plaintiff reportedly had his thumb wrenched and was pushed roughly and hit by police officers after he was on the ground handcuffed and while he was put in the police van. (Defendants contend that they used the force necessary to subdue an unruly arrestee.) Although there is a public interest in having a police brutality claim decided on its merits, that alone does not outweigh the other factors weighing in favor of dismissal of this case where plaintiff really has done nothing to prove his claim of police brutality after making the allegations in his pleading. See Ferdik v. Bonzelet, 963 F.2d at 1262-63 (even if ambiguity about prejudice to defendants and "public policy favoring disposition on the merits both weighed against dismissal, they would not outweigh the other three factors that strongly support dismissal here").
The court also considers the plaintiffs culpability as relevant to the analysis. The court finds that plaintiff willfully disobeyed the court's Case Management Order and Amended Case Management Order. The court repeatedly notified Williams that he had to comply with orders. For example, the court warned early in the case: "Plaintiff is responsible for prosecuting this case. Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure. 41(b)." Nov. 15, 2000 Order of Service, pp. 6-7; see also June 27, 2002 Order Compelling Discovery, p. 4 ("[Plaintiff's] incarceration and pro se status in no way excuse his duty to comply with discovery requests and court deadlines"). The court explicitly told him in the OSC that it was contemplating dismissal of the action for his failure to comply with the orders and participate in the pretrial process. Williams knew what faced him when he submitted his response to the OSC, yet he did not show that he had complied (or made a good faith effort to comply) with the Case Management Order and Amended Case Management Order.
Finally, the court considers whether other, lesser, sanctions would adequately address the problem in this case where the plaintiff has repeatedly violated court orders, failed to respond to second chances to obey court orders and to participate in the pretrial conference process, and appears utterly unprepared to go to trial.*fn5 Allowing plaintiff a second chance to participate in the preparation of pretrial conference materials was a less drastic measure, but it did not work. See Yourish v. California Amplifier, 191 F.3d at 992 (allowing plaintiffs a second chance to replead instead of dismissing the action with prejudice when plaintiffs failed to meet the deadline to file an amended complaint would have been considered a less drastic alternative to dismissal with prejudice); see also Ferdik v. Bonzelet, 963 F.2d at 1262 (warning by court that failure to obey order will result in dismissal may by itself satisfy the requirement to consider alternatives).
Monetary sanctions are not a realistic option in this case: plaintiff's in forma pauperis application showed he was impoverished. Since the filing of the in forma pauperis application, plaintiff has been in and out of prison and jail repeatedly, making it unlikely he has any funds to satisfy a monetary sanction. Imposition of a monetary sanction on a man without means to satisfy the obligation would be a hollow gesture. And if the court required the plaintiff to pay the monetary sanction before his case could go to trial, the case would age on the court's docket with no end in sight.
An order of issue or claim preclusion also is not a realistic option in this case because plaintiff's case raises a single excessive force claim. There is no way to effectively preclude part of an excessive force claim without essentially terminating the entire case. For example, if the court were to preclude evidence that the force used was excessive, there would be no way plaintiff could prevail in this action but the court and defendants would have to expend time and energy to prepare for a trial the result of which was foregone conclusion. And precluding evidence of his medical expenses is not effective because those were paid by the City and County of San Francisco, which filed a medical reimbursement lien on August 22, 2002.
Barring testimony from plaintiff's witnesses also is not an adequate sanction here because it would not sufficiently punish the plaintiff. Even if the court did not impose sanctions, the witness list on plaintiffs pretrial statement was so utterly inadequate that most of the witnesses included on plaintiff's witness list would not be permitted to testify. Plaintiff listed as prospective witnesses the "Intake Doctor (name to be supplied)," the "Surgeon (name to be supplied)," and the "Occupational Therapist (name to be supplied)." And he listed four unidentified "police officers" and "character witnesses." Plaintiff's Pretrial Statement, attachment, p. 4. Plaintiff apparently does not even know the names of his prospective witnesses more than 2-1/2 years after filing this action and at a time when he is supposed to be trial-ready. Plaintiff could not call these unidentified witnesses to testify, even if his witness list had been timely filed.
Likewise, excluding exhibits from presentation at trial is not an adequate sanction because it would not sufficiently punish plaintiff. Plaintiff states that the unnamed medical witnesses will be the sponsoring witnesses for exhibits described as "medical records, exams, x-rays, diagnosis chart," "medical records, charts of damage and repair," and "chartered coarse [sic] of therapy." Id. at 5. Plaintiff apparently does not even have these records, as he does not explain which particular medical records he wants to introduce as exhibits, describes them in only the most generalized way, is unable to name the treating physician and surgeon, and today wants to compel their production. See id. at 5-6.
Dismissal of this action is the appropriate remedy here. Plaintiff violated the Case Management Order and the Amended Pretrial Order. By doing so — as well as by his repeated violations of court orders and rules in this case — plaintiff has amply demonstrated that he is unwilling to comply with the court's orders and unwilling to take responsibility for the timely preparation of this case for trial. There is no evidence whatsoever that plaintiff is making a good faith effort to comply with the court's orders; rather, all evidence points to lack of diligence and lack of respect for the court. Plaintiff's compliance with court orders is getting worse, not better.
The court is well aware of its need to be particularly sensitive to the difficulties faced by pro se litigants who are unfamiliar with the judicial process. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). However, the problems in this action are not due to plaintiff's lack of familiarity with arcane laws or hidden rules: plaintiff ignores explicit orders and extremely clear deadlines. The court has explained the need to obey those orders and meet those deadlines, but such explanations have been ignored by plaintiff. Whatever the number of second chances a pro se litigant should be given, that number has been exceeded for plaintiff. If this case were allowed to go to trial, plaintiff's presentation of evidence likely would be a fiasco because he has not prepared for trial and (if his past performance is any indication) he likely will not obey any direction from the court. That is not fair to the court, to defendants, to jurors, or to taxpayers. Plaintiff's willful disobedience of court orders has reached an intolerable point.
Throughout the pendency of this action, plaintiff has disobeyed court orders. Most recently, he disobeyed the Case Management Order and the Amended Case Management Order in that he willfully twice failed to participate in the preparation of joint pretrial conference materials and willfully twice failed to file a joint pretrial conference statement by the deadline. The action is dismissed for plaintiffs failure to comply with the court orders and failure to prosecute. See Fed.R.Civ.Proc. 16(f) and 41(b). The clerk shall close the file.
IT IS SO ORDERED.