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Rich v. Wexford Health Sources, Inc.

United States District Court, Ninth Circuit

September 4, 2013

Michael James Rich, Plaintiff,
v.
Wexford Health Sources, Inc., Dr. Stonecipher, Ronald Williams, Defendants.

REPORT AND RECOMMENDATION FOR DISMISSAL

MARK E. ASPEY, Magistrate Judge.

Plaintiff, who was then pro se, filed his complaint on September 17, 2010, while incarcerated at the Arizona State Prison Complex in Buckeye, Arizona. On January 7, 2011, the Court ordered Plaintiff to complete and return a service packet for Defendant Wexford Health Sources to the Court. That order warned Plaintiff that his failure to timely comply with the provisions of the order would result in the dismissal of the complaint pursuant to Rule 41(b), Federal Rules of Civil Procedure. Plaintiff later identified as defendants and effected service on Defendant Stonecipher and Defendant Williams.

The Court's service order at Doc. 8 warned Plaintiff:

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
* * *
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
* * *
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet , 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

On December 19, 2011, Defendants filed a motion to dismiss, which was denied on May 2, 2012. On May 4, 2012, the Court issued a scheduling order requiring discovery be completed by October 12, 2012, and that dispositive motions be filed by December 21, 2012. Defendants Wilkinson and Payne were added as defendants and these defendants answered the complaint on August 21, 2012.

Plaintiff noticed a change of address, indicating he was released from prison, on September 12, 2012, and counsel for Plaintiff entered an appearance on September 19, 2012, and on October 2, 2012. The remainder of the filing fee was paid on July 20, 2012. See Doc. 31.

On October 12, 2012, Plaintiff sought an extension of the time to complete discovery and file dispositive motions, and on November 30, 2012, the Court allowed the parties until September 1, 2013, to complete discovery and until September 15, 2013, to file dispositive motions.

On November 19, 2012, Defendants filed a motion for summary judgment. On March 21, 2012, the Court granted in part and denied in part Defendants' motion for summary judgment. The Court dismissed Count I with prejudice, regarding Plaintiff's treatment to his left big toe, and denied the motion with regard to Count II, regarding treatment for his right foot.

On April 12, 2013, the Court granted Attorney Richard D. Lyons' motion to withdraw as counsel of record for Plaintiff, based on the fact that Mr. Lyons was no longer employed by Gillespie, Shields & Durrant. Mr. Lyons stated in his motion to withdraw: "Gillespie, Shields & Durrant has expressed a desire to continue representing Plaintiffs as co-counsel with other attorneys and is actively seeking co-counsel in that regard." Doc. 53.

In the order granting the motion to withdraw the Court ordered that Plaintiff inform the Court as to whether Gillespie, Shields & Durrant would continue to represent Plaintiff or if he wished to proceed pro se. That ...


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