OpenJurist

917 F2d 1307 McGarry v. Internal Revenue Service C B

917 F.2d 1307

Unpublished Disposition

Chez McGARRY, Plaintiff-Appellant,
v.
INTERNAL REVENUE SERVICE, Frederick C. Neilsen, Lawrence B.
Gibbs, Doris Wright, et al., Defendants-Appellees.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 89-55528.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1990.
Decided Nov. 8, 1990.

3

Before REINHARDT and LEAVY, Circuit Judges, and KING District Judge*.

4

MEMORANDUM**

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Chez McGarry appeals pro se from the district court's rulings: (1) denying his motion for default judgment against the government; (2) dismissing his non-Title VII discrimination claims against the government; and (3) dismissing his Title VII claim as a sanction for his refusal to provide discovery. McGarry's claims are all based on his allegation that the IRS discriminated against him and rejected his job application on the basis of his Filipino origin. Because we find the district judge's rulings to be proper, we affirm.

DISCUSSION

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I. Denial of McGarry's Motion for Default Judgment

7

McGarry's motion for default judgment was based on the alleged expiration of the government's sixty-day response period.1 On appeal, McGarry contends that the district judge erred in denying his motion for default judgment on the ground that the sixty-day response period had not yet expired at the time of the hearing. The hearing was held on January 23, 1989. The record clearly reflects that McGarry did not properly serve the government under Federal Rules of Civil Procedure 4(d)(4) and 4(d)(5) prior to December 2, 1988. Thus, the district judge correctly found that the sixty-day response period had not yet elapsed and properly denied McGarry's motion for default judgment.

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II. Dismissal of McGarry's Non-Title VII Claims and Individual Defendants

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McGarry's second contention on appeal is that the district judge erred in dismissing his non-Title VII claims and the individual defendants other than the Secretary of the Treasury. All of McGarry's claims for relief are based upon the IRS's alleged discrimination in rejecting his application for employment. It is well settled that Title VII provides the exclusive remedy for claims against a federal agency for discriminating against an employee or job-applicant on the basis of race or national origin. Brown v. General Services Administration, 425 U.S. 820, 833-34 (1976). Therefore, the district judge properly dismissed McGarry's non-Title VII claims.

10

As to the dismissal of the individual defendants, this court has held that the exclusivity of Title VII bars actions against federal officials or employees acting in their individual capacities. White v. General Services Administration, 652 F.2d 913, 916-17 (9th Cir.1981). The individual defendants dismissed in this case were: IRS Commissioner Lawrence Gibbs; IRS Los Angeles County Director Frederick Neilsen; Personnel Officer Doris Wright; and Staffing Specialist Dzintra Landers. The record reflects that McGarry's claims against these people were based solely on their ordinary activity in their individual capacities as employees or officers of the IRS. Thus, White is controlling in this case, and the district judge's dismissal of these individual defendants was correct.

III. Dismissal of McGarry's Title VII Claim

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Finally, McGarry contends that the district judge improperly dismissed his Title VII claim as a sanction for McGarry's refusal to provide discovery. Although dismissal is an extreme sanction and should be used sparingly, we will not overturn a dismissal sanction unless we have "a definite and firm conviction that [dismissal] was clearly outside the acceptable range of sanctions." Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988). This court has upheld the sanction of dismissal for continued refusals to respond to requests to produce in spite of a court order. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir.1988). Here, as in Toth, the plaintiff had actual notice that he would be faced with sanctions, including the possibility of dismissal, for failure to obey the court order. See id. at 1387. A warning that failure to obey a court order will result in dismissal can constitute "sufficient consideration of alternatives" to warrant the sanction of dismissal. E.g., Malone, 833 F.2d at 132. In this case, the district judge clearly warned McGarry that continued refusal to provide discovery and failure to comply with the court's order would lead to the imposition of sanctions, including the likelihood that his complaint would be dismissed. Nevertheless, McGarry failed to: (1) appear for deposition; (2) produce any documents; (3) respond to a final letter from the government, demanding he comply with the court's order and threatening to move for dismissal; or (4) appear at the hearing of the government's motion to dismiss. These facts strongly support the judge's finding that no sanction short of dismissal would suffice. Given the facts of this case, we cannot say that the district judge abused his discretion in dismissing McGarry's action.

CONCLUSION

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For the reasons set forth above, we affirm the district judge's rulings: (1) denying McGarry's motion for default judgment against the government; (2) dismissing McGarry's non-Title VII discrimination claims and his claims against the individual defendants; and (3) dismissing McGarry's Title VII claim as a sanction for his refusal to provide discovery.

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AFFIRMED.

*

Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

1

Federal Rule of Civil Procedure 12(a) provides in pertinent part: "The United States or an officer or agency thereof shall serve an answer to the complaint ... within 60 days after the service upon the United States attorney of the pleading in which the claim is asserted." F.R.Civ.P. 12(a), 28 U.S.C. (1987)