Benford v. Dunklin County et al

Filing 34

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Dr. Charles Pewitt and Ashley Grisham's Motion to Dismiss for Failure of Plaintiff to Comply with Court Order (ECF No. 30) is DENIED without prejudice. IT IS FURTHER ORDERED that Plainti ffs Motion for Appointment of Counsel to Represent under 42 U.S.C. [§] 1983 and Request for Delay of Case Management Order Track 5 Disclosures of Documents by Plaintiff and Discovery of Defendants (ECF No. 32) is denied without prejudice as to his request for appointment of counsel and granted as to his request for delay. No later than December 20, 2018, Plaintiff shall submit to Defendants a list, including addresses, of all persons having knowledge or information of the facts giving ris e to his claim and all documents that Plaintiff believes mention, relate to, or in any way support his claims. IT IS FURTHER ORDERED that Plaintiff's "Request of Discovery of all Medical and Grievances Records from Dunklin County Jail" is DENIED inasmuch as Plaintiff is not entitled to all of Dunklin County Jail's medical and grievance records or individual files of other prisoners who are not parties to this action. IT IS FURTHER ORDERED that erring on the side of caution, D efendants shall provide copies of Plaintiff's medical and grievance records from Dunklin County Jail during the relevant time period related to Plaintiff's claims in this case. IT IS FURTHER ORDERED that Defendants shall answer the complaint no later than fourteen (14) days from the date of this Memorandum and Order. ( Response to Court due by 12/4/2018.). Signed by Magistrate Judge John M. Bodenhausen on 11/20/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
TERRY LEWIS BENFORD,
Plaintiff,
vs.
ASHLEY GRISHAM, et al.,
Defendants.

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Case No. 1:18 CV 5 JMB

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Dr. Charles Pewitt and Ashley Grisham’s
(collectively “Defendants”) Motion to Dismiss for Failure of Plaintiff to Comply with Court
Order (ECF No. 30), filed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and
Plaintiff Terry Lewis Benford’s (“Plaintiff”) Motion for Appointment of Counsel to Represent
under 42 U.S.C. [§] 1983 and Request for Delay of Case Management Order – Track 5 –
Disclosures of Documents by the Plaintiff and Discovery of Defendants (“Motion for
Appointment of Counsel” or “Request for Delay”) (ECF No. 32). The pro se prisoner Plaintiff
has responded to the motion to dismiss. The motion will be denied without prejudice for the
following reasons.
Pro se Plaintiff brought this prisoner civil rights action against Defendants and Defendant
Gina Whitlock (“Whitlock”),1 alleging that Defendants, the nurse and the doctor at the Dunklin
County Justice Department, were aware that he was diabetic, but failed to provide necessary
medical treatment, including administering insulin and ignoring requests for medical attention.
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On April 25, 2018, the Court dismissed Dunklin County and Nicole Green as defendants from
this action and the official capacity claims against Defendants Pewitt, Grisham, and Whitlock.
(ECF No. 10) On July 18, 2018, the Court granted in part and denied in part Defendants’ Motion
to Dismiss for Failure to State a Claim (ECF No. 16). Whitlock did not file a motion to dismiss
or join in Defendants’ pending motion to dismiss.
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(ECF No. 1) Plaintiff also alleges that Defendants did not provide medical care when his blood
sugar was extremely low.
In his Request for Delay, Plaintiff states that all of his medical and grievance records
from Dunklin County Jail have not been provided to him2 and requests his medical records from
his Kentucky doctors be provided to him.3 Plaintiff further states that he sent any information he
had to Defendants’ counsel and requests the Court appoint him counsel.
Defendants move to dismiss this case with prejudice because Plaintiff has failed to file
initial disclosures as required by Rule 26(a)(1)(A)(ii) by September 24, 2018, pursuant to the
Case Management Order (“CMO”) issued on August 24, 2018. (ECF No. 29) Defendants state
that although all Defendants have complied with the CMO’s initial disclosure deadline, Plaintiff
has failed to comply as he has not provided Defendants with any discovery or initial disclosures
as ordered. Defendants assert that Plaintiff’s non-compliance has prejudiced them in their
“ability to prepare appropriate dispositive Motions, conduct discovery and to otherwise defend
this cause of action as they cannot investigate the likely testimony of any individuals who may
be called as witnesses by the plaintiff in order to prepare for trial.” (ECF No. 31 at 2)
Rule 41(b) permits dismissal with prejudice “[f]or failure of a plaintiff to prosecute or
comply with these rules or any order of court.” Fed. R. Civ. P. 41(b). Nonetheless, the Eighth
Circuit has “recognized that dismissal with prejudice is an extreme sanction that should be used
only in cases of willful disobedience of a court order or where a litigant exhibits a pattern of
In their Memorandum of Law in Opposition to Plaintiff’s Request for Delay, Defendants state
that they “have produced to Plaintiff every document that is in these Defendants[’] possession.”
(ECF No. 33 at 3)
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The Court notes that Plaintiff’s medical records from his outside primary care providers in
Kentucky have no bearing on this case regarding whether he received necessary medical
treatment while incarcerated at Dunklin County Jail. Plaintiff has offered no explanation as to
why he needs these records. Nothing is preventing Plaintiff from obtaining these medical
records on his own.
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intentional delay.” Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000); Devoto v.
Corizon, Inc., 2014 WL 294326, at *3 (E.D. Mo. Jan, 27, 2014)((holding that dismissal with
prejudice is an extreme sanction that should be employed only in cases of willful disobedience
of a court order or persistent failure to prosecute complaint); see also Aziz v. Wright, 34 F.3d
587, 589 (8th Cir. 1994) (affirming Rule 41(b) dismissal of action filed by pro se plaintiff who
willfully disregarded a court order). Any sanction imposed by a district court under Rule 41(b)
must be proportionate to the litigant’s transgression. Rodgers v. Curators of the Univ. of Mo.,
135 F.3d 1216, 1219 (8th Cir. 1998). Because dismissal with prejudice is an extreme sanction,
the Eighth Circuit has admonished district courts that “this ultimate sanction should only be used
when lesser sanctions prove futile.” DiMercurio v. Malcom, 716 F.3d 1138, 1140 (8th Cir.
2013); see Bergstrin v. Frascone, 744 F.3d 571, 574-75 (8th Cir, 2014) (finding district court
abused its discretion in dismissing case with prejudice, without considering lesser sanctions).
“Under Rule 41(b), the focus is foremost on the egregiousness of the plaintiff’s conduct, and
only to a lesser extent on the prejudice to the defendant or the administration of justice in the
district court.” Burgett v. The General Store No. Two, Inc., 2018 WL 1444200, at *1 (8th Cir.
Mar. 23, 2018).4
Although Defendants are correct that a pro se litigant is not excused from complying with
court orders or substantive or procedural law, dismissal with prejudice due to Plaintiff’s failure

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Courts have found a variety of conduct sufficiently willful to justify dismissal, including the
willful failure to answer interrogatories, Fox-StudebakeWorthington, Inc., 516 F.2d 989, 993
(8th Cir. 1975), conduct exhibiting a pattern of intentional delay, Fletcher v. Southern Farm
Bureau Life Ins. Co., 757 F.2d 953, 956 (8th Cir. 1995), a persistent failure to respond to
discovery requests and disregard of a court’s order requiring the production of discovery
responses, Edina Courriers, LLC v. UPS Mail Innovations, 2008 WL 80000 (D. Minn. Jan. 4,
2008, and a failure to comply with an order for deposition. Aziz, 34 F.3d at 589.
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to provide timely initial disclosures is not proportionate to Plaintiff’s transgression.5 Bennett v.
Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002); Carman v. Treat, 7 F.3d 1379,
1381 (8th Cir. 1993) (pro se status does not entitle party to disregard Federal Rules of Civil
Procedure). While courts exercise caution in dismissing the claims of pro se plaintiffs, and pro
se pleadings are held to a less stringent standard than pleadings drafted by attorneys, pro se
plaintiffs are not excused from complying with court orders. Leach v. Waterway Car Wash, 217
Fed. Appx. 571 (8th Cir. 2007) (affirming dismissal of complaint pursuant to Rule 41(b), but
finding that plaintiff’s conduct did not arise to level of willful disobedience or intentional delay,
the court modified the dismissal to be without prejudice).
By filing a motion to dismiss with prejudice, Defendants request an extreme sanction in
the absence of evidence of willful disobedience or a pattern of intentional delay. Because
Defendants’ motion does not ask for the possibility of a lessor, more proportionate sanction, their
motion to dismiss will be denied without prejudice. See Fed. R. Civ. P. 37(b)(2). Eighth Circuit
precedent counsels against dismissing when, as in this case, a party fails to comply with a single
court order. See Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984) (revering a
district court’s dismissal and stating that “not every instance of failure to comply with an order of
court, however inexcusable, justifies total extinction of a client’s cause of action.”); see also
Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (reversing dismissal when plaintiff acting
pro se violated a single court order); cf. Hunt, 203 F.3d at 528 (noting the question whether to
dismiss “might be a closer one if [the plaintiff] had failed to follow only one or two of the court’s
specific instructions.”). In short, the extreme sanction of dismissal with prejudice no less would

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Rule 16(f) identifies sanctions available to the Court for the failure of a party to obey a
scheduling or pretrial order as those stated in Rule 37(b)(2)(A)((ii)-(vii). Fed. R. Civ. P. 16(f).
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be disproportionate to Plaintiff’s transgression. Accordingly, the Court will deny Defendants’
Motion to Dismiss without prejudice.
Plaintiff should not construe this Court’s ruling as excusing his failure to comply with the
CMO’s requirements. Plaintiff is forewarned that his case may be dismissed or other sanctions
may be imposed against him if he continues to fail to comply with the CMO or other Court
orders. See Henderson v. Renaissance Grand Hotel, 267 Fed.Appx. 496, 497 (8th Cir. 2008) (“A
district court has discretion to dismiss an action under Rule 41(b) for a plaintiff’s failure to
prosecute, or to comply with the Federal Rules of Civil Procedure or any court order.”); Link v.
Wabash Railroad Co., 370 U.S. 626, 630-31 (1962) (recognizing that a federal court has the
inherent authority to “manage [its] own affairs so as to achieve the orderly and expeditious
disposition of cases”).
In considering a motion to appoint counsel for an indigent plaintiff, the court should
“determine whether the nature of the litigation is such that plaintiff as well as the court will
benefit from the assistance of counsel.” Nelson v. Redfield Lithograph Printing, 728 F.2d 1003,
1005 (8th Cir. 1984). Having considered the factual complexity of this civil rights action, the
ability of Plaintiff to investigate the facts, the ability of Plaintiff to present his claim,6 and the
complexity of the legal issues involved in this case, see Johnson v. Williams, 788 F.2d 1319,
1323 (8th Cir. 1986), the Court concludes that appointment of counsel is not warranted at this
time. Plaintiff has presented non-frivolous allegations in his complaint. However, Plaintiff has
demonstrated, at this point, that he can adequately present his claims to this Court. The Court

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The undersigned notes that in an earlier deliberate indifference case, Plaintiff, without the
assistance of counsel, was able to complete discovery, to file his own summary judgment
motion, and to file opposition to a summary judgment motion. See Benford v. Hopper, 2:11 cv
121 JAR.
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will continue to monitor the progress of this case, and if it appears to this Court that the need
arises for counsel to be appointed, the Court will reconsider. Accordingly,
IT IS HEREBY ORDERED that Defendants Dr. Charles Pewitt and Ashley Grisham’s
Motion to Dismiss for Failure of Plaintiff to Comply with Court Order (ECF No. 30) is DENIED
without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel to
Represent under 42 U.S.C. [§] 1983 and Request for Delay of Case Management Order – Track
5 – Disclosures of Documents by Plaintiff and Discovery of Defendants (ECF No. 32) is denied
without prejudice as to his request for appointment of counsel and granted as to his request for
delay. No later than December 20, 2018, Plaintiff shall submit to Defendants a list, including
addresses, of all persons having knowledge or information of the facts giving rise to his claim
and all documents that Plaintiff believes mention, relate to, or in any way support his claims.
IT IS FURTHER ORDERED that Plaintiff’s “Request of Discovery of all Medical and
Grievances Records from Dunklin County Jail” is DENIED inasmuch as Plaintiff is not entitled
to all of Dunklin County Jail’s medical and grievance records or individual files of other
prisoners who are not parties to this action.
IT IS FURTHER ORDERED that erring on the side of caution, Defendants shall
provide copies of Plaintiff’s medical and grievance records from Dunklin County Jail during the
relevant time period related to Plaintiff’s claims in this case.
IT IS FURTHER ORDERED that Defendants shall answer the complaint no later than
fourteen (14) days from the date of this Memorandum and Order.
/s/ John M. Bodenhausen
UNITED STATES MAGISTRATE JUDGE
Dated this 20th day of November, 2018.

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