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Hughes v. Arpaio

United States District Court, Ninth Circuit

October 7, 2013

Cory Allen Hughes, Plaintiff,
v.
Joseph M. Arpaio, et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Plaintiff Cory Allen Hughes brought this civil rights action under 42 U.S.C. ยง 1983 against Dr. Friedman, a physician at the Maricopa County Jail (Doc. 1).[1] Before the Court are Dr. Friedman's Motion to Dismiss for Failure to Participate in Discovery and Failure to Prosecute (Doc. 63) and Motion for Ruling (Doc. 68).

The Court will grant the Motion to Dismiss, deny the Motion for Ruling as moot, and terminate the action.

I. Background

Hughes' claim arose during his confinement at the Fourth Avenue Jail in Phoenix, Arizona (Doc. 1). He averred that when he entered the jail, there were orders from an orthopedic surgeon for Hughes to return quickly to the Maricopa Medical Center for surgery on his broken clavicle (id. at 3). Hughes alleged that Dr. Friedman was indifferent to Hughes medical needs because he did not follow the surgeon's order and, as a result, during Hughes' subsequent surgery, the surgeon had to remove bone growth, which caused excessive trauma (id.). Hughes further alleged that Dr. Friedman refused to order the medications that were prescribed by the surgeon (id.).

On July 23, 2013, Dr. Friedman filed his Motion to Dismiss for Failure to Participate in Discovery and Failure to Prosecute (Doc. 63). Dr. Friedman asserts that Hughes has not responded to various discovery requests that were propounded in May 2013, nor has he provided a signed authorization for medical releases that was requested on June 21, 2013 (id. at 2). Dr. Friedman states that he sent Hughes a good-faith effort letter in July 2013 requesting the status of the outstanding discovery responses and medical releases but has not yet received a response (id.). Dr. Friedman further states that Hughes failed to appear without explanation to a scheduled deposition in June 2013 and failed to respond to a subsequent letter regarding his failure to appear (id. at 3).

Dr. Friedman submits that Hughes' failure to participate in discovery, to contact defense counsel, or to prosecute this case in any way since his release from prison in May 2013 demonstrates that Hughes has abandoned this case (id. at 3-4; see Doc. 55). Dr. Friedman moves the Court to dismiss the case with prejudice (Doc. 63 at 4).

On July 24, 2013, the Court issued an Order notifying Hughes of Dr. Friedman's motion and informing him that if the motion is granted, it will end his case (Doc. 65). This Order directed Hughes to file a response by August 26, 2013, and informed him that a failure to respond could be treated as a consent to the granting of the motion (id. at 2). Hughes did not file a response.

Meanwhile, the Court granted Dr. Friedman's request to extend the time in which to depose Hughes, and a second deposition scheduled for August 30, 2013; Hughes was served notice of the deposition on July 29, 2013 (Doc. 67).

On September 6, 2013, Dr. Friedman filed a Motion for Ruling and stated that Hughes did not appear for the August 30, 2013 deposition or otherwise explain his absence (Doc. 68 at 2). The Motion for Ruling renews the request to dismiss the action for failure to prosecute (id.).

To date, Hughes has not filed a response to the Motion for Ruling.

II. Governing Standard

Dr. Friedman moves for dismissal under Federal Rule of Civil Procedure 41(b) (Doc. 63). Under Rule 41(b), a district court has authority to dismiss a plaintiff's action because of his failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co. , 370 U.S. 626, 629-30 (1962) (a district court has the inherent power to dismiss a case sua sponte for failure to prosecute); Ferdik v. Bonzelet , 963 F.2d 1258, 1260 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the court).

Before dismissal for failure to prosecute or failure to comply with court orders, the Court must consider the following factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." In re Phenylpropanolamine (PPA) Prod. Liab. Litig. , 460 F.3d 1217, 1226-1228, 1234-1252 (9th Cir. 2006) (discussing and applying the five factors); Pagtalunan v. Galaza , 291 F.3d 639, 642-43 (9th Cir. 2002) (same). If the court does ...


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