United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion for
Sanctions (R. 28), which has been referred to the undersigned
for preparation of a Report and Recommendation pursuant to 28
U.S.C. § 636(b)(1)(B). (See R. 15). Plaintiff
did not file a Response to Defendant's Motion, and the
time to do so under the Joint Local Rules has expired. For
the reasons set forth below, the undersigned recommends that
Defendant's Motion for Sanctions be granted in part, and
this matter be dismissed and stricken from the active docket
of this Court.
February 7, 2018, Plaintiff, proceeding pro se,
filed this civil rights action pursuant to 42 U.S.C. §
1983 against Defendants Chris Hankins and Roy Washington in
the Western District of Kentucky. Plaintiffs claims arise
from the conditions of his confinement while an inmate at the
Grant County Detention Center. (See R. 1). Plaintiff
s case was subsequently transferred to this Court on February
9, 2018 (R. 5) and, following the transfer, Defendant Roy
Washington was dismissed from this action. (See R.
9). The Court entered a Scheduling Order on March 23, 2018,
which established a discovery deadline of September 24, 2018.
(R. 18). The Order also directed Plaintiff to keep the Court
"informed of his current mailing address. Failure to
notify the Clerk of any change of address may result in
dismissal of this case." (Id. at 2).
explained in the Court's November 9, 2018 Order (R. 26),
Defendant served his First Set of Interrogatories, Request
for Production of Documents, and Requests for Admission upon
Plaintiff on March 28, 2018. (See R. 20; R 23-1). On
June 8, 2018, Defendant sent a letter to Plaintiff requesting
a response to the prior written discovery. (R. 23-1).
Plaintiff responded by letter on June 22, 2018, requesting an
additional copy of the discovery requests. (R. 23-2). On June
29, 2018, defense counsel sent by letter an additional copy
of the requests and demanded a response within thirty days.
(R. 23-3). Plaintiff did not provide responses to
Defendant's written discovery. On July 18, 2018 Plaintiff
filed a Notice of Change of Address as required by the
Court's Scheduling Order (R. 18), informing the Court
that he was then being housed at the Woodford County
Detention Center in Versailles, Kentucky. (R. 22). On July
20, 2018, defense counsel forwarded a copy of the June 29
letter to Plaintiff at his new address. Plaintiff failed to
respond. Defendant then filed a Motion to Compel Discovery
and Motion for Extension of Time to Complete Discovery. (R.
23; R 25). Plaintiff did not file a response to either
Motion. The Court granted Defendant's Motions on November
9, 2018. (R 26). Per the Court's Order, Plaintiff was
directed to provide responses to Defendant's First Set of
Interrogatories and Request for Production of Documents by
not later than November 26, 2018, and the deadline to
complete discovery was extended to December 31, 2018.
(Id.). The Order was sent to Plaintiff s Woodford
County Detention Center address, but was subsequently
returned because Plaintiff was no longer housed at that
address. (R. 27).
did not provide the compelled discovery. Defendant on
December 10, 2018, filed the Motion for Sanctions presently
before the Court. (R. 28). Plaintiff has not filed a response
to that Motion.
Hankins seeks dismissal of this action pursuant to Federal
Civil Rule 37(b)(2). (R. 28). Rule 37(b)(2) provides for
sanctions, including dismissal, where a party has failed
"to obey an order to provide or permit
discovery[.]" Fed.R.Civ.P. 37(b)(2). Dismissal of an
action is an appropriate sanction where a party consciously
and intentionally fails to cooperate with the court's
discovery orders. See Bass v. Jostens, Inc., 71 F.3d
237, 241 (6th Cir. 1995). Here, Plaintiff is in violation of
the Court's March 23, 2018, Scheduling Order (R. 18) and
the November 9, 2018 Order (R. 26) compelling Plaintiff to
respond to discovery.
a district court's dismissal of an action pursuant to
Rule 37(b)(2) is appropriate is governed by four factors: 1)
whether the party's failure to cooperate in discovery is
due to willfulness, bad faith, or fault; 2) whether the
adversary was prejudiced by the failure to cooperate in
discovery; 3) whether the party was warned that a failure to
cooperate could lead to dismissal; and 4) whether less
drastic sanctions were imposed or considered. Marsh v.
Rhodes, No. 17-1211, 2017 WL 7833767, at *2 (6th Cir.
Dec. 14, 2017) (citing Harmon v. CSX Transp., Inc.,
110 F.3d 364, 366-67 (6th Cir. 1997)). "Although no one
factor is dispositive, dismissal is proper if the record
demonstrates delay or contumacious conduct." Bryant
v. U.S. Postal Service, 166 Fed.Appx. 207, 210 (6th Cir.
2006) (quoting Knoll v. Am. Tel. & Tel. Co., 176
F.3d 359, 363 (6th Cir. 1999)).
the fact that Plaintiff Fairchild has filed this action
pro se does not alter the Court's analysis.
While pro se litigants are held to a less stringent
standard than licensed attorneys when dealing with
sophisticated legal issues, that standard does not extend
"to pretrial orders or rules that do not require some
degree of legal training" or "readily comprehended
court deadlines." See Davis v. Bilbrey, No.
3:10-cv-01147, 2012 WL 2947587, at *2 (M.D. Tenn. July 19,
2012) (quoting Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991)) (internal quotations omitted).
of the four-factor analysis to determine whether dismissal is
an appropriate sanction for Plaintiff Fairchild's failure
to respond to discovery and comply with the Court's
discovery orders compels a finding that dismissal is
warranted. As to the first factor, Plaintiffs conduct was
willful and in bad faith. On March 23, 2018, the Court's
Scheduling Order directed the parties to complete discovery
by September 24, 2018, and further required the Plaintiff to
keep the Court informed of his current mailing address,
otherwise a failure to notify "may result in dismissal
of this case." (R. 18, at 2); also see LR
5.2(e). Defense counsel promptly sent written discovery
requests to Plaintiff on March 28, 2018. (See R. 20;
R. 23-1). Plaintiff was fully aware of Defendant's
discovery, as evidenced by his letter to defense counsel
dated June 22, 2018, asking for an additional copy of the
discovery requests because he had "lost those
papers[.]" (R. 23-2). Despite defense counsel's
multiple attempts at communication, Plaintiff has failed to
provide a response or any explanation as to why he did not
answer this discovery. (R. 23-3; R. 23-4).
the Court's Order of November 9, 2018, extended the
discovery deadline to December 31, 2018, and compelled
Plaintiff to provide a response to Defendant's written
discovery requests by November 26, 2018. (See R.
26). Plaintiff s lack of responsiveness was compounded by the
return of the Clerk's mailing of the Court's Order to
him because Plaintiff was no longer housed at the address he
had previously provided to the Clerk. (R. 27; see R.
22). Despite specific instruction to "keep the Clerk of
Court informed of his current mailing address" or
otherwise risk dismissal of his case, Plaintiff failed to do
so and instead chose to ignore the Court's Order.
(See R. 18). His repeated failure to participate in
discovery and to inform the Court of his current mailing
address was deliberate and is not excused by his pro
se status as the directives were clear and easy to
understand. See Davis v. Bilbrey, 2012 WL 2947587,
at *2 ("[T]he relaxed pleading standards for pro
se litigants do not apply to 'readily comprehended
court deadlines' and ... 'dismissal is appropriate
when a pro se litigant has engaged in a clear
pattern of delay.'" (citing Jourdan, 951
F.2d at 110)).
Defendant Hankins has been prejudiced by Plaintiffs failure
to respond to discovery requests. Specifically, Plaintiffs
failure to respond has prevented Defendant from ascertaining
the necessary evidence to prepare his defense. Further,
Defendant has expended time and resources to defend this
action, which Plaintiff has apparently abandoned. See
Id. (second factor found when plaintiffs failure to
respond to discovery caused defendants "to incur
unnecessary costs in 'time, money, and effort' to
defend [the] action.").
third factor also warrants dismissal. Defendant asserts
Plaintiff was "explicitly warned" that a failure to
cooperate could lead to dismissal in the Court's November
9, 2018 Order, which advised Plaintiff that "he risks
the Court considering sanctions for such conduct under Civil
Rule 37(d), including . . . dismissal of the action" if
responses to Defendant's discovery requests were not
provided. (R. 26, at 2-3). Although the mailing of the
Court's Order was returned on November 28, 2018 as
undeliverable (R. 27) and therefore Plaintiff did not receive
this warning, such result was the product of Plaintiff s own
further failure to update his address information per the
Court's Order and Local ...