Hinton et al v. Cochise, County of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Marcus Hinton, et al.,
Plaintiffs,
v.
County of Cochise, et al.,
Defendants.
No. CV-23-00482-TUC-JAS (MSA)
REPORT AND
RECOMMENDATION
On April 21, 2026, the Court filed an Order directing Plaintiffs Marcus and Vanessa
Hinton to show cause why, in light of their long history of violating Court rules and orders,
this case should not be dismissed with prejudice for failure to comply with the March 9
and March 20 Orders. (Doc. 282.) Plaintiffs filed their response on May 11. (Doc. 283.)
Having carefully considered the response and record, the Court will recommend that this
case be dismissed with prejudice.1
I. Factual Background
The Court incorporates the factual background set forth in the Order to Show Cause.
(Doc. 282.)
II. Legal Standard
In deciding whether to dismiss a case pursuant to Federal Rule of Civil Procedure
41(b), the district court must consider five factors: “(1) the public’s interest in expeditious
resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice
1 This report was already complete when Defendants filed their motion to dismiss.
(Doc. 284.) The report is not based on anything in that motion.
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to the defendants; (4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic alternatives.” Applied Underwriters, Inc. v. Lichtenegger,
913 F.3d 884, 890 (9th Cir. 2019) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990
(9th Cir. 1999)). Dismissal is appropriate “‘where at least four factors support dismissal,
or where at least three factors strongly support dismissal.’ In addition, in order to warrant
a sanction of dismissal, the party’s violations of the court’s orders must be due to wilfulness
or bad faith.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (first quoting
Yourish, 191 F.3d at 990; and then citing Wyle v. R.J. Reynolds Indus., 709 F.2d 585, 589
(9th Cir. 1983)).
III. Discussion
The first factor, the public’s interest in expeditious resolution of litigation, “always
favors dismissal.” Yourish, 191 F.3d at 990. It strongly supports dismissal here. This case,
filed in late 2023, has not progressed because Plaintiffs’ serial, noncompliant filings have
kept it mired in the pleading stage. Their violations of the March 9 and March 20 Orders
are only the most recent examples. This Plaintiff-caused delay became unreasonable a long
time ago. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (finding that this
factor strongly supported dismissal where the “case dragged on for over a year and a half
before it finally was dismissed”).
The second factor considers the need to “preserve the district courts’ power to
manage their dockets without being subject to the endless vexatious noncompliance of
litigants . . . .” Ferdik, 963 F.2d at 1261. It strongly supports dismissal here. The Court has
devoted an inordinate amount of attention to this case. Among other things, the Court has
had to repeatedly warn Plaintiffs about amendment rules, signature rules, and docket
flooding with meritless and duplicative motions. It has also had to take repeated corrective
action, including striking unauthorized or improper filings and imposing filing bars. If not
for these show-cause proceedings, the Court would have to take similar corrective action
regarding Plaintiffs’ most recent violations. Plaintiffs’ noncompliance has significantly
interfered with the Court’s ability to manage its docket. See id. (finding that this factor
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strongly supported dismissal where the case “consumed large amounts of the court’s
valuable time that it could have devoted to other major and serious criminal and civil cases
on its docket”).
The third factor, prejudice to the defendant, favors dismissal when “the plaintiff’s
actions impair the defendant’s ability to go to trial or threaten to interfere with the rightful
decision of the case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)
(citing Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)). This factor strongly
supports dismissal here. “The law . . . presumes prejudice from unreasonable delay.” In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (first
citing In re Eisen, 31 F.3d 1447, 1453 (9th Cir. 1994); and then citing Morris v. Morgan
Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991)). As noted, there has been a lengthy and
unreasonable delay in this case. Further, Defendants have repeatedly had to respond to, or
move to strike, Plaintiffs’ serial, unauthorized, or unsigned filings, thus incurring ongoing
litigation expense. This includes a motion to strike Plaintiffs’ most recent attempt to file an
amended complaint. (Doc. 280.) Plaintiffs’ noncompliance has multiplied the proceedings
and forced Defendants to engage in excessive and unnecessary litigation.
The fourth factor, the policy favoring disposition of cases on their merits, “always
weighs against dismissal.” Dreith, 648 F.3d at 788 (citing Adriana, 913 F.2d at 1412). That
said, this factor “‘lends little support’ to a party whose responsibility it is to move a case
toward disposition on the merits but whose conduct impedes progress in that direction.”
Transamerica Life Ins. v. Arutyunyan, 93 F.4th 1136, 1147 (9th Cir. 2024) (quoting In re
PPA Prods. Liab. Litig., 460 F.3d at 1228). The weight of this factor is diminished due to
Plaintiffs’ persistent noncompliance, which has obstructed progression of this case.
The fifth factor, the availability of less drastic alternatives, strongly favors dismissal
of this case. Less drastic alternatives include warnings, fines, and additional chances to
comply. Malone, 833 F.2d at 132 n.1 (first quoting Titus v. Mercedes Benz of N. Am.,
695 F.2d 746, 749 n.6 (3d Cir. 1982); and then quoting Callip v. Harris Cnty. Child Welfare
Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985) (per curiam)). The Court has provided countless
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warnings and explicitly warned that “failure to comply with this Court’s rules or orders can
and will result in sanctions, including possible dismissal of this case.” (Doc. 132.) This
circuit’s “case law suggests that warning a plaintiff that failure to obey a court order will
result in dismissal can suffice to meet the ‘consideration of alternatives’ requirement.”
Malone, 833 F.2d at 132. The Court has threatened to impose monetary fines and other
sanctions, to no avail. (Docs. 198, 229, 241.) The Court has stricken numerous filings.
(Docs. 34, 39, 89, 97, 149, 151, 204, 212, 231, 240, 266.) The Court has also given
opportunities to correct noncompliant filings and other violations, including with respect to
the amended complaint required by the March 9 Order. (Docs. 29, 81, 132, 230, 241, 267.)
The Court finds that sanctions less severe than dismissal are not feasible. Actual (as
opposed to threatened) monetary fines and cost-shifting are possible alternatives. But given
Plaintiffs’ unresponsiveness to threatened fines, apparent inability to pay a fine (given their
in forma pauperis status), and persistent noncompliance despite multiple warnings and
multiple filings being stricken, these alternatives are not appropriate. Another possible
alternative is to require Plaintiffs to certify in writing that they will comply with all rules
and orders moving forward and to hold them to it (i.e., give them one final chance). Again,
though, their persistent noncompliance despite previous warnings and sanctions suggests
that this is not appropriate. The fact that Plaintiffs were unable to follow the clear, simple
instructions in the March 9 and March 20 Orders further suggests that another chance is
not appropriate.2 Plaintiffs assert that, moving forward, they will “(1) maintain a written
checklist of all requirements identified in each Court order, (2) compare all filings directly
against the Court’s instructions prior to submission, and (3) seek clarification from the
Clerk’s Office if any uncertainty exists before filing.” (Doc. 283 at 2.) But given everything
discussed in the Order to Show Cause and above, their pledge rings hollow.
As noted, “in order to warrant a sanction of dismissal, the party’s violations of the
court’s orders must be due to wilfulness or bad faith.” Dreith, 648 F.3d at 788 (citing Wyle,
709 F.2d at 589). Plaintiffs assert that they “did not intend to disregard or violate any Court
2 Plaintiffs say that they were reasonably confused about the instructions. (Doc. 283.)
But there was nothing vague or confusing about the Orders. See below.
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directive and have made good faith efforts to comply throughout these proceedings.”
(Doc. 283 at 1.) They say that, with respect to the March 9 and March 20 Orders, they
“experienced confusion as to which instructions controlled and how strictly the proposed
pleading attached to Doc. 246-1 needed to be followed without deviation.” (Id.) And they
suggest that they complied with the March 20 Order by filing another fourth amended
complaint before the April 3 deadline expired. (Id. at 1–2.) Thus, they say, there was no
“bad faith, delay, or willful disobedience.” (Id. at 2.)
Plaintiffs misunderstand the meaning of “willfulness.” “[A] ‘willful’ violation of a
court order does not require proof of mental intent such as bad faith or an improper motive,
but rather, it is enough that a party acted deliberately.” Evon v. Law Offices of Sidney
Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012). Thus, “‘disobedient conduct not shown to be
outside the control of the litigant’ is all that is required to demonstrate willfulness, bad
faith, or fault.” Henry v. Gill Indus., 983 F.2d 943, 948 (9th Cir. 1993) (citing Fjelstad v.
Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985)). Nothing in the record or in
Plaintiffs’ response shows that Plaintiffs’ failure to comply with the March 9 and March 20
Orders was outside their control. On the contrary, Plaintiffs’ response confirms that they
read the Orders and made a deliberate choice to file pleadings with extensive changes. The
violations were therefore willful. See id. at 949 (“Henry offers various explanations for his
discovery misconduct, but all are either legally irrelevant or factually implausible, and none
persuades that circumstances outside his control caused his transgressions.”).
As a final matter, any suggestion that Plaintiffs complied with the March 20 Order
through their April 3 filing is incorrect for the reasons stated in the Order to Show Cause.
(Doc. 282 at 5–6.) In addition, Plaintiffs’ allegations that they were reasonably confused
about the Court’s instructions are not believable. They allege that they were confused about
“which instructions controlled.” (Doc. 283 at 1.) But the March 20 Order required them to
“change the title of the pleading to ‘Fourth Amended Complaint’ and amend the caption
as directed by Judge Aguilera in her March 10 order (Doc. 264).” (Doc. 267 at 2 (emphasis
added).) The Court clearly expressed that compliance with both Orders was necessary.
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Plaintiffs further allege that they were confused about “how strictly the proposed pleading
. . . needed to be followed without deviation” and that they only later realized that “strict
adherence to that proposed pleading without any changes” was required. (Doc. 283 at 1.)
But the March 9 Order authorized only one change (to the caption) and stated that
“Plaintiffs may not add other parties or make other changes.” (Doc. 264 at 4.) And the
March 20 Order authorized only two changes (to the title and caption) and stated that
“Plaintiffs must not make any other changes to their Fourth Amended Complaint.”
(Doc. 267 at 2.) These instructions are clear, and Plaintiffs could not have reasonably read
them as authorizing their wide-ranging amendments.
* * *
In summary, the first, second, third, and fifth factors strongly favor dismissing this
case with prejudice, and Plaintiffs’ violations were willful. Dismissal is thus appropriate.
IV. Conclusion
The Court recommends, pursuant to Federal Rule of Civil Procedure 41(b), that the
district court dismiss this case with prejudice for failure to comply with the March 9 and
March 20 Orders.
This recommendation is not immediately appealable to the United States Court of
Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections
with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses
to objections. Id. The parties may not file replies on objections absent the district court’s
permission. A failure to file timely objections may result in the waiver of de novo review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). A party’s
objections or response to objections may not exceed 10 pages in length unless otherwise
permitted by the district court. LRCiv 7.2(e)(3).
Dated this 14th day of May, 2026.
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