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Simmons v. Williams

United States District Court, S.D. Georgia, Statesboro Division

March 9, 2018

ANTONIO SIMMONS, Plaintiff,
v.
WARDEN STANLEY WILLIAMS; JAMES DEAL; WAYNE JOHNSON; ERIC SMOKES; JOHNNY DAVIS; RONNIE BYNUM; CURTIS WHITFIELD; ANTONIO ABALOS; JOHNATHAN SANTIAGO; ZECHARIAH JONES; PAUL GRIFFIN; and ANDREW MCFARLANE, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court upon Plaintiff's failure to comply with the Court's Orders, (docs. 101, 104), and his failure to prosecute this action. For the following reasons, I RECOMMEND that the Court GRANT Defendants' Motion to Dismiss, (doc. 103), and DISMISS without prejudice Plaintiff's claims for his failure to comply with his discovery obligations, failure to follow the Court's directives, and failure to prosecute. I further RECOMMEND that the Court DIRECT the Clerk of Court to enter an appropriate judgment of dismissal and to CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         On October 15, 2014, Plaintiff, proceeding pro se, filed a Complaint contesting certain conditions of his confinement while incarcerated at Smith State Prison in Glennville, Georgia. (Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis, which the Court granted on October 16, 2014. (Docs. 2, 4.)

         After the requisite frivolity review of Plaintiff's Complaint, I concluded that Plaintiff set forth viable First Amendment, Fourth Amendment, Eighth Amendment, Fourteenth Amendment, and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., claims against Defendants. (Doc. 9.) I ordered service of Plaintiff's Complaint and also provided instructions to Plaintiff regarding the prosecution of this action. (Id. at pp. 20-25.) The Court instructed Plaintiff that if he “does not press his case forward, the Court may dismiss it for want of prosecution.” (Id. at pp. 24-25.) The Court specifically informed Plaintiff of his obligation to respond to a motion to dismiss within fourteen (14) days of service of such a motion. (Id.) The Court further explained that, should Plaintiff fail to respond to such a motion, the Court will assume that he does not oppose the Motion. (Id.) Additionally, the Court advised Plaintiff that failure to respond could result in his case being dismissed for lack of prosecution. (Id.) Finally, the Court warned Plaintiff that failure to fully cooperate in discovery “may subject Plaintiff to severe sanctions, including dismissal of this case.” (Id. (emphasis in original).)

         Defendants filed their first Motion to Dismiss on October 9, 2015, to which Plaintiff filed a Response in opposition. (Docs. 41, 54.) The Court issued a stay for the pendency of Defendants' Motion to Dismiss. (Doc. 44.) Following a series of motions and filings by Plaintiff, the Court granted in part and denied in part Defendants' Motion to Dismiss on August 9, 2017. (Doc. 93.) After Defendants filed their Answer, the Court lifted the stay and issued a scheduling order with a discovery deadline of January 18, 2018. (Docs. 96, 98, 99.)

         On January 11, 2018, Defendants filed a Motion to Dismiss, or in the Alternative, Motion to Compel and to Extend the Discovery Period. (Doc. 100.) Defendant's filed this Motion because Plaintiff failed to appear for his noticed deposition and failed to communicate whatsoever with Defendants about this scheduled deposition. (Doc. 100, p. 2; Doc. 100-2.) The Court denied in part and granted in part Defendants' Motion, ordering Plaintiff to appear for his next scheduled deposition and granting an extension of discovery. (Doc. 101.) In its Order, the Court advised that the Federal Rules of Civil Procedure authorize dismissal as a sanction for disobeying discovery orders and forewarned Plaintiff in no uncertain terms “that his failure to participate in discovery will warrant the dismissal of this action.” (Id.) Yet again, Plaintiff failed to appear for his noticed deposition, (doc. 103-2), and Defendants filed another Motion to Dismiss as a result, (doc. 103).

         On February 13, 2018, out of an abundance of caution, the Court deferred ruling on Defendants' Motion and ordered Plaintiff to “file any response in opposition to Defendants' Motion for a dismissal or to inform the Court of his decision not to oppose” within fourteen (14) days. (Doc. 104.) The Court again alerted Plaintiff that, should he fail to respond to the Motion to Dismiss, the Court would presume he does not oppose the Motion. (Id.) In addition, the Court provided Plaintiff with a copy of Federal Rules of Civil Procedure 41 and 12 to ensure that he had full notice of the requirements of the Rules regarding motions to dismiss. (Id.) Plaintiff, however, has not filed a response to Defendants' Motion to Dismiss.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to comply with this Court's Orders and his discovery obligations, his failure to respond to Defendants' Motion to Dismiss, and his failure to prosecute. In light of Plaintiff's trifecta of error and for the reasons set forth below, I RECOMMEND that the Court GRANT Defendants' Motion to Dismiss, DISMISS without prejudice Plaintiff's Complaint, and DENY him leave to appeal in forma pauperis.

         I. Dismissal for Failure to Appear At Noticed Deposition

         Federal Rule of Civil Procedure 37(d) authorizes district courts to sanction a party who, after being served with proper notice, fails to appear for his deposition. A court may dismiss an action as a sanction for the party's failure to appear for a noticed deposition. Fed.R.Civ.P. 37(d)(3), (b)(2)(A)(v). “[T]he sanction of dismissal is a most extreme remedy and one not to be imposed if lesser sanctions will do.” Hashemi v. Campaigner Publ'ns, Inc., 737 F.2d 1538, 1538-39 (11th Cir. 1984) (upholding dismissal pursuant to Fed.R.Civ.P. 37(d)). However, the court “retains the discretion to dismiss a complaint where the party's conduct amounts to flagrant disregard and willful disobedience of the court's discovery orders.” Id. at 1539 (citation omitted); see also Bonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979) (the plaintiff's repeated failure to appear for deposition warranted dismissal of his suit with prejudice).[1] In determining whether lesser sanctions will suffice, the presence or absence of willfulness is a relevant consideration. 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2291 (2d ed. 1995).

         Under Federal Rule of Civil Procedure 41(b), a “district court is authorized, on defendant's motion, to dismiss an action for failure to prosecute or to obey a court order or federal rule, ” but a dismissal with prejudice is “a sanction of last resort.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). In dismissing a case under Rule 41(b), the Court considers whether (1) the party has exhibited a clear record of delay or (2) has been willfully contempt, and whether lesser sanctions would not suffice. Id. (citation omitted). Dismissal pursuant to Rule 41(b) “upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

         Moreover, where a litigant has failed to comply with discovery rules and related court orders, dismissal under Rules 37(d) and 41(b) is coextensive. See Kelly v. Old Dominion Freight Line, Inc., 376 Fed.Appx. 909, 913-15 (11th Cir. 2010) (per curiam) (upholding magistrate judge's dismissal under either Rule 37(d) or 41(b) where the party failed to appear at his noticed deposition and failed to timely respond to other discovery requests after the court previously denied the defendant's first sanctions motion and warned the party that dismissal would be warranted for subsequent discovery violations); Reed v. Fulton Cty. Gov't, 170 Fed.Appx. 674, 675-676 (11th ...


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