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[NOT FOR PUBLICATION]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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