Toney (ID 71755) v. Harrod et al

Filing 167

MEMORANDUM AND ORDER denying 161 Plaintiff's Motion for Sanctions. Defendant Zacory Sullivan shall serve his discovery responses, without objections, to Plaintiff's Interrogatories and Request for Production of Documents, including produc ing all responsive documents, on or before September 21, 2020. No later than September 21, 2020, Defendant Zacory Sullivan shall show cause in writing to the Honorable Eric F. Melgren, why he should not be held in contempt of court and/or fined up to $100 per day from March 19, 2020, until the day his discovery responses are actually served. Signed by Magistrate Judge Teresa J. James on 9/3/2020. (ts)

Case 5:15-cv-03209-EFM-TJJ Document 167 Filed 09/03/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL M. TONEY,

)
)
Plaintiff,
)
)
v.
)
)
GORDON HARROD, et al.,
)
)
Defendants. )

Case No. 15-cv-3209-EFM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Sanctions (ECF No. 161).
Plaintiff asks the Court to enter default judgment against Defendant Zacory Sullivan as a
sanction for his repeated failure to respond to Plaintiff’s discovery requests. Defendant Sullivan,
through counsel, opposes the motion insofar as the relief it seeks, but does not dispute the factual
basis for the motion.
Background
This case arises out of events that occurred when Plaintiff was incarcerated at the El
Dorado Correctional Facility.1 Plaintiff asserts that Defendant Sullivan violated his Eighth
Amendment right to be free of cruel and unusual punishment when Defendant Sullivan slammed
the food port door on his hand, causing a cut on the back of his hand, and when Defendant
Sullivan sprayed him with mace, burning Toney’s skin and irritating his eyes, nose, mouth, and
throat. Plaintiff filed this action pro se, and the court granted his motion to proceed in forma
pauperis but denied his first motions for appointment of counsel. Ultimately, however, the

1

See Plaintiff’s Third Amended Complaint, ECF No. 81.

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undersigned Magistrate Judge granted Plaintiff’s oral motion for appointment of counsel,2 and
granted in part counsel’s motion for leave to file a Third Amended Complaint.3
Plaintiff obtained personal service on Defendant Sullivan on May 16, 2018, but
Defendant Sullivan failed to timely file a responsive pleading. On June 28, 2018, Plaintiff moved
for entry of default.4 The following day, counsel entered an appearance for Defendant Sullivan,5
and Plaintiff moved to withdraw his default motion.6 District Judge Melgren permitted the
withdrawal.7 Counsel for Defendant Sullivan filed a motion seeking an extension of time to file
an answer or other response,8 and the undersigned Magistrate Judge granted the motion.9
Defendant Sullivan responded to the Third Amended Complaint by filing a motion to
dismiss,10 which Judge Melgren denied on March 13, 2019.11 Pursuant to Federal Rule of Civil
Procedure 12(a)(4)(A), Defendant Sullivan’s answer to the Third Amended Complaint was due
on March 27, 2019. To date, Defendant Sullivan has not answered.12
Plaintiff served interrogatories and requests for production of documents on Sullivan,
who failed to respond after Plaintiff’s counsel had agreed to multiple requests by defense counsel

2

ECF No. 61.

3

ECF No. 79.

4

ECF No. 97.

5

ECF No. 98.

6

ECF No. 99.

7

ECF No. 101.

8

ECF No. 100.

9

ECF No. 103.

10

ECF No. 113.

11

ECF No. 140.

12

The Court notes that apart from the instant motion, Plaintiff may avail himself of the
procedure set forth in Fed. R. Civ. P. 55(a) to obtain default, which he could follow with
application for default judgment based on Defendant Sullivan’s failure to answer.

2

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for additional time. When defense counsel was unable to locate Defendant Sullivan, Plaintiff
filed a motion to compel his responses,13 which the undersigned Magistrate Judge granted,
giving Defendant Sullivan a 21-day deadline to comply.14 Still having received no discovery
responses, Plaintiff filed the instant motion.
Defendant Sullivan’s counsel states that he has been unable to locate his client since
Judge Melgren denied his motion to dismiss and the stay of discovery was lifted. Counsel states
that Defendant Sullivan is no longer employed by the Department of Corrections, and that
correspondence counsel sent to Defendant Sullivan to three different mailing addresses was
returned. Although it is not clear whether the mail was returned as refused or as undeliverable,
the result is that Defendant Sullivan has not complied with an order compelling him to respond
to discovery, nor has he communicated with his counsel.
Although Plaintiff is justified in seeking sanctions against Defendant Sullivan, the Court
finds default judgment is not the appropriate mechanism at this time. However, the Court will
order Defendant Sullivan to show cause why he should not be held in contempt of court and/or
fined for failure to comply with the court’s discovery order.
Dismissal as a Sanction
A court has discretion to “order sanctions if . . . a party, after being properly served with
interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers,
objections, or written response.”15 In addition, if a party fails to obey “an order to provide or
permit discovery,” a court has discretion to “dismiss[] the action or proceeding in whole or in

13

ECF No. 156.

14

ECF No. 158.

15

Fed. R. Civ. P. 37(d)(1)(A)(ii).

3

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part.”16 “[D]ismissal or other final disposition of a party’s claim ‘is a severe sanction reserved for
the extreme case, and is only appropriate where a lesser sanction would not serve the ends of
justice.’”17 In evaluating whether dismissal is appropriate, the court must consider “(1) the
degree of actual prejudice to the [other party]; (2) the amount of interference with the judicial
process; . . . (3) the culpability of the litigant; (4) whether the court warned the party in advance
that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.”18
The Court recognizes that Defendant Sullivan’s failure to provide discovery responses
causes prejudice to Plaintiff. Without the responses and knowing that Defendant Sullivan is not
available for deposition, Plaintiff is stymied in developing facts to prosecute his Eighth
Amendment claim, thereby causing interference with the judicial process. Defendant Sullivan
has absented himself from the case, but the Court has not warned him that his failure to comply
with its discovery order would subject him to the possible sanction of default judgment.19
Although such warning is not mandatory, the Court finds it appropriate to formally caution
Defendant Sullivan that default judgment may be entered against him if he continues to fail to
comply with the federal rules and this Court’s orders.
The court will once again order Defendant Sullivan to serve his discovery responses.
Because Defendant Sullivan failed to make timely objections to Plaintiff’s discovery requests, he
has waived any objections he may have asserted.20 If Defendant Sullivan does not serve his

16

See id. Rule 37(b)(2)(A)(v).

17

Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (citation omitted).

18

Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir. 2002) (citation omitted).

19

See ECF No. 158.

20

See Starlight Int’l, Inc. v. Herlihy, 181 F.R.D. 494, 497 (D. Kan. 1998).

4

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discovery responses and produce all responsive documents on or before September 21, 2020,
Plaintiff may move for entry of default and file a motion for default judgment for failure to
comply with the federal rules and court orders. As the Court has noted, Plaintiff may instead
choose to move for entry of default for Defendant Sullivan’s failure to timely file an answer to
Plaintiff’s Third Amended Complaint.
ORDER TO SHOW CAUSE
In light of Defendant Sullivan’s conduct, the Court orders him to show cause in writing
by September 21, 2020, why he should not be held in contempt of court and/or fined up to $100
per day from March 19, 2020 (the date the Court granted the motion to compel and ordered him
to serve his discovery responses) until the day his discovery responses are actually served.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Sanctions (ECF No. 161) is
denied. Defendant Zacory Sullivan shall serve his discovery responses, without objections, to
Plaintiff’s Interrogatories and Request for Production of Documents, including producing all
responsive documents, on or before September 21, 2020.
IT IS FURTHER ORDERED that no later than September 21, 2020, Defendant Zacory
Sullivan shall show cause in writing to the Honorable Eric F. Melgren, why he should not be
held in contempt of court and/or fined up to $100 per day from March 19, 2020, until the day his
discovery responses are actually served.
Dated this 3rd day of September, 2020 at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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