Michael Foley v. Lorea Arostegui ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL FOLEY, No. 20-17108
Plaintiff-Appellant, D.C. No. 2:14-cv-00094-RFB-NJK
v.
MEMORANDUM*
LOREA AROSTEGUI, Family Services
Specialist; GEORGINA STUART, Family
Services Specialist; DEBORAH
CROWSHAW, Family Services Supervisor;
LISA RUIZ-LEE, Family Services Director;
COUNTY OF CLARK, NEVADA, Political
Subdivision; COUNTY OF CLARK,
NEVADA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Michael Foley appeals pro se from the district court’s judgment dismissing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his 42 U.S.C. § 1983 action alleging that defendants retaliated against him and
deprived him of due process by placing him on a child abuse registry. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the
district court’s imposition of case terminating sanctions under Federal Rule of
Civil Procedure 37. Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803,
821 (9th Cir. 2019). We reverse and remand.
The district court dismissed Foley’s action as a sanction after Foley failed to
respond to outstanding discovery requests by the June 2019 deadline. However,
Foley’s counsel had withdrawn on May 30, 2019, and on June 21, 2019, Foley
moved to keep discovery open pending an appearance by his new counsel. On July
1, 2019, Foley’s new counsel entered an appearance and contacted defense counsel
concerning outstanding discovery issues, but defense counsel did not agree to an
extension and moved for terminating sanctions. Because Foley was represented by
counsel and lesser sanctions were available, dismissal of the action was premature.
See Porter v. Martinez, 941 F.2d 732, 733-34 (9th Cir. 1991) (concluding that
lesser sanctions were available for a pro se litigant who had recently obtained
counsel, and “[w]ith the assistance of counsel, [plaintiff] presumably [would] be
able to respond fully to those of the defendants’ discovery requests to which he
[was] required”); Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d
1428, 1431 (9th Cir. 1990) (“[A] district court abuses its discretion if it imposes a
2 20-17108
sanction of dismissal without first considering the impact of the sanction and the
adequacy of less drastic sanctions.” (citations and internal quotation marks
omitted)).
Because we reverse the dismissal of the action, we also reverse the district
court’s award of costs to defendants.
REVERSED and REMANDED.
3 20-17108