Winters v. West Lafayette City of et al

Filing 42

OPINION AND ORDER, DENYING 35 MOTION to Dismiss for failing to comply with a court order regarding discovery filed by West Lafayette City of, David Smith, FINDING MOOT 40 MOTION for Clarification filed by Brandon M Winters, Plaintiff' s motion for appointment of cousel is reconsidered and now GRANTS 33 motion to appoint counsel to the extent that the Court will attempt to find counsel willing to represent the Plaintiff. The Court's Scheduling Order is VACATED. Case stayed for 90 days while the court attempts to find counsel for the Plaintiff. (cc: Plaintiff) Signed by Chief Judge Philip P Simon on 11/27/12. (mlc) Modified on 11/28/2012 to edit text (mlc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
BRANDON M. WINTERS,
Plaintiff,
vs.
CITY OF WEST LAFAYETTE, et al.,
Defendants.

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CAUSE NO. 4:11-CV-49 PS

OPINION AND ORDER
Brandon Winters alleges that West Lafayette Police Officer David Smith shot him in the
jaw without provocation during an arrest (DE 1). The Defendants served interrogatories and
requests for production of documents on Winters’ counsel in January 2012, but Winters’ attorney
withdrew from the representation in March of 2012, before responding to these discovery
requests (DE 19; DE 35 at 1). The Defendants, asserting that Winters has failed to cooperate
with court orders to provide discovery, now seek dismissal of Winters’ case [DE 35]. For the
following reasons, that request is DENIED.
After several exchanges with Winters’ former attorney regarding discovery, on April 2,
2012 (after Winters’ counsel had withdrawn), the Defendants filed a motion to compel Winters
to comply with their discovery requests [DE 22]. The court granted the motion and ordered
Winters to respond, and also ordered the Defendants to serve the discovery requests directly on
Winters (who was, at that point, without counsel) [DE 24]. After he was served with the
discovery requests, Winters filed a response to the Court’s order, requesting an extension of time
to respond to the discovery requests, and the Court gave him until July 15, 2012 to respond to the
Defendants’ interrogatories and requests for production of documents and within which to serve

his initial disclosures [DE 30 at 1]. That deadline passed, although on July 24, 2012, the clerk’s
office received Winters’ answers to the interrogatories (DE 36).
On July 17, 2012, the Defendants filed a motion to dismiss, asserting that Winters had
not provided the requested discovery, and arguing that “[t]his continued failure on the Plaintiff’s
part to engage in the discovery process justifies dismissal of Plaintiff’s claims against these
Defendants” (DE 35 at 3). The record does not reflect that Winters has responded to the request
for production of documents or provided the Defendants with his initial disclosures. Winters has
filed a notice/request for clarification in which he states that any failure to respond to discovery
requests resulted from his lack of legal knowledge and lack of counsel and asks me not to
dismiss his claims (DE 40).
Federal Rule of Civil Procedure 37(b)(2)(A) provides that when a litigant “fails to obey
an order to provide or permit discovery . . . the court where the action is pending may issue
further just orders.” The rules prescribe a number of potential orders that the court may issue,
including prohibiting the disobeying party from producing evidence, striking pleadings, staying
the proceedings, dismissing the action, or rendering a default judgment. Fed. R. Civ P.
37(b)(2)(A)(i-vii). Although the Defendants’ request for dismissal of the action is considered a
“draconian” sanction, Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003), they are correct
that “Rule 37 allows for dismissal of a case when a party commits discovery violations such as
failing to make mandatory disclosures.” Sharpe v. Village of Fox Lake, 176 Fed. Appx. 694, 697
(7th Cir. 2006). While the imposition of such a sanction does not require me to identify a pattern
of discovery abuses, it does require me to make a finding of “wilfulness, bad faith or fault.” Id.

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(citing Maynard, 332 F.3d at 467). There must be “clear and convincing evidence of willfulness,
bad faith, or fault before dismissing a case.” Maynard, 332 F. 3d at 468.
This case is not one where there is clear and convincing evidence of willfulness, bad
faith, or fault. I conclude that Winters has attempted to respond to the Defendants’ discovery
requests, but has been unable to respond to some of the requests because of lack of
understanding or because he does not possess the materials requested, not because he was acting
in bad faith or willfully disregarding court orders.
At the time he filed his complaint and when the Defendants served their requests for
discovery, Winters was represented by counsel. However, following the departure of Winters’
counsel, it appears that the Defendants did not file the discovery requests with the Court, as the
local rules require them to do when dealing with a pro se litigant. See N.D. Ind. L.R. 26-2 (“[a]ll
discovery material in cases involving a pro se party must be filed”). The Defendants did,
however, attach copies of the discovery requests to their motion to compel documents (DE 22-1,
2, 3, and 4), and served the discovery requests on Winters, pursuant to the Court’s order (DE 25;
DE 26). There were twenty-three numbered interrogatories to the Plaintiff (DE 22-1). The
Plaintiff has responded to these interrogatories (DE 36), and answered all of the questions except
those dealing with his official capacity claim, which he stated that he did not comprehend.
Winters has responded to the interrogatories, and I do not consider that the Defendants have
suffered any actual harm from the fact that Winters interrogatory responses were late. The
Defendants, of course, have the option of following up on the interrogatories by deposing
Winters.

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The request for production of documents contains twenty-seven separate requests (DE
22-2), including a request for all medical records pertaining to his treatment for the injury
inflicted by Officer Smith, and a request for any unpaid bills arising from his treatment. The
remaining requests appear to be boilerplate requests of the sort that defense attorneys routinely
make in cases where the plaintiff is represented by counsel. All of the requests for production of
documents appear to deal solely with the question of damages. Given Winters’ status as a
prisoner, it is extremely unlikely that he has the medical records sought by the Defendants in his
possession or that he will be able to personally obtain them. In prisoner cases where the prisoner
is proceeding pro se, the normal mode of obtaining medical records not in the possession of
either the prison or the prisoner is for the Defendants to send a medical release form to the
prisoner, and for the Defendants’ counsel to use the signed form to obtain the medical records
from the hospital or other custodian. This avenue is still open to these Defendants, and I
conclude that as yet they have suffered no harm from the inability of Winters to provide the
requested medical records himself.
While not explicitly raised by the Defendants’ motion to dismiss, these discovery issues
bring up the issue of Winters’ representation. After Winters’ counsel withdrew, he filed a motion
for appointment of counsel which was preliminarily denied on June 13, 2012 (DE 34), reasoning
that Winters has one claim of excessive force against one police officer and his employer, and
that Winters “is aware of the facts of his case as they are within his personal experience, and, to
date, he has articulated his claims quite plainly and has diligently proceeded with the case” (DE
34 at 2). But in reviewing this case, it has became apparent to me that there is an official capacity
claim against the city and that Winters is not capable of adequately proceeding pro se on this

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claim, which he asserts he does not understand. To prove this claim, or even obtain the facts
necessary for me to determine if it is a valid claim that deserves to go to trial, will require
discovery and analysis that appears to be beyond Winters’ abilities. Accordingly, I sua sponte
reconsider the denial of appointment of counsel, and will grant the Plaintiff’s request for
appointment of counsel to the extent that I will attempt to find counsel willing to represent the
Plaintiff.
For the foregoing reasons, I DENY the Defendants’ motion to dismiss (DE 35),
reconsider the denial of the Plaintiff’s motion for appointment of counsel (DE 34), GRANT the
Plaintiff’s motion for appointment of counsel (DE 33) to the extent that I will attempt to find
counsel willing to represent the Plaintiff, VACATE the scheduling order, DENY the Plaintiff’s
notice/request for clarification (DE 40) as moot, and STAY the case for ninety days while I
attempt to find counsel willing to represent the Plaintiff.
SO ORDERED.
ENTERED: November 27, 2012
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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