Davis v. Service Employees ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1577



                                     FRED DAVIS,



                                Plaintiff, Appellant,



                                          v.



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



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



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



                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Fred Davis on brief pro se.
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            Eunice  H.  Washington  on  Motion  for  Summary  Affirmance   and
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        Memorandum of Law  in Support  of Motion for  Summary Affirmance,  for

        appellee Service Employees International Union, AFL-CIO-CLC.





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                                   October 23, 1996

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                      Per Curiam.   Pro  se appellant Fred  Davis appeals
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            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
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            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.
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            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
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            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.
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                      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.
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            Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), cert. denied, 470
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            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
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            Minnesota, 893 F.2d 169, 171 (8th Cir. 1990).
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                      Affirmed.
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