Williams v. Lombardi et al
MEMORANDUM AND ORDER granting re: 19 MOTION to Dismiss Case For Failure to Cooperate in Discovery and Failure to Prosecute filed by Defendant Becky Lizenbee, Defendant Corizon and/or Correctional Medical Services (CMS), Defendant Micha el C. Hakala, Defendant Cleveland E. Rayford IT IS FURTHER ORDERED that Plaintiffs Prisoner Civil Rights Complaint under 42U.S.C. § 1983 is DISMISSED without prejudice for failure to prosecute or otherwise comply with Orders of this Court. A separate Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Ronnie L. White on 5/16/17. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CORNELIUS WILLIAMS , JR. ,
GEORGE LOMBARDI, et al. ,
No. 1:16CV102 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Dismiss for Failure to
Cooperate in Discovery and Failure to Prosecute (ECF No. 19). Plaintiff filed a response in
opposition, and the Defendants filed a reply. In addition, on April 10, 2017, the Court ordered
Plaintiff to show cause why the case should not be dismissed for failure to prosecute and failure
to comply with local and federal rules and the Orders of the Court. Plaintiff filed his response to
the show cause order on April 24, 2017.
On May 18, 2016, Plaintiff filed a Prisoner Civil Rights Complaint under 42 U.S.C. §
1983 . Plaintiff was incarcerated at the Southeast Correctional Center ("SECC") when he filed
this action; however, he has since been released. Plaintiff alleges that he has Hepatitis C and
that, while incarcerated at the SECC, Dr. Michael Hakala and Dr. Cleveland Rayford refused to
give him treatment even though is ammonia levels were elevated. He further claims that
Defendant Becky Lizenbee, a nurse, did not always document his complaints and interfered with
his treatment. Finally, he alleges that Corizon, LLC, had a policy of refusing treatment to
Hepatitis C patients because treatment is expensive. Plaintiff also sought to hold Defendants
George Lombardi and Ian Wallace liable as a result of their supervisory duties. However, on
August 8, 2016, the Court dismissed those parties. (ECF No. 11) On that same date, this Court
also granted Plaintiff's Motion to Proceed informa pauperis. (ECF No. 10)
On October 12, 2016, this Court entered a Case Management Order (" CMO") setting
forth, inter alia, the discovery deadlines in this cause of action. The CMO specified that no later
than November 14, 2016, the Plaintiff must submit to the Defendants a list of all persons having
knowledge or information of the facts giving rise to Plaintiff's claim, as well as all documents
Plaintiff believes support his claim. (CMO if 3, ECF No. 16) The CMO further provided,
" [f]ailure to make the above disclosures may result in sanctions, including dismissal, entry of
defaultjudgment or any other sanction that the Court deems just." (Id.) Additionally, the CMO
set the discovery completion date as January 16, 2017. (CMO if 4)
On February 16, Defendants filed a Motion to Dismiss for Failure to Cooperate in
Discovery and Failure to Prosecute, asserting that Plaintiff failed to serve initial disclosures,
respond to interrogatories and requests for production of documents, and appear for his
scheduled deposition. (ECF No . 19) In his response in opposition to the motion to dismiss and
response to show cause order, 1 Plaintiff does not address his failure to comply with the discovery
deadlines set forth in the CMO.
Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss a
case " [i[fthe plaintiff fails to prosecute or to comply with these rules or a court order ... ." Fed.
On April 10, 2017, the Court denied Plaintiff's motions for appointment of counsel and
advised Plaintiff that as a pro se litigant, he is bound by the litigation rules, including discovery
requirements. The Court also advised Plaintiff that he is responsible for following all rules and
orders, including the CMO. The Court then gave Plaintiff the opportunity to further address his
failure to prosecute or comply with court orders. (ECF No . 27)
R. Civ. P. 41(b). Unless the order states otherwise, a dismissal under Rule 41(b) operates as an
adjudication on the merits. Id. "Because dismissal with prejudice is an extreme sanction, it
should be employed only in cases of willful disobedience of a court order or persistent failure to
prosecute a complaint. Devoto v. Corizon, Inc., No. 2:13CV00019 ERW, 2014 WL 294326, at
*3 (E.D. Mo. Jan. 27, 2014)) (citation omitted). "The district court need not find that the party
acted in bad faith, but only that [he] acted intentionally as opposed to accidentally or
involuntarily." Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005) (citation omitted).
The Court is aware of the liberal pleading standards afforded to pro se litigants.
However, in the instant case, Plaintiff has failed to comply with Orders of this Court, including
the discovery deadlines in the CMO. In particular, Plaintiff failed to appear at his scheduled
deposition on January 4, 2017 or answer any of Defendants ' interrogatories or requests for
production of documents. 2 Such failure to engage in the discovery process has delayed the
progress of the litigation and hindered Defendants' ability to prepare a defense or file a timely
motion for summary judgment. 3 Further, despite the Court' s explicit order that Plaintiff show
cause "why this case should not be dismissed for failure to prosecute and failure to comply with
local and federal rules and the Orders of this Court, including the Case Management Order
related to discovery," Plaintiffs response is silent as to these issues. The Court has advised
Plaintiff of his responsibilities with regard to following Court Orders and discovery rules, as well
as afforded Plaintiff opportunities to address his failure to fulfill these responsibilities. Thus, the
Rule 37 (d) of the Federal Rules of Civil Procedure allows the Court to order sanctions,
including dismissal, where a party fails to appear at a properly noticed deposition or fails to
answer discovery requests. Fed. R. Civ. P. 37(d)(l)(A); Aziz v. Wright, 34 F.3d 587, 589 (8th
Cir. 1994) ("Federal Rule of Civil Procedure 37(d) allows the district court to, among other
sanctions, dismiss an action if a party ' fails to appear' for his or her deposition. ").
The Court granted the Defendants' motion to stay summary judgment deadline on February
Court finds that dismissal for failure to prosecute and failure to comply with court orders is
warranted in this case. See Devoto, 2014 WL 294326, at *3 (dismissing plaintiffs complaint for
failure to prosecute where the plaintiff failed to respond to discovery requests, ignored
defendant's motion to dismiss, and failed to respond to the court' s order to show cause why the
motion to dismiss should not be granted). However, in light of Plaintiffs alleged ongoing health
issues, the Court finds that dismissal without prejudice is the appropriate sanction in this case.
See Harris v. Forest Park Hosp ., 335 Fed. App 'x 665 (8th Cir. 2009) (affirming district court' s
dismissal of plaintiffs § 1983 action without prejudice due to plaintiffs failure to comply with
the court' s order directing him to provide defendants ' names and addresses to effectuate service
after two extensions of time).
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Failure to
Cooperate in Discovery and Failure to Prosecute (ECF No. 19) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Prisoner Civil Rights Complaint under 42
U.S .C. § 1983 is DISMISSED without prejudice for failure to prosecute or otherwise comply
with Orders of this Court. A separate Order of Dismissal will accompany this Memorandum and
Dated this 16th day of May, 2017.
UNITED ST ATES DISTRICT JUDGE
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