Kimble v. Coffeeville Police Dept. et al

Filing 95

ORDER denying 91 Motion to Dismiss; denying 93 Motion for Protective Order. Signed by Magistrate Judge Roy Percy on 5/20/19. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
TYROWONE LOUIS KIMBLE

PLAINTIFF

V.

CIVIL ACTION NO.: 3:18CV38-NBB-RP

COFFEEVILLE POLICE DEPT., ET AL.

DEFENDANTS

ORDER
Before the Court is (1) Defendant Gage Vance’s motion to dismiss this action for
Plaintiff Kimble’s failure to comply with the Court’s prior orders, or alternatively, for sanctions
pursuant to Rule 37 of the Federal Rules of Civil Procedure, and (2) Kimble’s motion for a
protective order to protect him against Defendants’ attempts at discovery. See Docs. #91, #93.
I.

Background

Kimble initiated the instant action against Defendants Vance and Payne, alleging that
officers drew their weapons to coerce him into giving consent to search his home. Defendant
Vance sought and obtained leave of Court to depose Kimble, and Defendant Vance subsequently
noticed and re-noticed the proceeding. According to counsel for Defendant Vance, Kimble was
uncooperative and ended the deposition, stating that he was annoyed and intended to move for a
protective order. Defendant Vance filed the instant motion for dismissal or sanctions, claiming
that he is prejudiced by his inability to investigate the allegations against him. Conversely,
Kimble has filed a motion for a protective order, alleging that counsel for Defendant was hostile
and seeking to be exempted from attending any future depositions.
II.

Standard

This Court has the inherent authority to sanction a party for conduct amounting to bad
faith during the course of litigation. See In re Yorkshire, LLC, 540 F.3d 328, 332 (5th Cir. 2008).

Federal Rule of Civil Procedure 37(d) allows for sanctions when a party fails to appear for a
properly noticed deposition. Fed. R. Civ. P. 37(d)(3). These sanctions may include directing
that facts be taken as established, prohibiting the party from supporting or opposing claims or
defenses, striking pleadings, staying the proceedings until the order is obeyed, dismissing the
action, or rendering default judgment. Fed. R. Civ. P. 37(b)(2).
III.

Discussion

Previously, this Court ordered discovery, instructed Kimble about the propriety of a
deposition, and entered an Order authorizing the deposition. See Docs. #73, #75. Counsel for
defendant Vance has noticed and re-noticed the deposition in an attempt to accommodate
Kimble. See Docs. #85, #87, #91. According to counsel for Defendant Vance, during Kimble’s
deposition on April 24, 2019, Kimble was uncooperative, refused to answer innocuous questions,
and ended the deposition when counsel moved onto questions regarding the merits of his claims.
He stated that counsel was “annoying [him]” and that he would “file a protective order.” See
Doc. #91. Defendant Vance notes that in recent litigation in this Court on an unrelated matter,
this Court denied Kimble’s motion for protective order over his claims that he was not receiving
notices of his deposition and that the defendants were harassing him. See Docs. #90-1, #90-2. In
that case, the Court advised Kimble that the defendants were entitled to conduct discovery. See
id. Therefore, Defendant notes, Kimble is well aware of his duty to comply with discovery and
should be sanctioned for his vexatious behavior.
It is clear to the Court that counsel for Defendant has attempted to accommodate Kimble.
Kimble’s refusal to meaningfully participate in discovery in a case he initiated has wasted the
time and resources of this Court, the attorneys for Defendant, and prison staff. This Court has
previously advised Kimble that he cannot sustain a lawsuit if he is unwilling to comply with the
Court-ordered discovery. The fact that Kimble felt disrespected during the deposition is an
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insufficient reason to fail to comply. Moreover, the fact that the Court has not been more
favorable to Kimble’s motions is an indication of their lack of merit and not bias by the Court.
However, the Court finds that dismissal of the instant lawsuit and imposition of monetary
expenses is too severe a sanction at present. Therefore, upon due consideration of the arguments
presented in each party’s respective motion, the Court ORDERS:
That both Defendant Vance’s motion [91] and Plaintiff’s motion [93] are DENIED.
That Kimble is ORDERED to submit to a deposition at a time and place noticed by
counsel for Defendant Vance and meaningfully participate in the deposition. That is, Kimble
must answer questions factually and responsively and not by merely referring the questioner to
allegations in his complaint or other filings. Kimble is warned that failure to meaningfully
participate in the deposition may result in this Court dismissing this case with prejudice without
further notice.
SO ORDERED this 20th day of May, 2019.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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