United States District Court, D. Oregon
Michael Hailey Oregon State Correctional Institution
Plaintiff Pro Se.
Mayfield Michael Washington Attorneys for Defendant.
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Plaintiff Michael Hailey, an inmate in the custody of the
Oregon Department of Corrections, brings this 42 U.S.C.
§ 1983 lawsuit against Defendant David Ross, a
correctional officer. Plaintiff refuses to obey this
Court's orders that he be deposed. Therefore, the Court
grants Defendant's motion to dismiss this case.
along with Bobby Hillman, filed this lawsuit on October 29,
2015. Compl., ECF 1. In August of 2016, Mr. Hillman reached a
settlement with Defendant and the parties stipulated that Mr.
Hillman's claims would be dismissed from the case.
Judgment of Dismissal, ECF 17. At that point, Mr. Hailey was
not represented by counsel.
October 25, 2016, this Court held a status conference with
the parties and asked Mr. Hailey whether he wanted the Court
to appoint an attorney to represent him. Minutes, ECF 24.
Because Mr. Hailey wanted an attorney, the Court appointed
Matthew Miller as pro bono counsel. Order, ECF 25. The
parties held another status conference on November 28, 2016,
in which they agreed that discovery would be completed by
April 21, 2017 and a trial would take place in September of
2017. Minutes, ECF 29.
dispute arose among the parties as to whether Mr. Hailey was
required to submit to a deposition. On March 22, 2017, this
Court granted Defendant's Motion to Depose Mr. Hailey.
Minutes, ECF 39. However, on April 4, 2017, the scheduled
date for the deposition, Mr. Hailey informed Mr. Miller and
Defendant's attorneys that he would not submit to a
deposition. Mayfield Decl. ¶ 2, ECF 52. The Court held a
telephone hearing the same day and, once again, ordered
Plaintiff to submit to a deposition. Minutes, ECF 50. The
Court instructed Mr. Miller to warn Plaintiff that, if he
disobeyed the Court's order, his case would be dismissed.
Id.; Mayfield Decl. ¶ 9. The following day, Mr.
Miller informed Defendant's counsel that he had explained
the Court's order to Plaintiff but Plaintiff refused to
be deposed. Mayfield Decl. ¶ 12.
April 5, 2017, Defendant filed the present Motion to Dismiss.
Mot. Dismiss, ECF 51. On April 17, 2017, this Court granted
Mr. Miller's Motion to Withdraw as Counsel of Record for
Plaintiff. Order, ECF 59. In support of Mr. Miller's
motion, he submitted a declaration in which he attested that
Plaintiff had instructed him not to file a response to the
Motion to Dismiss or Defendant's discovery requests.
Miller Decl. 2, ECF 56.
to Rule 37(d) of the Federal Rules of Civil Procedure,
The court where the action is pending may, on motion, order
sanctions if . . . a party . . . fails, after being served
with proper notice, to appear for that person's
deposition . . . . Sanctions may include any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).
37(b)(2)(A)(v) provides for dismissal of the action as a
sanction. However, “[w]here the drastic sanctions of
dismissal or default are imposed . . . the losing party's
noncompliance must be due to willfulness, fault or bad
faith.” Henry v. Gill Industries, Inc., 983
F.2d 943, 946 (9th Cir. 1993); Fjelstad v. American Honda
Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985).
“[D]isobedient conduct not shown to be outside the
control of the litigant is all that is required to
demonstrate willfulness, bad faith, or fault.”
Henry, 983 F.2d at 948 (quoting Fjelstad,
762 F.2d at 1341.)
Rule of Civil Procedure 41(b) allows involuntary dismissal of
an action “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order.” Subject to a
few exceptions detailed in the Rule, a dismissal under Rule