Davis v. Service Employees

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1577

FRED DAVIS,

Plaintiff, Appellant,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-CLC, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr and Stahl, Circuit Judges.

Fred Davis on brief pro se.

Eunice H. Washington on Motion for Summary Affirmance and

Memorandum of Law in Support of Motion for Summary Affirmance, for
appellee Service Employees International Union, AFL-CIO-CLC.

October 23, 1996

Per Curiam. Pro se appellant Fred Davis appeals

from the district court's dismissal of his claim of

discrimination on the basis of age and religion and from

various interlocutory rulings. We view the dismissal as one

for lack of prosecution after Davis unjustifiably refused to

be deposed over a period of nearly four months. We affirm.

We note initially that Davis is unlikely to be able

to refile his Title VII claim of religious discrimination,

since the 90-day period after receipt of his right to sue

letter has expired. See Wilson v. Grumman Ohio Corp., 815

F.2d 26, 27-28 (8th Cir. 1987) (Title VII plaintiff may not

refile an action, which was dismissed without prejudice after

being timely filed, where the refiling did not occur within

90 days after receipt of the right to sue letter). Hence,

dismissal of that claim operated with prejudice to Davis.

Accordingly, we evaluate the dismissal under case law

considering dismissals with prejudice.

A district court may dismiss a case with prejudice

for lack of prosecution where the plaintiff has engaged in

"extreme misconduct." See Figueroa v. Alegria, 896 F.2d

645, 647 (1st Cir. 1990). Extreme misconduct may be shown by

"extremely protracted inaction (measured in years),

disobedience of court orders, ignorance of warnings,

contumacious conduct . . . or some other aggravating

circumstance such as prejudice to the defendant, glaring

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weaknesses in the plaintiff's case, and the wasteful

expenditure of the district court's time." Id.

The district court did not abuse its discretion in

dismissing this case. Davis was arguably "contumacious" in

unjustifiably refusing to be deposed. Although he submitted

his own affidavit and later a note by a physician (but not a

physician's affidavit, as directed by the court) in support

of his alleged illness, both documents spoke of his illness

in conclusory terms. Neither described or documented a

specific medical condition or history of treatment that would

show that Davis was too ill to be deposed. Under the

circumstances, the court could reasonably have concluded that

Davis's refusal to be deposed was willful.

There were additional aggravating circumstances as

well. First, besides refusing to be deposed, Davis impeded

progress in his case in other ways. He failed to respond

voluntarily and completely to defendants' other discovery

requests. In every instance, defendants had to apply to the

court for an order before Davis responded, and his ultimate

responses were incomplete or inadequate. Second, there were

"glaring weaknesses" in his claim of discrimination. In his

answers to interrogatories, he implied, but did not directly

state, that defendant Joseph Buckley had made discriminatory

comments when he refused to grieve Davis's discharge.

Davis's simultaneous characterization of Buckley's

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explanation for not grieving his discharge -- that Davis had

not paid his union dues -- as a "pretext" suggests that no

such discriminatory comments were made. Likewise, while

Davis's August 1994 letter to union president John Sweeney on

the incident in question referred to Buckley's assertion that

Davis had not paid his union dues, it did not mention any

discriminatory comments by Buckley. Finally, given Davis's

inadequate responses to defendants' written discovery, his

unexcused refusal to be deposed arguably prejudiced

defendants' ability to defend this action, which had been

pending for over a year when it was dismissed.

Because the court properly dismissed the action for

lack of prosecution, we need not consider the merits of the

interlocutory orders challenged on appeal. See Ash v.

Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), cert. denied, 470

U.S. 1007 (1985) (interlocutory rulings do not merge into the

final judgment in cases dismissed for lack of prosecution and

so are not reviewable on appeal); accord DuBose v. State of

Minnesota, 893 F.2d 169, 171 (8th Cir. 1990).

Affirmed.

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