
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1577                                     FRED DAVIS,                                Plaintiff, Appellant,                                          v.             SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-CLC, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Fred Davis on brief pro se.            __________            Eunice  H.  Washington  on  Motion  for  Summary  Affirmance   and            ______________________        Memorandum of Law  in Support  of Motion for  Summary Affirmance,  for        appellee Service Employees International Union, AFL-CIO-CLC.                                 ____________________                                   October 23, 1996                                 ____________________                      Per Curiam.   Pro  se appellant Fred  Davis appeals                      __________            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                                  ___  ______    ___________________            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.                                                ____ _________            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                                      ___ ________     _______            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                                         -2-            weaknesses  in  the   plaintiff's  case,  and  the   wasteful            expenditure of the district court's time."  Id.                                                        ___                      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                                         -3-            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.                                                             ___  ___            Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), cert. denied, 470            _______                                     ____________            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                                               ______ ______     ________            Minnesota, 893 F.2d 169, 171 (8th Cir. 1990).            _________                      Affirmed.                       _________                                         -4-
