Johnson v. Birmingham, Alabama, City Of et al

Filing 62

MEMORANDUM OPINION Based on the undersigned's findings (1) Johnson has engaged in a clear pattern of delay and willful contempt and (2) lesser sanctions will not suffice, the City Defendants' motion, 56 , and Gibbs' joinder in that motion, 57 , are GRANTED, and this case is due to be DISMISSED WITH PREJUDICE. A separate order will be entered. Johnson's motion to reschedule her deposition, 59 , is DENIED AS MOOT. Signed by Magistrate Judge John H England, III on 3/4/2019. (AFS)

FILED
2019 Mar-04 PM 12:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
QUIANDRA JOHNSON,
Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA,
et al.,
Defendants.

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Case No.: 2:17-cv-01039-JHE

MEMORANDUM OPINION1
On January 23, 2019, Defendants City of Birmingham, Alabama, and Officer Ivey Nicole
Jackson (the “City Defendants”) renewed their motion to dismiss this case with prejudice for want
of prosecution. (Doc. 56). Although he had not joined in the original motion, Defendant Torrey
Gibbs (“Gibbs”) has joined in these Defendants’ renewed motion. (Doc. 57). The undersigned
provided a February 7, 2019 deadline for Plaintiff Quiandra Johnson (“Johnson”) to respond.
(Doc. 58). However, Johnson did not comply with that deadline, instead filing a response twelve
days after it had passed. (Doc. 60). Gibbs has filed a reply in support of the City Defendants’
motion. (Docs. 61). For the reasons stated below, the City Defendants’ motion to dismiss, (doc.
56), is due to be GRANTED.
Background
At the outset of this case, Johnson was represented by counsel. On May 2, 2018, her
counsel moved to withdraw. (Doc. 41). Counsel attached a letter from Johnson dated the same
day stating Johnson was terminating the attorney-client relationship and requesting the return of
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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 30).

her file. (Doc. 41-1). Counsel represented to the court that she had provided a copy of her motion
to withdraw to Johnson and informed her of her right to object within fourteen days. (Doc. 41 at
2). Johnson did not object, and the undersigned granted the motion to withdraw on May 21, 2018.
(Doc. 42).
Subsequently, Johnson refused in large part to participate in this case. On October 1, 2018,
the City and Officer Jackson moved to compel discovery responses from Johnson and from Officer
Gibbs, which at that point were more than fifty days late. (Doc. 45). The undersigned set an
opposition deadline, (doc. 46), but neither party responded. The undersigned granted the motion
to compel on October 18, 2018, ordering discovery responses by November 1, 2018. (Doc. 47).
On November 2, 2018, the City Defendants moved to dismiss the complaint for lack of
prosecution. (Doc. 49). According to the City Defendants, Johnson had not complied with the
order and had refused to produce responses, sit for her deposition, or participate in the lawsuit at
all without an attorney. (Id. at 1-3). The City Defendants claimed that Johnson has communicated
her refusal to sit for her deposition in multiple phone calls and her refusal to participate in the case
in one phone call. (Id. at 2-3).
The undersigned held a hearing on the motion to dismiss on November 28, 2018. Although
the order setting the hearing noted in bold, underlined text that “Plaintiff is required to attend
the hearing,” (doc. 52), and one of the undersigned’s law clerks had called Plaintiff to inform her
of the date and time of the hearing and that she was required to attend, Plaintiff did not appear at
that hearing. The undersigned’s staff called Plaintiff to determine whether she planned to attend,
ultimately placing her on speakerphone in open court. Because Plaintiff stated she intended to
pursue the case and was looking for new counsel, the undersigned reset the hearing on the motion

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to dismiss, providing “one final opportunity to address the motion to dismiss for failure to
prosecute.” (Doc. 53) (emphasis in original).
On December 18, 2018, the undersigned held the reset hearing. Johnson appeared at this
hearing in person, stating she had not found counsel but intended to keep looking. The undersigned
informed Johnson that regardless of whether she had found counsel, she was responsible for
prosecuting this case, including through providing discovery responses to Defendants and sitting
for her deposition, and Johnson acknowledged that obligation. The undersigned entered an order
the same day stating the following:
Under Fed. R. Civ. P. 41(b), the court may dismiss a case when “the plaintiff fails
to prosecute or comply with these rules or a court order.” Dismissal with prejudice,
as the moving defendants request, “is an extreme sanction that may be properly
imposed only when: (1) a party engages in a clear pattern of delay or willful
contempt (contumacious conduct); and (2) the district court specifically finds that
lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V MONADA, 432
F.3d 1333, 1338 (11th Cir. 2005) (emphasis in original, citation omitted). Although
Johnson’s refusal to cooperate in discovery and failure to attend the previous
hearing might support a clear pattern of delay, the undersigned does not believe that
the conduct Johnson has demonstrated is sufficiently egregious to merit dismissal
with prejudice. Therefore, the Moving Defendants’ motion, (doc. 49), is DENIED.
However, Plaintiff is warned that her past conduct will be considered if she
fails to abide by her discovery obligations and the issue is before the court
again.
(Doc. 54 at 2) (emphasis added).
On January 23, 2019, the City Defendants filed the instant motion. (Doc. 56). The City
Defendants allege that on December 28, 2018, they re-noticed Johnson’s deposition for January
23, 2019. (Id. at 2; doc. 56-2). However, Johnson spoke with counsel for the City Defendants on
January 22, 2019 — the day before her deposition was scheduled — and informed them that she
would not attend the deposition because she had a mandatory class on the date of the deposition.
(Id. at 2-3). The City Defendants state the call “ended abruptly,” and Johnson did not appear at
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her scheduled deposition. (Id.). The undersigned set a February 7, 2019 deadline for Johnson to
respond to the motion to dismiss. (Doc. 58).
On January 25, 2019, Johnson filed a one-page motion — dated January 18, 2019, but
postmarked January 23, 2019 — asking the court to reschedule the deposition. (Doc. 59). The
motion indicated the scheduled date “is critical for [Johnson’s] attendance in class.” (Id.). Johnson
did not otherwise respond to the motion to dismiss by the deadline set out in the order.
On February 19, 2019, Johnson filed her opposition to the motion to dismiss. (Doc. 60).
Johnson begins her response by defending the adequacy of her complaint under the Federal Rules
of Civil Procedure, which is not at issue here. (Id. at 1). She continues by disputing that the phone
call with the City Defendants’ counsel ended abruptly, but she does not dispute that she refused to
sit for her scheduled deposition. (Id. at 1-2). Finally, Johnson notes that she submitted discovery
responses as ordered, which she says shows she is “abiding by the procedures that are in my
control.” (Id.).
Analysis
As stated above, the court may dismiss a case when “the plaintiff fails to prosecute or
comply with these rules or a court order.” FED. R. CIV. P. 41(b). Dismissal with prejudice is “an
extreme sanction that may be properly imposed only when: “(1) a party engages in a clear pattern
of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds
that lesser sanctions would not suffice.” Betty K Agencies, 432 F.3d at 1338 (emphasis in original).
Findings supporting both prongs are essential. Mingo v. Sugar Cane Growers Co-op. of Fla., 864
F.2d 101, 102 (11th Cir. 1989). Dismissal with prejudice is “more appropriate in a case where a
party, as distinct from counsel, is culpable.” Betty K Agencies, 432 F.3d at 1338 (citation omitted).

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A. Johnson Has Engaged in a Clear Record of Delay and Willful Conduct
As set out above, Johnson’s conduct has delayed this case and indicates sanctionable
willfulness.2 Johnson’s actions have required the court to enter an order compelling her responses
to discovery, schedule a hearing when Johnson did not comply with that order, and reschedule the
hearing when Johnson did not comply with the requirement that she attend the hearing in person.
Notwithstanding Johnson’s acknowledgement that she understood she would have to sit for her
deposition — and the warning in the previous order denying the City Defendants’ motion to
dismiss that her past conduct would be considered in the event her failure to prosecute this case
was brought again to the court’s attention — she has failed to do so.3
The undersigned has also warned Johnson that she would have to request relief from the
court if she and Defendants could not agree on discovery matters.

However, instead of

prospectively requesting the court intervene to reschedule her deposition — on a date she knew
about almost a month in advance — Johnson submitted her request to the court two days after the
deposition was scheduled, in effect asking the court to retroactively excuse her voluntary refusal
to attend.4 Johnson’s awareness of the scheduling conflict from at least January 18, 2019 (the date
handwritten on the motion) coupled with her failure to seek relief beforehand is exactly the type
of behavior the court has warned her about. The undersigned also notes this pattern has carried

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As is obvious from the fact she is pro se in this action, the conduct identified below is
directly attributable to Johnson, rather than to counsel representing her. See Betty K Agencies, 432
F.3d at 1338.
3
The undersigned notes this was the latest of multiple attempts to reschedule Johnson’s
deposition, which was originally set for July 31, 2018. (See docs. 56-1 & 56-2).
4
Johnson’s motion to reschedule her deposition was filed when it was received by the clerk
of court (January 25, 2019), not when it was postmarked (January 23, 2019). See FED. R. CIV. P.
5(d)(2) (“A paper not filed electronically is filed by delivering it . . . to the clerk.”). In any event,
there was no plausible way for the court to address the issue even if Johnson had made her request
on the postmarked date.
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through to Johnson’s response in opposition to the motion to dismiss, which was submitted almost
two weeks after the deadline for her response with no explanation for or attempt to justify the
delay.
The record arguably missing the last time Johnson’s failure to prosecute was before the
court is unquestionably present this time. Further, none of the actions described above imply the
type of “mere negligence or confusion” that would prohibit a finding of willfulness, see Zocaras
v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). See also Calloway v. Perdue Farms, Inc., 313 F.
App'x 246, 249 (11th Cir. 2009) (finding non-compliance willful and not merely mistaken or
negligent when pro se plaintiff “repeatedly failed to submit discovery, respond to [the defendant’s]
motion, or comply with the court's show cause orders”). Accordingly, the undersigned finds
Johnson has engaged in “a clear record of delay or willful conduct.”
B. Lesser Sanctions Will Not Suffice
The undersigned also specifically finds no sanction short of dismissal with prejudice would
be effective to carry this case to its conclusion.

Johnson has repeatedly disregarded the

undersigned’s orders, notwithstanding she has been warned that she is required to comply with
them and with her discovery obligations.5 “While dismissal is an extraordinary remedy, dismissal
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). See also Nurse v.
Sheraton Atlanta Hotel, 618 F. App'x 987, 990 (11th Cir. 2015) (affirming dismissal with prejudice
where pro se litigant violated clear court instructions). The undersigned also specifically notes

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Although Johnson raises the fact she has provided discovery responses to the City
Defendants as ordered, her partial compliance did nothing to relieve the court of having to further
intervene in discovery and delay the resolution of this case.
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that Johnson’s failure to prosecute had already been the subject of a previous motion to dismiss,
which the undersigned denied on the basis that Johnson’s conduct had not yet risen to the requisite
level of culpability, and that Johnson continued to exhibit the same behavior even knowing that
doing so would potentially endanger her case. The undersigned has considered whether lesser
sanctions — including monetary sanctions — would be appropriate, but Johnson’s refusal to obey
court orders suggests she is not likely to comply with any sanctions the undersigned could order,
either. Accordingly, the undersigned finds any lesser sanction than dismissal with prejudice would
be futile.
Conclusion
Based on the undersigned’s findings (1) Johnson has engaged in a clear pattern of delay
and willful contempt and (2) lesser sanctions will not suffice, the City Defendants’ motion, (doc.
56), and Gibbs’ joinder in that motion, (doc. 57), are GRANTED, and this case is due to be
DISMISSED WITH PREJUDICE. A separate order will be entered. Johnson’s motion to
reschedule her deposition, (doc. 59), is DENIED AS MOOT.
DONE this 4th day of March, 2019.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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