Rose v. Shelby County, Kentucky et al

Filing 280

MEMORANDUM OPINION & ORDER: 1. Defendants' Motions to Dismiss [R. 267 ; R. 268 ; R. 269 ] are GRANTED; 2. Plaintiff's claims in this matter are DISMISSED WITHOUT PREJUDICE for failure to prosecute; and, 3. Defendant Votaw's pending Motion to Compel [R. 231 ] is DENIED AS MOOT. Signed by Judge Gregory F. Van Tatenhove on 1/18/2023.(JJ)cc: COR, Donnita Robinson via US Mail

Case: 3:17-cv-00097-GFVT-EBA Doc #: 280 Filed: 01/19/23 Page: 1 of 6 - Page ID#:
3036

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
DONNITA ROBINSON,
Plaintiff,
v.
SHELBY COUNTY, KENTUCKY, et al.,
Defendants.

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Civil No. 3:17-cv-00097-GFVT

MEMORANDUM OPINION
&
ORDER

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This matter is before the Court on three Motions to Dismiss and a Motion to Compel
Settlement. [R. 231; R. 267; R. 268; R 269.] Three plaintiffs filed this action alleging
widespread sexual abuse at the Shelby County jail. [See R. 9.] Divisions have arisen between
Plaintiff Robinson and her co-Plaintiffs and their prior counsel throughout this case. Now, Ms.
Robinson is the only remaining Plaintiff, is unrepresented, and has not communicated with the
Court or responded to any of its orders. Because Ms. Robinson failed to prosecute her claims,
the Motions to Dismiss [R. 267; R. 268; R 269] are GRANTED. The Motion to Compel her to
execute settlement documents [R. 231] is DENIED AS MOOT.
I
The three Plaintiffs were all jailed at the Shelby County Detention Center, where they
allege they were abused by jailers, which supervisors ignored. [R. 9.] The parties conducted
discovery from early 2018 to mid-2019. Some of the Plaintiffs’ claims survived summary
judgment and were set to proceed to trial in September 2021. [R. 140; R. 149; R. 156.] The
Plaintiffs moved to bifurcate Ms. Robinson’s trial from that of Ms. Quire and Ms. Castillo
because of expected testimony that Ms. Robinson offered to pay inmates for favorable testimony.

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[R. 196.] At the final pre-trial conference, the Court signaled that bifurcation was unnecessary.
[R. 209 at 17.] Counsel for the Plaintiffs then raised a concern with Ms. Robinson’s competency
and ability to participate in trial. Id. at 18. The Court continued trial and ordered supplemental
briefing. [R. 203.] The Plaintiffs then indicated Ms. Robinson is competent to proceed to trial,
but still sought bifurcation. [R. 207.] The Court denied the Motion to Bifurcate and set trial for
October 2022. [R. 217; R. 220.]
Five weeks before trial, counsel for the Plaintiffs moved to withdraw his representation of
Ms. Robinson and filed a related Motion to Bifurcate trial between Ms. Robinson and her coPlaintiffs. [R. 224.] Counsel indicated that he and Ms. Robinson have “irreconcilable
differences concerning all remaining aspects of this case, the attorney-client relationship has
completely broken down, Robinson has not kept counsel informed of current contact
information, and Robinson has failed to fulfill an obligation such that continued representation
would result in an unreasonable financial burden for counsel.” Id. at 2-3. He stated that Ms.
Robinson did not object to his withdrawal. Id. at 2.
Magistrate Judge Atkins granted the Motion to Withdraw. [R. 243.] Consequently, the
Court granted the Motion to Bifurcate and generally continued Ms. Robinson’s trial. [R. 244.]
The trial continuance was specifically tied to resolution of Defendant Votaw’s Motion to Compel
Ms. Robinson to execute settlement documents, which remains pending. [R. 231.] That Motion
alleges that Ms. Robinson settled her claim against Defendant Votaw and seeks enforcement of
the agreement. Id.
The Court directed the clerk’s office to serve the Order bifurcating trial on Ms. Robinson
at her last known address, which her prior counsel filed at the Court’s request. [R. 244 at 7.]
The Order was returned as undeliverable, signaling that Ms. Robinson no longer resides at her

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last known address. [R. 256.] The Clerk forwarded the Order to the forwarding address
provided on the returned letter. Id. Within that Order, the Court also ordered Ms. Robinson to
inform the Court within thirty days of service whether she intended to proceed pro se or obtain
counsel. [R. 244.] Judge Atkins also ordered Ms. Robinson’s withdrawn counsel to serve her
with a copy of the order granting the Motion to Withdraw. [R. 243 at 2.] He confirmed that he
sent the order by certified mail to Ms. Robinson’s last known address. [R. 248.] That order
required Ms. Robinson to advise the clerk of her current address and respond to the Motion to
Compel. [R. 243.] So, Ms. Robinson was under three court orders at this point. She did not
comply with any of them and has not otherwise communicated with the Court.
The Defendants filed three Motions to Involuntarily Dismiss Ms. Robinson’s claims
against them under Rule 41(b). [R. 267; R. 268; R. 269.] Defendants Quijas and Votaw filed
separate Motions to Dismiss which adopt and incorporate Waits and Aldridge’s Motion. [R.
268; R. 269.] Defendant Votaw also stated that his pending Motion to Compel would be moot if
the Court grants the Motion to Dismiss. [R. 269 at 2.]
II
Federal Rule of Civil Procedure 41(b) states that, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it.” Fed. R. Civ. P. 41(b). District courts may use this rule “as a tool to effect
management of its docket and avoidance of unnecessary burdens on the tax-supported courts and
opposing parties.” Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). Courts
consider four factors to determine whether they should dismiss an action under Rule 41(b):
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and

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(4) whether less drastic sanctions were imposed or considered before dismissal was
ordered.
Id. (citing Stough v. Mayville Community Sch., 138 F.3d 612, 615 (6th Cir. 1998)). “Although
typically none of the factors is outcome dispositive, . . . a case is properly dismissed by the
district court where there is a clear record of delay or contumacious conduct.” Id. Dismissing a
claim for failure to prosecute is a harsh sanction that is only appropriate in extreme situations.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.2005).
First, numerous filings demonstrate that Ms. Robinson does not intend to proceed with
this action. Her prior counsel indicated that Ms. Robinson would not participate in trial of her
own accord, stating that he “expects that a subpoena would be necessary to secure Robinson’s
appearance [at trial] regardless of the Court’s ruling” on the Motion to Bifurcate. [R. 225 at 2.]
An ex parte filing detailing the dispute between Ms. Robinson and her prior counsel shed more
light on this statement. [R. 238.] While the attorney-client privilege protects the details of that
filing, its contents further support this order.
Ms. Robinson’s failure to prosecute appears willful because she has failed to respond to
multiple Orders. [See, e.g. R. 226; R. 243; R. 244; R. 264.] Judge Atkins ordered her to respond
to her attorney’s Motion to Withdraw. [R. 226.] When Judge Atkins granted that Motion, he
ordered her to advise the Court of her current address. [R. 243.] In granting the Motion to
Bifurcate her trial from that of her co-Plaintiffs, the Court ordered her to indicate her intent to
proceed pro se or find new representation. [R. 244.] Ms. Robinson did not comply with any of
these Orders, nor has she communicated with the Court in any other way.
Her prior counsel was ordered to serve her with two of these orders at her last known
address, and he confirmed that he did so. [R. 226; R. 228; R. R. 243; R. 248.] The Court also
ordered the Clerk of Court to serve her with the order bifurcating her trial at her last known
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address. [R. 244.] That attempt was returned as undeliverable but the Clerk resent it to the
forwarding address provided by the postal service. [R. 256.] Ms. Robinson never responded. It
is possible that she has not received these Orders because the filing sent to her last known
address was returned as undeliverable. [R. 256.] The clerk re-sent it to the forwarding address,
and this mailing was not returned, but this does not guarantee receipt. Id. Nevertheless, the
Court made every effort to ensure Ms. Robinson received these Orders. It is also reasonable to
expect her to keep tabs on an active case that she is aware she is involved in, which she has not
done. Ultimately, there is a “clear record of delay or contumacious conduct by the plaintiff” that
justifies involuntary dismissal. Knoll, 176 F.3d at 363.
Second, the Defendants are prejudiced by Robinson’s inaction because, as long as the
action remains pending, they are subject to potential liability. Third, one of the Court’s Orders
directed Ms. Robinson to Local Rule 5.3, which warns that pro se litigants’ cases may be
dismissed if they fail to maintain an updated address. [R. 243.]
Finally, the lesser sanction of dismissal without prejudice is available and appropriate.
The Defendants all seek dismissal with prejudice. [R. 267; R. 268; R. 269.] But the Court finds
that dismissal without prejudice is more appropriate. The Court cannot be sure that Ms.
Robinson is aware of its recent Orders because they were sent to an address from which one
Order was returned undeliverable. [See R. 256.] This would have been avoided by compliance
with Local Rule 5.3, which imposes on pro se parties an ongoing duty to apprise the Court of
their current address. There is a possibility, albeit a farfetched one, that Ms. Robinson is entirely
unaware of the Court’s Orders and believes she is still represented. Because this possibility
exists, dismissal without prejudice more accurately balances “sound judicial case and docket
management” with “the public policy interest in the disposition of cases on their merits.” Muncy

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v. G.C.R., Inc., 110 Fed. App’x 552, 557 n.5 (6th Cir. 2004). District Courts frequently dismiss
pro se actions without prejudice when mail is repeatedly returned as undeliverable. See, e.g.,
Turner v. Bryant, 2020 WL 3979692 (M.D. Tenn. June 9, 2020); Fisher v. Samuthram, 2018 WL
684676 (S.D. Ohio Feb. 2, 2020).
III
Overall, Ms. Robinson has had multiple opportunities to communicate with the Court and
explain her absences or otherwise express her intent to proceed with this case. She has not done
so. Accordingly, it is hereby ORDERED as follows:
1. The Defendants’ Motions to Dismiss [R. 267; R. 268; R. 269] are GRANTED;
2. Plaintiff’s claims in this matter are DISMISSED WITHOUT PREJUDICE for
failure to prosecute; and,
3. Defendant Votaw’s pending Motion to Compel [R. 231] is DENIED AS MOOT.

This the 18th day of January, 2023.

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