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Hailey v. Ross

United States District Court, D. Oregon

May 10, 2017

MICHAEL HAILEY, Plaintiff,
v.
DAVID ROSS, Defendant.

          Michael Hailey Oregon State Correctional Institution Plaintiff Pro Se.

          Sharia Mayfield Michael Washington Attorneys for Defendant.

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE

         Pro se 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.

         BACKGROUND

         Plaintiff, 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.

         On 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.

         A 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.

         On 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.

         STANDARDS

         Pursuant 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).

         Rule 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.)

         Federal 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 41(b) ...


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