Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chavez v. New Mexico Corrections Dept.

United States District Court, D. New Mexico

April 17, 2019

DENNIS CHAVEZ, et al., Plaintiffs,
v.
NEW MEXICO CORRECTIONS DEPT. et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court sua sponte, following Plaintiff Rawhi Farah's failure to appear at a March 6, 2019 telephonic status conference (doc. 30) and his subsequent failure to respond to the Court's Order to Show Cause (doc. 31). Based on Plaintiff's failure to prosecute and failure to comply with the Court's orders, I RECOMMEND that the Court DISMISS Plaintiff Farah from this action.

         I. Background

         Plaintiffs Farah and Chavez commenced this suit on July 29, 2017 in the Thirteenth Judicial District Court of New Mexico, asserting both state and federal claims arising from their incarceration. See generally doc. 1-1. Both Plaintiff Farah and Plaintiff Chavez remained incarcerated at the time of filing. Id. at 2. Defendant Corizon removed the action to this Court on February 27, 2018. Doc. 1.

         On February 6, 2019, Alvin Garcia, who was then representing both plaintiffs, moved to withdraw as counsel for Mr. Farah. Doc. 26. He explained in his motion that he had attempted to reach Mr. Farah numerous times without success. Mr. Farah's current address was unknown, but Mr. Farah's brother informed Mr. Garcia that he had left the country and was likely in Israel or Palestine. Id. at 1. Mr. Farah's brother had no information about when or if Mr. Farah might return to the United States. Id. On February 11, 2019, the Court issued an order granting Mr. Garcia's Motion to Withdraw.[1] Doc. 27.

         Plaintiff Farah, now proceeding pro se, failed to appear at the telephonic status conference scheduled for March 6, 2019. Doc. 30. The Order Setting Telephonic Status Conference (doc. 28) was issued nearly a month prior and mailed to Plaintiff Farah's last known address in Tennessee. During the status conference, Mr. Garcia informed the Court that he had not succeeded in contacting Mr. Farah and that a package sent to Mr. Farah's last known address had been returned. Doc. 30 at 1-2. Mr. Garcia confirmed that he had spoken with Mr. Farah's brother, but that Mr. Farah's brother was not in contact with Mr. Farah. Counsel for all parties agreed that Mr. Farah's discovery responses were long overdue. Id. at 2.

         The Court issued an Order to Show Cause on March 8, 2019, directing Plaintiff Farah to show cause why the Court should not assess sanctions against him, including dismissal of his claims, for his failure to appear at the telephonic status conference. Doc. 31. Moreover, Plaintiff Farah was advised that a “[f]ailure to file a response in writing shall constitute an independent basis for dismissal.” Id. at 2. The response deadline was April 6, 2019. That deadline has now passed and, to date, Plaintiff Farah has not responded.

         II. Legal Standard

         A court may dismiss an action if “the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). Such a dismissal generally “operates as an adjudication on the merits.” Id. The case may be dismissed upon motion of the defendant, or by the court sua sponte. “Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders.” Olsen v. Maples, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). The Federal Rules also specifically state that a court may issue sanctions for failure to appear “at a scheduling or other pretrial conference.” Fed.R.Civ.P. 16(f)(1)(A).

         The Tenth Circuit has identified five factors for district courts to consider in determining whether to issue a dismissal sanction. Lee v. Max Int'l, LLC, 638 F.3d 1318, 1323 (10th Cir. 2011) (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). These factors are as follows:

(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.

Ehrenhaus, 965 F.2d at 921 (internal quotations and citations omitted). These factors “do not constitute a rigid test.” Ehrenhaus, 965 F.2d at 921. Rather, they are factors that a district court “may wish to consider” in deciding whether to dismiss an action. Lee, 638 F.3d at 1323. See also Archibeque v. Atchison, T & S.F. Ry., 70 F.3d 1172, 1174-75 (10th Cir.1995) (upholding dismissal despite the fact that the district court did not evaluate all five Ehrenhaus factors). District courts enjoy “very broad discretion” in their use of sanctions. Lee, 638 F.3d at 1320 (internal quotation and citation omitted).

         III. Analysis

         Considering the case in light of the Ehrenhaus factors, I find that Plaintiff Farah should be dismissed from the action for his failure to appear at the status conference and his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.