Sullins v. Garden City Police Department et al

Filing 21

ORDER granting 20 Motion to Compel. Plaintiffs are directed to respond within 14 days. Defendants are directed to submit an itemized list of expenses within 14 days. Plaintiffs shall have 11 days after that filing to contest. Signed by Magistrate Judge G. R. Smith on 2/17/16. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BILLY RAY SULLINS and
ANGELA DAWN SULLINS,
Plaintiff,
v.

Case No. CV415-101
(Consolidated with CV415-138)

L. CPL. TROY EDENFIELD, et al. ,
Defendants.

ORDER
Proceeding pro se , plaintiff Billy Ray Sullins and his wife, Angela
Dawn Sullins, brought this 42 U.S.C. § 1983 case against Garden City,
Georgia police officers for violations of their Fourth Amendment rights.
CV415-101, doc. 5 at 2; CV415-138, doc. 5. After the defendants
answered (and Angela’s separately filed case was consolidated into this
case, CV415-101), they served discovery upon the plaintiffs but have
received no response. They thus move to compel. CV415-101, doc. 20.
Upon review, the Court finds the motion supported and the discovery
(e.g. , interrogatories requesting the identities of eye witnesses, whether

Billy Ray Sullins has ever been convicted of a crime, etc., doc. 20-2 at 3)
relevant and appropriate.
Plaintiffs, however, have failed to respond to the motion. See doc.
20) (“Responses due by 2/8/2016”). Because the defendants’ motion is
supported and unopposed per Local Rule 7.5 (no response means no
opposition), it is GRANTED . Doc. 20. Plaintiffs’ failure to respond to
defendants’ discovery within fourteen days after the date this Order is
served will expose them to a recommendation of dismissal under
abandonment and disobedience grounds. See L.R. 41(b). 1

1

In the Eleventh Circuit,
the district court may sua sponte dismiss an action pursuant to Federal Rule of
Civil Procedure 41(b) if the plaintiff fails to comply with court rules or a court
order. See Fed.R.Civ.P. 41(b); Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d
1333, 1337 (11th Cir. 2005). The district court also has inherent authority to
sanction parties for “violations of procedural rules or court orders,” up to and
including dismissals with prejudice. Donaldson v. Clark , 819 F.2d 1551, 1557
n. 6 (11th Cir. 1987); see also Betty K Agencies , 432 F.3d at 1337.

Smith v. Bruster , 424 F. App’x 912, 914 (11th Cir. 2011) ( Sua sponte dismissal with
prejudice of arrestees' pro se § 1983 action against law enforcement officers, which
alleged that officers' execution of search warrant and seizure of property violated the
Fourth Amendment, was proper where one of the plaintiffs had forged the other's
signature on several documents filed with the court; court had advised plaintiffs that
it suspected one of the signatures on several filings was not authentic and although
they were provided with opportunity to explain the discrepancy, they failed to do so
in sworn response); see also Local Rule 41(b) (authorizing dismissal for neglect of any
Court order); W illiams v. Talladega Cmty. Action Agency , 528 F. App'x 979, 980 (11th
Cir. 2013) (“Here, the district court did not abuse its discretion in dismissing the case
with prejudice when Williams did not comply with the order to re-file her

2

Defendants do not seek Fed. R. Civ. P. 37 sanctions for plaintiffs’
failure to respond. Payment of expenses (including attorney’s fees),
however, typically is mandatory when, “after giving an opportunity to be
heard,” courts grant motions to compel. Fed. R. Civ. P. 37(a)(5)(A).
Only if (1) “the movant filed the motion before attempting in good faith
to obtain the . . . discovery without court action;” (2) the failure to
respond was justified; or (3) “other circumstances make an award of
expenses unjust, may a court decline to award expenses to a prevailing
party. Id.
None of those exceptions apply here and plaintiffs had their chance
to be heard. Consequently, the Court ORDERS that they pay
defendants’ “reasonable expenses incurred in making” their motion to
compel, “including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A).
Defendants must submit an itemized list of expenses and fees within
fourteen days of the date this Order is served so the Court can evaluate
their reasonableness and issue an expense award. 2

complaint.”); Rogers v. Toombs Cty. Bd. of Educ ., 2015 WL 3464126 at * 1 (S.D. Ga.
May 6, 2015).
Upon motion, courts can levy sanctions beyond fees and expenses against parties
who, “after being properly served with interrogatories under Rule 33 or a request for
inspection under Rule 34, fail[] to serve . . . answers, objections, or written
2

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To summarize: Defendants’ motion to compel is GRANTED . Doc.
20. Plaintiffs’ failure to respond to defendants’ discovery within
fourteen days after the date this Order is served will expose them to a
recommendation of dismissal under abandonment and disobedience
grounds.

See L.R. 41(b). Defendants, meanwhile, must submit an

itemized list of expenses, including attorney’s fees, within 14 days from
the date this Order is served. Plaintiffs shall have 11 days after that
filing to contest defendants’ Rule 37 cost showing.

SO ORDERED, this 17th day of February, 2016.

-

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA

responses.” Fed. R. Civ. P. 37(d)(1). Those sanctions can include “rendering a
default judgment against the disobedient party.” Id. at (d)(3) & (b)(2)(A)(vi); United
States v. Certain Real Property Located at Route 1, Bryant, Ala. , 126 F.3d 1314, 1317
(11th Cir. 1997) (“Rule 37(d) deals with sanctions used when a party fails to
cooperate in discovery and “allows the court to strike out pleadings and render
default judgment against the disobedient party.”). If plaintiffs fail to comply with
this Order and that noncompliance “is due to willful or bad faith disregard” for this
Court’s authority, Cox v. Am. Cast Iron Pipe Co. , 784 F.2d 1546, 1556 (11th Cir.
1986), the undersigned will not hesitate to recommend dismissal on these additional
grounds. Cf. Malautea v. Suzuki Motor Co. , 987 F.2d 1536, 1542 (11th Cir. 1993)
(affirming this Court’s imposition of a default judgment and other sanctions on a
willfully disobedient defendant).

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