Huskey v. Burris et al

Filing 61

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Defendants' motion to dismiss is DENIED. ECF No. 58 . IT IS FURTHER ORDERED that, on or before September 25, 2019, Plaintiff shall provide his initial disclosures to Defendants and file a notice of compliance with the Court. Plaintiff is advised that the disclosures and documents themselves must be served directly on defense counsel, and only the notice of compliance should be filed with the Court. (Response to Court due by 9/25/2019.) Signed by District Judge Audrey G. Fleissig on 9/5/19. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERRY LEE HUSKEY, JR.,
Plaintiff,
v.
PAUL BURRIS, et al.,
Defendants.

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No. 4:18-cv-00731-AGF

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Dionne Kelly’s 1 motion to
dismiss for failure to comply with a Court Order, pursuant to Federal Rule of Civil
Procedure 41(b). ECF No. 59. For the reasons set forth below, the motion will be
denied.
This prisoner civil rights case was filed by Plaintiff, who is proceeding pro se, on
May 10, 2018. Following a frivolity review, the Court entered a Case Management
Order on July 17, 2019, which required each party to make certain initial disclosures no
later than August 15, 2019. ECF No. 55. On August 19, 2019, the Clerk of the Court
sent a letter to Plaintiff returning discovery documents pursuant to Local Rule 3.02. 2

1

Defendant Lt. Matthew Shults, represented by different counsel, did not join the
motion or file any response to the motion.
2

Local Rule 3.02(A) provides:
In civil actions, discovery and disclosure materials pursuant to Fed.R.Civ.P.
26, 30, 31, 33, 34, 35, and 36, and the certificates of their service, shall not
be filed with the Court except as exhibits to a motion or memorandum.

ECF No. 57. On August 28, 2019, the Clerk of the Court again returned discovery
documents to Plaintiff pursuant to Local Rule 3.02.
On August 26, 2019, Defendant Kelly filed this motion to dismiss, citing
Plaintiff’s failure to provide her with any discovery or initial disclosures by the August
15, 2019 deadline. ECF No. 58, 59. Plaintiff has not responded to the motion, and the
time to do so has passed.
Federal Rule of Civil Procedure 41(b) allows a district court to dismiss a cause of
action due to a plaintiff’s failure to comply with a court order. However, the remedy
provided by the Rules for failure to make a timely disclosure is that “the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is harmless.” Certain
Underwriters at Lloyd’s v. SSDD, LLC, 301 F.R.D. 391, 393 (E.D. Mo. 2014) (citing
Fed. R. Civ. P. 37(c)(1)).
Here, Defendant Kelly has not cited any authority under which the Court may
dismiss this case for Plaintiff’s failure to timely make Rule 26(a)(1) initial disclosures,
nor did Defendant Kelly attempt to obtain the disclosures through a Rule 37 motion to
compel. See Bryant v. Applied Sweepers, Inc., No. 4:09-CV-1802 CAS, 2011 WL
3510842, at *7 (E.D. Mo. Aug. 10, 2011) (denying motion to dismiss for failure to make
initial disclosures for lack of authority and failure to file a motion to compel). Further, it
appears that the failure to provide the disclosures may have resulted from the pro se
Plaintiff’s failure to understand proper procedures, and Defendant Kelly has not

explained how she would be harmed or prejudiced by a late disclosure. Accordingly, the
motion to dismiss will be denied.
However, the Court will direct Plaintiff to provide his initial disclosures to
Defendants on or before September 25, 2019. Plaintiff is reminded that although he is
proceeding pro se, he must comply with Court rules and the Federal Rule of Civil
Procedure. See Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005) (“Even pro se
litigants must comply with court rules and directives); Schooley v. Kennedy, 712 F.2d
372, 373 (8th Cir. 1983) (declaring pro se parties are not excused from complying with
procedural and substantive law).
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is DENIED.
ECF No. 58.
IT IS FURTHER ORDERED that, on or before September 25, 2019, Plaintiff
shall provide his initial disclosures to Defendants and file a notice of compliance with the
Court. Plaintiff is advised that the disclosures and documents themselves must be served
directly on defense counsel, and only the notice of compliance should be filed with the
Court.

Dated this 5th day of September, 2019.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE