Davis v. Federal Bureau of Prisons

          REPORT & RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS FOR PLAINTIFF'S FAILURE TO PROSECUTE (Docket No. 243)

          MICHAEL J. WATANABE United STATES MAGISTRATE JUDGE

         Plaintiff^[1] is an inmate at Florence ADX, suing under 42 U.S.C. § 1983. Plaintiff initially brought claims against the Bureau of Prisons (“BOP”) and two individuals (Docket No. 1). On May 4, 2015, Judge Babcock dismissed Plaintiff's claims against the individual defendants pursuant to 28 U.S.C. § 1915A(b) and the case was reassigned to Judge Martinez and the undersigned (Docket No. 5). On February 4, 2016, the undersigned recommended that Plaintiff's claims against the BOP be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) (Docket No. 42). On March 24, 2016, Judge Martinez adopted the Recommendation and dismissed Plaintiff's claims (Docket No. 50). Judge Martinez further noted that “[i]f Plaintiff wishes to move for leave to file an amended complaint, his motion must be postmarked no later than April 30, 2016 . . . .” (Id. at 17). Plaintiff filed two motions seeking leave to amend, which were granted (Docket Nos. 55 & 62) and Plaintiff's Amended Complaint was filed on May 10, 2016 (Docket No. 63). In the Amended Complaint, Plaintiff again named the BOP as a Defendant, and added eleven individual Defendants as well as “ADX Super-Max Prison.” Defendants sought dismissal and the undersigned recommended that all claims other than Plaintiff's claim against Defendant BOP brought under the Religious Freedom Restoration Act (“RFRA”) be dismissed (Docket No. 132). Judge Martinez rejected the undersigned's Recommendation, but ultimately dismissed all claims other than Plaintiff's RFRA claim against Defendant BOP (Docket No. 144). Accordingly, Plaintiff's only remaining claim is his RFRA claim against Defendant BOP.

         After Judge Martinez ruled on that Recommendation, the undersigned entered a Scheduling Order (Docket No. 160) and discovery regarding Plaintiff's RFRA claim commenced. Defendant served written discovery requests on Plaintiff, but Plaintiff did not respond. On November 15, 2017, the undersigned granted (Docket No. 207) Defendant's Motion to Compel Responses to First Set of Written Discovery (Docket No. 196). In that Minute Order, the Court “ORDERED that Plaintiff shall respond to Defendant's First Set of Interrogatories and Requests for Production of Documents to Plaintiff (Docket No. 196-1) on or before December 15, 2017.” (Docket No. 207 at 1.) The Court “further ORDERED that the Clerk of the Court shall mail a copy of Defendant's First Set of Interrogatories and Requests for Production of Documents to Plaintiff (Docket No. 196-1) with this Minute Order when it is sent to Plaintiff.” (Id.) In addition the Court made clear to Plaintiff that failure to comply could result in sanctions:

Plaintiff is warned that failure to comply with this Minute Order and/or his discovery obligations may result in sanctions including, but not limited to, all sanctions listed in Fed.R.Civ.P. 37(b) and 37(d).

(Id.) (emphasis in original). Plaintiff objected to the November 15, 2017 Minute Order (Docket No. 214). That objection was overruled by Judge Martinez on February 27, 2018 (Docket No. 236). Judge Martinez found Plaintiff's objection to be untimely, but considered the merits and declined to overturn the November 15, 2017 Minute Order. Judge Martinez ordered Plaintiff to respond to Defendant's First Set of Interrogatories and Requests for Production of Documents no later than March 23, 2018 (Docket No. 236 at 6). Judge Martinez warned Plaintiff that

[f]ailure to respond to Defendant's discovery requests as ordered may lead to additional sanctions, to and including dismissal of Plaintiff's claims under Federal Rule of Civil Procedure 41(b) for failure to prosecute, failure to comply with Court Rules, and/ or failure to comply with the Court's Order.

(Docket No. 236 at 7). Plaintiff filed a motion for reconsideration of Judge Martinez's Order (Docket No. 242), which remains pending. In the instant motion (Docket No. 243), Defendant avers that Plaintiff did not respond to the discovery requests by the March 23, 2018 deadline and, therefore, seeks dismissal with prejudice under Rule 41.

         Analysis

Rule 41(b) of the Federal Rules of Civil Procedure provides in pertinent part:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19- operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). Furthermore, Rule 16(f) provides in pertinent part that “[o]n 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 party or its attorney: . . . (C) fails to obey a scheduling or other pretrial order.” Fed.R.Civ.P. 16(f). Rule 37(b)(2)(A) (ii)-(vii), which is referenced in Rule 16(f), permits the following sanctions:

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order ...