United States District Court, D. Maine
RECOMMENDED DECISION ON DEFENDANT CICHON'S MOTION
TO DISMISS
JOHN
C. NIVISON, U.S. MAGISTRATE JUDGE
In this
action, Plaintiff alleges that Defendants failed to provide
adequate medical care when Plaintiff was an inmate at the
Knox County Jail. The matter is before the Court on Defendant
Cichon's motion to dismiss. (Motion, ECF No. 49.)
Defendant
Cichon asks the Court to dismiss Plaintiff's complaint
against him because Plaintiff has not served discovery
responses in accordance with a court order. Plaintiff did not
file a response to the motion.
Following
a review of the record and after consideration of the
Defendant's argument, I recommend the Court dismiss
Plaintiff's complaint against Defendant Cichon with
prejudice unless Plaintiff demonstrates good cause for his
failure to comply with the Court's discovery order and
file a response to the motion to dismiss.
Procedural
Background
In
September 2017, Defendant Cichon served interrogatories and a
request for documents upon Plaintiff. (Motion, ¶ 1.) As
of February 22, 2018, the date of Plaintiff's deposition,
Plaintiff had not served responses to the discovery requests.
(Id., ¶¶ 2, 3.) At his deposition,
Plaintiff acknowledged receipt of the discovery requests, and
agreed to provide responses within 30 days. (Id.
¶ 4.) On February 23, 2018, Defendant Cichon moved for
an order to compel Plaintiff to respond to the discovery
requests by March 26, 2018. (Motion to Compel, ECF No. 46.)
On February 27, the Court granted the motion to compel, and
ordered Plaintiff to respond to the discovery requests on or
before March 30, 2018. (Order, ECF No. 47.) After Plaintiff
failed to serve the responses as ordered, on April 9, 2018,
Defendant Cichon moved for dismissal.
Discussion
“In
order to operate effectively and administer justice properly,
courts must have the leeway ‘to establish orderly
processes and manage their own affairs.'”
Vazquez-Rijos v. Anhang, 654 F.3d 122, 127 (1st Cir.
2011) (quoting Young v. Gordon, 330 F.3d 76, 81 (1st
Cir. 2003)). The civil rules “reinforce and augment the
inherent power of district courts to dismiss cases for
disregard of judicial orders.” Young, 330 F.3d
at 81. Federal Rule of Procedure 41(b) thus provides
“[i]f the plaintiff fails to prosecute or 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 addition, pursuant to Federal Rule of Civil
Procedure 37(b)(2)(A)(v), a court is authorized to dismiss an
action as a sanction for a party's failure to obey an
order to provide or permit discovery.
When
considering the appropriate sanction for the failure to
comply with a court order or the failure to prosecute, a
court “should consider the totality of events and then
choose from the broad universe of available sanctions in an
effort to fit the punishment to the severity and
circumstances of the violation.” Young, 330
F.3d at 81. Dismissal as a sanction should be used
cautiously. “Prior to choosing the harsh sanction of
dismissal, a district court should consider the broad panoply
of lesser sanctions available to it, such as contempt, fines,
conditional orders of dismissal, etc. The severe sanction of
dismissal serves as a powerful means of deterring others from
frustrating the district court's well justified efforts
at docket management, but it is not the only such
deterrent.” Crossman v. Raytheon Long Term
Disability Plan, 316 F.3d 36, 39 - 40 (1st Cir. 2002)
(internal quotation marks and citations omitted).
Here,
Plaintiff has not served responses to discovery requests that
have been outstanding for approximately ten months. Plaintiff
has also not filed a response to the motion to dismiss that
was filed nearly three months ago. Local Rule 7(b) provides:
“Unless within 21 days after the filing of a motion the
opposing party files written objection thereto, incorporating
a memorandum of law, the opposing party shall be deemed to
have waived objection.” D. Me. Loc. R. 7(b). Under
Local Rule 7, therefore, Plaintiff has waived objection to
Defendant's request for dismissal.
Given
Plaintiff's failure to serve responses to Defendant's
discovery requests, Plaintiff's failure to comply with
the Court's discovery order, and Plaintiff's lack of
response to the motion to dismiss, a sanction other than
dismissal, such as a monetary fine or the exclusion of
evidence, would not assist in the orderly progression of the
case on the docket. Plaintiff simply has not demonstrated an
intention to prosecute his claim as required by the governing
rules.
The
issue is whether the claim should be dismissed with
prejudice. As a general rule, dismissal with prejudice is a
sanction reserved for the most extreme misconduct.
Vazquez-Rijos, 654 F.3d at 127.
“[D]isobedience of court orders is inimical to the
orderly administration of justice and, in and of itself, can
constitute extreme misconduct.” Young, 330
F.3d at 81. The failure to respond to discovery requests for
approximately ten months and the failure to respond to the
Plaintiff's motion to dismiss or otherwise communicate
his intention to prosecute the claim can fairly be viewed as
sufficient grounds for dismissal with prejudice. Under the
circumstances, unless Plaintiff files an objection to this
Recommended Decision and demonstrates good cause for his
failure to comply with the Court's discovery order and to
respond to the motion to dismiss, dismissal with prejudice is
warranted.
Conclusion
Based
on the foregoing analysis, I recommend the Court grant the
motion to dismiss, and dismiss the complaint against
Defendant Cichon with prejudice unless, within the time for
the filing of objections to this Recommended Decision (14
days from the date of the Recommended Decision), Plaintiff
files an objection and demonstrates good cause for his
failure ...