Searching over 5,500,000 cases.

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.

Ellison v. State of Montana Wardens

United States District Court, D. Montana, Helena Division

December 10, 2018

STATE OF MONTANA WARDENS, et. al., Defendants.


          Dana L. Christensen, Chief Judge.

         Three matters are before the Court: (1) United States Magistrate Judge John Johnston's Findings and Recommendations entered on August 30, 2018 (Doc. 75); (2) Ellison's Criminal Complaint against various officials at Montana State Prison (Doc. 78); and (3) Ellison's request for an evidentiary hearing (Doc. 79 at 5). The Court will address each matter in turn.

         I. Findings and Recommendations

         Judge Johnston entered his Findings and Recommendations recommending that Lionel Scott Ellison's ("Ellison") case be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute. Ellison timely objected, and is therefore entitled to de novo review. 28 U.S.C. § 636(b)(1). For the reasons explained below, the Court rejects the recommendation and will allow Ellison one final opportunity to file his initial disclosure.


         Ellison is inmate at Montana State Prison. On April 17, 2017, Ellison filed a Complaint against various Defendants at the Prison, alleging-among other things-that prison staff have engaged in a systemic practice of taking, tampering, and destroying his mail. (See Docs. 2, 12, 38.) Since the beginning of this proceeding, Ellison has demonstrated his persistence in seeing this matter to resolution, as evidenced by his numerous filings. (See Docs. 2 (Complaint), 7 (Motion to Supplement Complaint), 8 (Motion for Temporary Restraining Order), 18 (Motion to Clarity), 20 and 21 (Objections to the Findings and Recommendation), 28 (Motion to Amend Complaint), 30 (Motion to Appoint Special Master), 31 (Motion for Reconsideration), 34 (Motion for Show Cause Hearing), 36 (Motion to Incorporate Writ of Habeas Corpus), 46 (Motion for Partial Summary Judgment), 48 (Motion for Disqualification of Judge).)

         On December 15, 2017 the Court issued a Scheduling Order, requiring the parties to file their initial disclosures within 60 days. (Doc. 41.) On March 13th, Defendants made this filing, but Ellison failed to do so. (Doc. 61.) On July 11th in a conference call with Defense Counsel, Ellison learned of the elapsed deadline. (Doc. 77-1 at 3.) Apparently, he never received the Court's first scheduling order. (Id.) On July 13th, this Court issued a new scheduling order setting a second disclosure deadline of August 10th. (Doc. 73.) Ellison confirmed that he knew of this deadline (Doc. 79 at 3), yet he failed to respond.


         While a Court can sua sponte dismiss a case for lack of prosecution, "[d]ismissal is a harsh penalty and is to be imposed only in extreme circumstances." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A court evaluating whether to dismiss a claim under Federal Rule 41(b) should evaluate: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Id.

         In Henderson, the Ninth Circuit affirmed the district court's dismissal for failure to prosecute because the court found that the plaintiff was adequately warned that another delay could result in dismissal and was given numerous opportunities to resolve any scheduling issues. Id. at 1424. Specifically, the district court provided "at least three initial warnings of possible dismissal," and "attempted to solve the problem by holding a status conference." Id. The Ninth Circuit distinguished this case from its previous decision in Raiford v. Pounds, 640 F.2d 944 (9th Cir. 1981). In Raiford the court held that dismissal was not appropriate "where the plaintiff failed to meet two filing deadlines, no prejudice was shown, and no alternatives of lesser severity were ever considered by the district court." Henderson, 779 F.2d at 1424 (citing Raiford, 640 F.2d at 945).

         In Ferdik v. Bonzelet, the Ninth Circuit affirmed the district court's decision to dismiss but noted to importance of providing pro se plaintiffs-particularly those engaged in civil rights litigation-with the benefit of liberal pleadings and accommodating standards. 963 F.2d 1258, 1261 (9th Cir. 1992); see also Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) (stating a court "should treat pro se litigants with great leniency when evaluating compliance with the technical rules of civil procedure").

         With this guidance in mind, the Court does not find that Ellison's delay rises to the level of that described in Henderson and finds it more closely akin to the circumstances in Raiford. Despite twice failing to comply with the Court's scheduling order, Ellison claims he did not received notice of the Court's first scheduling order prior to his July 11th conference call with opposing counsel. Given that Ellison's claim involves allegations of mail tampering and theft, the Court is cautious in considering Ellison's failure to comply with the first scheduling order as dilatory. While Ellison was well aware of the August 10th, deadline and failed to meet it, the Court recognizes the importance of lenient standards, particularly when it comes to pro se litigants pursuing a civil rights claim. Because Ellison claims that he was under the impression that his entire case was stayed pending his appeal to the Ninth Circuit, the Court will not dismiss it at this juncture. Although Judge Johnston was correct at the time the Findings and Recommendation was issued, Ellison has raised sufficient concerns in his objections for the Court to give him one final opportunity to file his initial disclosures. Ellison has until January 11, 2018 to do so.

         II. Criminal Complaint

         Ellison filed a criminal complaint against various wardens and officials at the Montana State Prison, including the named Defendants in this case, for the theft of his mail. (Doc. 78 at 1.) Ellison claims he filed the complaint first with the United States Attorney's Office, but has received no reply which entitles him to file the matter with the Court. (Id. (citing United States v. Greenberg,320 F.2d 467 (9th Cir. 1963) for the ...

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.