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Hayes v. Toole

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

March 20, 2018




         This matter comes before the Court upon Plaintiff's failure to comply with the Court's Order, (doc. 48), and his failure to prosecute this action. For the following reasons, I RECOMMEND that the Court GRANT in part Defendants' Motion to Dismiss or, in the Alternative, Motion to Compel, (doc. 47), 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.


         On February 22, 2016, Plaintiff, proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983, contending Defendants denied him access to necessary medical care in violation of the Eighth Amendment. (Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis, which the Court granted on March 3, 2016. (Docs. 2, 3.)

         After the requisite frivolity review of Plaintiff's Complaint, I concluded that Plaintiff set forth viable Eighth Amendment deliberate indifference to serious medical needs claims for injunctive and monetary relief against Defendants regarding their denial of hip surgery. (Doc. 9.) I ordered service of Plaintiff's Complaint and also provided instructions to Plaintiff regarding the prosecution of this action. (Id. at pp. 11-15.) The Court instructed Plaintiff that if he “does not press his case forward, the Court may dismiss it for want of prosecution.” (Id. at p. 13 (citing Fed.R.Civ.P. 41; Local R. 41.1).) 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. at p. 14.) 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. at p. 13 (emphasis in original).)

         Defendants filed their first Motion to Dismiss on August 11, 2016, to which Plaintiff filed a Response in opposition. (Docs. 19, 24.) Defendants filed a Reply to which Plaintiff filed a Surreply. (Docs. 25, 26.) The Court issued a stay of discovery and other proceedings for the pendency of Defendants' Motion to Dismiss. (Doc. 21.) On January 10, 2017, the Court denied Defendants' Motion to Dismiss and lifted the discovery stay. (Docs. 30, 36.) Thereafter, Defendants filed their Answer and the Court issued a Scheduling Order. (Docs. 37, 38.)

         During discovery, Plaintiff was released from Georgia State Prison in Reidsville, Georgia, and relocated to Tallahassee, Florida. (Doc. 34.) In light of this move and the difficulty of deposing Plaintiff out of state, the Court twice granted discovery extensions at Defendants' request. (Docs. 44, 46.) Defendants attempted to depose Plaintiff on July 17, 2017, but were unable to do so because of Plaintiff's relocation to Florida. (Doc. 43.) Through their telephone communications with Plaintiff regarding the deposition, Defendants learned Plaintiff's subject hip condition was being cared for by a primary care physician in Florida and he would be unable to travel to Georgia. (Docs. 43, 45.) Defendants continued to try and schedule a deposition and also tried to obtain information about Plaintiff's primary care physician, but Plaintiff was no longer reachable by phone so Defendants served written discovery on Plaintiff concerning his hip doctor. (Doc. 45.) Plaintiff, however, failed to respond. (Doc. 47.)

         On December 5, 2017, Defendants filed the present Motion to Dismiss or, in the Alternative, Motion to Compel Plaintiff to respond to the unanswered interrogatory. (Id.) Defendants served their unanswered interrogatory on September 29, 2017, with only a single question requesting the name and address of any health care provider who has treated Plaintiff's hip condition since his release from incarceration. (Doc. 47-2.) Defendants argue dismissal is proper in this case because Plaintiff has failed to provide basic discovery and frustrated their good faith efforts to litigate and defend their case. (Doc. 47-1, p. 3.)

         On January 8, 2018, the Court 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. 48.) 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.) On January 24, 2018, Plaintiff moved for an extension of time to respond, which the Court granted, and also updated his Tallahassee address, [1] (docs. 49, 50, 52). Plaintiff's response was due by March 3, 2018. Despite the extension of time and the Court's Order to respond, Plaintiff has not responded to Defendants' Motion to Dismiss.


         The Court must now determine how to address Plaintiff's failure to comply with this Court's Order 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 in part Defendants' Motion to Dismiss, DISMISS without prejudice Plaintiff's Complaint, and DENY him leave to appeal in forma pauperis.

         I. Dismissal for Failure to Respond to Defendants' Interrogatory

         Federal Rule of Civil Procedure 37(d) authorizes district courts to sanction a party who, after being properly served with interrogatories, fails to serve its answers, objections, or written response. A court may dismiss an action as a sanction for the party's failure to respond to served interrogatories. 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) (per curiam) (affirming dismissal pursuant to Rule 37(d)); see also In re Plywood Antitrust Litig., 655 F.2d 627, 638 (5th Cir. 1981) (affirming Rule 37(d) monetary sanctions for failure to respond to interrogatories and noting that “under appropriate circumstances, evasive and incomplete answers [ ] are tantamount to no answers at all” (citations omitted)).[2] 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). 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 ...

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