Brune v. Glenn et al
MEMORANDUM OPINION. Granting 23 MOTION to Dismiss filed by Preston Glenn. Signed by Honorable Barry A. Bryant on December 15, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MARC EDWARD BRUNE
CASE NO.: 6:10-cv-6088
SHERIFF PRESTON GLENN
Marc Edward Brune, currently a resident of Little Rock, Arkansas, filed this civil rights
action under 42 U.S.C. § 1983. ECF No. 1. Pursuant to the provisions of 28 U.S.C. § 636 (2005),
this case is before the undersigned on consent of the parties. ECF No. 11.
Now before this Court is the Motion to Dismiss filed by the Defendant. ECF No. 23.
Plaintiff has filed no response to the Motion to Dismiss.
Plaintiff filed his Complaint on November 29, 2010, alleging three claims. ECF No. 1.
First, Plaintiff alleged he sent five separate requests to receive medical treatment for mental health
issues from September 2010, until the filing of his Complaint. Id. at ¶ V. Plaintiff also alleged he
sent in a grievance on October 29, 2010, specifically regarding the lack of response to his medical
requests for mental health treatment. Id. Second, Plaintiff alleged that on October 25, 2010, he
completed a grievance regarding the jail’s refusal to deliver mail on weekends and on days that the
secretary is absent. Id. Third, Plaintiff alleged that Pike County Jail did not respond to any of his
written grievances in a timely manner. Id.
This Court construed Plaintiff’s Complaint, under the liberal construction to be afforded to
pro se complaints, to include claims of denial of access to the mail, denial of grievance responses,
and denial or delay of mental health care by Sheriff Glenn. See ECF No. 17. After reviewing
Defendants’ Motion to Dismiss, this Court dismissed all claims except for Plaintiff’s denial or delay
of medical care claims against Sheriff Glenn. Id.
On August 19, 2011, Defendant Glenn filed a Motion to Compel. ECF No. 18. Defendant
contended that on July 1, 2011, discovery requests were served on Plaintiff and Plaintiff failed to
respond. ECF No. 18-1. On August 3, 2011, Defendant sent correspondence, including a copy of
the discovery requests, to Plaintiff at Plaintiff’s current address at the time, requesting Plaintiff’s
past-due discovery responses be forwarded, and advised that if Plaintiff’s responses were not
forwarded by August 17, 2011, Defendant would file a Motion to Compel. ECF No. 18-2. Plaintiff
did not so respond and Defendant filed his Motion to Compel. ECF No. 18. Plaintiff filed no
response to the Motion to Compel and the Motion to Compel was granted. ECF No. 22. Plaintiff’s
discovery responses were due to Defendant Glenn on or before November 17, 2011. Id.
It was also noted by the Court in the Order granting the Motion to Compel, that no mail was
returned to the Court, but mail was returned to the Defendant. Id.; ECF No. 19. The returned mail
included a copy of the Motion to Compel, which Defendants had filed with the Court. The Court
then changed Plaintiff’s address on his behalf, however no mail was ever returned to the Court,
including Defendant’s Motion to Compel, and it is assumed Plaintiff has received this document,
as well as all others, mailed to him from the Court. Plaintiff did not respond to the Motion to
Compel, or the Court’s Order granting the motion. Moreover, Plaintiff has not responded to the
Motion to Dismiss.
Pursuant to Federal Rule of Civil Procedure 37(b)(2), this Court is authorized to sanction a
party when that party fails to obey a discovery order. One of the sanctions authorized is “dismissing
the action or proceeding in whole or in part.” FED . R. CIV . P. 37(b)(2)(A)(v).
In the Eighth Circuit, a court should only impose the extreme sanction of dismissing a case
in limited circumstances. In order to impose this sanction under Rule 37, the following three
requirements must be met: (1) an order compelling discovery; (2) a willful violation of that order;
and (3) prejudice to the other party. See Mems v. City of St. Paul, Dept. of Fire and Safety Serv., 327
F.3d 771, 779 (8th Cir. 2003) (citation omitted).
In the present action and as outlined above, Plaintiff has failed to respond to discovery
requests made by the Defendant and Defendant is now seeking dismissal of this action. As noted
above and in the previous order of the Court, there are three requirements for sanctions to be entered
pursuant to Rule 37. First, there must be an order compelling discovery. See Mems, 327 F.3d at 779.
On October 17, 2011, this Court entered an order compelling discovery. ECF No. 22. Thus, the
first requirement of Mems is met. Second, there must be a willful violation of that order. See Mems,
327 F.3d at 779. Based upon Defendants’ demonstration that they sent Plaintiff discovery
responses, which were unanswered, ECF No. 18, and Plaintiff’s failure to acknowledge the Motion
to Compel or the Motion to Dismiss, there is little dispute that Plaintiff has willfully failed to comply
with discovery and with this Court’s Order. The Court also notes that no mail has been returned to
the Court, and thus it appears Plaintiff has had knowledge and adequate opportunity to respond.
Third and finally, Defendants must demonstrate prejudice. See Mems, 327 F.3d at 779. The
Court finds prejudice has been established and dismissal of Plaintiff’s Complaint against the
Defendants, with prejudice, is warranted.
Courts in this circuit attempt to balance the egregiousness of the plaintiff's conduct against
the severity of the sanction of dismissal, weighing the adverse effect of the plaintiff's conduct on the
defendant and the administration of justice against the consequence of extinguishing a litigant's
claim. See, e.g., Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005). A finding of bad faith is not
required, but rather the court must determine if the plaintiff acted intentionally, as opposed to
accidentally or involuntarily. Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000). A
finding of prejudice is proper if the failure to participate in discovery “impairs an opponent's ability
to determine the factual merits of a party's claim.” In re O'Brien, 351 F.3d 832, 839 (8th Cir. 2003).
A finding of intentional or willful conduct justifying dismissal is dependent upon the
particular facts of a given case. Courts have found a variety of conduct sufficiently willful to justify
dismissal, including the willful failure to answer interrogatories, Fox v. Studebaker-Worthington,
Inc., 516 F.2d 989, 993 (8th Cir. 1975), conduct exhibiting a pattern of intentional delay, Fletcher
v. Southern Farm Bureau Life Ins. Co., 757 F.2d 953, 956 (8th Cir. 1985), a persistent failure to
respond to discovery requests and disregard of a court's order requiring the production of discovery
responses, Edina Couriers, LLC v. UPS Mail Innovations, 06-CV-2137 (PAM/JSM), 2008 WL
80000 (D. Minn. Jan. 4, 2008), and failure to comply with an order for a deposition, Aziz v. Wright,
34 F.3d 587, 589 (8th Cir. 1994). While courts exercise caution in dismissing the claims of pro se
plaintiffs, and pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys, pro se plaintiffs are not excused from complying with court orders. Leach v. Waterway
Car Wash, 217 Fed. Appx. 571 (8th Cir. 2007) (affirming dismissal of complaint pursuant to Rule
41(b), but finding that plaintiff's conduct did not arise to level of willful disobedience or intentional
delay, the court modified the dismissal to be without prejudice).
It is found that prejudice has been established as to Defendant due to Plaintiff’s unwillingness
to obey Orders of this Court to complete discovery and that Defendants have been, and continue to
be, impaired in their ability to determine the factual merits of Plaintiff’s claims.
Accordingly, it is HEREBY ORDERED that Defendant’s Motion to Dismiss, ECF No.
23, be GRANTED and Plaintiff’s Complaint, ECF No. 1, be DISMISSED with prejudice. The
Bench Trial currently set for January 10, 2012, is likewise CANCELLED. A separate
judgment shall be entered on this same date.
IT IS SO ORDERED this 15th day of December 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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