United States District Court, E.D. Kentucky, Northern Division
REPORT & RECOMMENDATION
A. INGRAM UNITED STATES MAGISTRATE JUDGE
October 30, 2018, this pro se civil rights case was
consolidated with case number 0:18-CV-38-HRW. D.E. 20. The
matters had already been referred to the undersigned to issue
a recommended disposition. D.E. 10. The operative complaints
are Docket Entry #1 in this case and Docket Entries #1 and #5
in 0:18-CV-38-HRW. Before the Court are three motions filed
by Defendants. The first is a motion to dismiss for failure
to prosecute. D.E. 21. The second is a motion “to deem
requests for admissions admitted and for summary judgment
based on those admissions.” D.E. 22. The third is a
motion for summary judgment, accompanied by a memorandum and
affidavit. D.E. 23.
District Judge Wilhoit previously explained (D.E. 4 at 2),
Plaintiff Eric Anthony Johnson essentially raises five claims
in these three complaints.
Johnson alleges that, on February 12, 2018, four
fellow-inmates at the Boyd County Detention Center
“jumped” him and “kicked out” his
teeth. D.E. 1 at 2. He alleges four prison officers failed to
protect him from the assault. Johnson acknowledges he was
taken to a hospital that day but claims that severe headaches
and pain and infection in his mouth have persisted.
requests $150, 000 in compensatory damages from each of the
four officers, plus $75, 000 from each in punitive damages.
Id. at 3.
Johnson claims he “was sexually assaulted by several
inmates” in October 2017, and prison officials
displayed deliberate indifference to that situation.
0:18-CV-38, D.E. 1; D.E. 5 at 3-4.
third claim is that, over several months, a registered nurse
at the prison failed to provide him with medication to treat
his mental health problems, causing him to see things, hear
voices, and suffer from paranoia. 0:18-CV-38, D.E. 1; D.E. 5
fourth claim is that there were unclean and unsanitary
conditions at the prison, including black mold, which caused
him emotional distress and breathing problems. Id.
D.E. 1; D.E. 5 at 5.
fifth claim is that a prison officer “threatened”
him in November 2017, causing him to fear for his life.
Id. D.E. 5 at 5-6.
latter four claims, Johnson seeks $200, 000 in compensatory
damages (plus future “longterm health care
costs”), $100, 000 in punitive damages, and $250 per
day “spent under these conditions.” Id.
filed a notice of address change in August 2018 after his
release from jail. D.E. 17. But he failed to timely respond
to the motion to consolidate in October and to the three
pending dispositive motions that the Court now considers. As
Joint Local Civil Rule 7.1(c) warns, “Failure to timely
respond to a motion may be grounds for granting the
Defendants move for dismissal under Federal Rule of Civil
Procedure 41(b). D.E. 21. That rule states:
(b) Involuntary Dismissal; Effect. If the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) . . .
operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). The Sixth Circuit has identified four
factors to evaluate a District Court's dismissal for
failure to prosecute:
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal of the action.
Carpenter v. City of Flint, 723 F.3d 700, 704 (6th
Cir. 2013) (quoting Mulbah v. Detroit Bd. of
Educ., 261 F.3d 586, 589 (6th Cir. 2001). These
factors weigh against dismissal for failure to prosecute.
first factor “requires a clear record of delay or
contumacious conduct, ” meaning “behavior that is
perverse in resisting authority and ‘stubbornly
disobedient.” Id. at 704-05 (internal
quotation marks omitted). The plaintiff's conduct must
display either an intent to thwart judicial proceedings or a
reckless disregard for the effect of his conduct on those
proceedings. Id. at 705. Concerning the second
factor, a defendant is prejudiced by a plaintiff's
dilatory conduct if the defendant is required to waste time,
money, and effort in pursuit of cooperation which the
plaintiff was legally obligated to provide. Id. at
to Defendants, they propounded discovery on June 12, 2018,
including interrogatories, requests for admissions, and
requests for production of documents. D.E. 21 at 2. Johnson
filed limited responses in the record, including signed
release forms for employment and medical records.
See D.E. 16; 0:18-CV-38, D.E. 18. But no discovery
responses were sent by mail, and Johnson never responded to
the requests for admissions. D.E. 21 at 2. Defendants argue
they “have been prejudiced by Plaintiff's failure
and refusal to answer virtually any discovery regarding
Defendants['] claims and at this stage of the litigation
there are ...