Lowery v. Shook et al

Filing 60

ORDER DENYING 56 Motion and STRICKING 57 Plaintiff's Discovery Response. Parties shall complete Discovery within 30 days and shall file Dispositive Motions within 60 days of entry of this order. (Discovery due by 7/3/2024, Motions due by 8/2/2024). Signed by Chief Judge Martin Reidinger on 6/3/2024. (Pro se litigant served by US Mail.) (smm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:22-cv-00178-MR
JOHN N. LOWERY,

)
)
Plaintiff,
)
)
vs.
)
)
FNU SHOOK, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on a “Motion for Sanctions; Motion
to Compel; [and] Motion to Deem Admitted Defendant’s [sic] Requests for
Admissions to the Plaintiff” by Defendants Shook, Cook, McGrady, and Miller
(the “Moving Defendants”). [Doc. 56]
I.

BACKGROUND
Pro se Plaintiff John N. Lowery (“Plaintiff”), formerly a prisoner of the

State of North Carolina,1 filed this action pursuant to 42 U.S.C. § 1983 on
December 1, 2022, against Defendants Michael Shook, Brent Snuffer,
Jeffrey B. Miller, Jordan A. Cook, and Joshua McGrady, all identified as
Correctional Officers at Alexander Correctional Institution (“Alexander”) in

According to the North Carolina Department of Adult Corrections website, Plaintiff was
convicted of second-degree rape on July 16, 2004, and was released from physical
custody on January 25, 2024.
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Taylorsville, North Carolina. [Doc. 1 at 1-3].
Plaintiff alleged that, on March 24, 2020, the day he arrived at
Alexander, Defendants used excessive force against him in the shower area
and that he was thereafter “hog-tied” for eight hours. [Id. at 5-6]. Plaintiff
alleged that the Defendants’ use of excessive force was racially motivated.
[Id. at 6]. Plaintiff’s Eighth Amendment excessive force and state law assault
and battery claims survived initial review. [Doc. 10].
After some difficulties with service on the various Defendants, the
Moving Defendants were served and subsequently answered Plaintiff’s
Complaint. The U.S. Marshal obtained service on Defendant Snuffer on
March 31, 2023.

[Doc. 24 at 3-4].

Defendant Snuffer did not answer

Plaintiff’s Complaint, and, on June 28, 2023, the Court granted Plaintiff’s
motion for entry of default against Defendant Snuffer. The Clerk entered
default against him the same day.2 [Docs. 41, 44, 45]. Defendant Snuffer
has not moved to set aside the entry of default or otherwise appeared in this
matter.
On September 18, 2023, the Court entered its Pretrial Order and Case
Management Plan, setting the discovery deadline as January 16, 2024, and

Plaintiff also moved for default judgment at this time, which the Court denied as
premature. [Docs. 42, 44].
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the dispositive motions deadline as February 12, 2024. [Doc. 49]. On
December 28, 2023, the Moving Defendants moved for an extension of the
discovery deadline because Plaintiff was scheduled to be released from
custody in January 2024 and Defendants wished to depose him after his
release to mitigate deposition costs. [Doc. 53]. The Court granted the
Moving Defendants’ motion and extended the discovery deadline to March
15, 2024. [12/29/2024 Text Order].
On March 4, 2024, Plaintiff notified the Court of his new address in
Augusta, Georgia. [Doc. 54]. The same day, the Moving Defendants moved
for a second extension of the discovery deadline. [Doc. 55]. As grounds,
Defendants stated that they had previously served written discovery and a
notice of deposition on Plaintiff at his address of record noticing his
deposition for March 6, 2024, in Statesville, North Carolina, and that the
written discovery and notice of deposition were returned to defense counsel
undelivered on or about February 22, 2024. [Id. at 1]. Thereafter, the Moving
Defendants learned that Plaintiff had registered as a sex offender in the State
of Georgia and that Plaintiff’s post-release monitoring had been transferred
there. [Id.]. Because Plaintiff failed to timely notify the Court (or Defendants)
of his new address and because Plaintiff never responded to or otherwise
communicated with defense counsel regarding his deposition or otherwise,
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Defendants were forced to cancel Plaintiff’s scheduled deposition. [Id. at 2].
The Moving Defendants, therefore, needed an extension of the discovery
deadline to serve the returned discovery on Plaintiff and to reschedule his
deposition. [Id.]. The Court granted the Moving Defendants’ motion and
extended the discovery deadline to May 17, 2024. [3/5/2024 Text Order].
Defendants immediately served the written discovery on Plaintiff at his
new Georgia address and his response was due by April 8, 2024. [Doc. 56
at 2]. Plaintiff failed to respond. [Id.]. On April 16, 2024, Defendants sent
Plaintiff a letter regarding the missing discovery responses, requesting
Plaintiff’s responses by April 29, 2024, and Plaintiff’s availability for his
deposition during the first two weeks of May. [Doc. 56-3].
On May 2, 2024, the Moving Defendants filed the pending motion.
[Doc. 56]. As of the date of the motion, Plaintiff had not responded to
Defendants’ letter or their written discovery, and he had made no other
contact with defense counsel.

[Id.].

Defendants were attempting to

unilaterally schedule Plaintiff’s deposition at the time of the motion with no
expectation that he would comply with a notice of deposition. [Id. at 3].
Defendants also provide that their written discovery included twenty-six (26)
requests for admission. [Id.]. For relief, Defendants ask the Court to dismiss
Plaintiff’s Complaint as a sanction for his failure to participate in discovery
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or, alternatively, to order Plaintiff to respond to Defendants’ discovery
requests and that Defendants’ 26 requests for admissions be deemed
admitted. [Id.]. Plaintiff did not file a response to Defendants’ motion and
the deadline to do so has expired. On May 13, 2024, however, Plaintiff
improperly filed his belated responses to Defendants’ discovery requests,
which he apparently also served on Defendants.3 [Doc. 57; see id. at 10].
On May 16, 2024, the Court granted Defendants’ third motion to extend the
discovery deadline, which is now June 17, 2024. [5/16/2024 Text Order].
II.

DISCUSSION
Federal Rule of Civil Procedure 37(b)(2) provides that “[i]f a party …

fails to obey an order to provide or permit discovery … the court in which the
action is pending may issue further just orders,” which may include:
(i)
Directing that the matters embraced in the
order or other designated facts be taken as
established for purposes of this action, as the
prevailing party claims;
(ii) prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated matters in
evidence;
(iii)

striking pleadings in whole or in part;

The Court will strike this improper filing. As Plaintiff was advised in the Order of
Instructions in this matter, discovery requests or responses “shall not” be filed with the
Court. [Doc. 5 at ¶ 7 (citing LCvR 26.2)].
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(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or
in part;
(vi) rendering a default judgment against the
disobedient party; or
(vii) treating as contempt of court the failure to obey
any order except an order to submit to a physical or
mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(iv). Under subsection (d) of this Rule, the Court
may order sanctions where a party fails to appear for their deposition after
proper notice or fails to respond to another’s party interrogatories. Fed. R.
Civ. P. 37(d)(1)(A). These sanctions may include those listed above. Fed.
R. Civ. P. 37(d)(3). “Instead of or in addition to these sanctions, the court
must require the party failing to act … to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses
unjust.”

Id.

Moreover, Federal Rule of Civil Procedure 41(b) allows a

defendant to move for dismissal of action “[i]f the plaintiff fails to prosecute
or to comply with these rules or a court order.” Fed. R. Civil P. 41(b).
Here, the Moving Defendants ask the Court to dismiss Plaintiff’s
Complaint with prejudice for Plaintiff’s failure to respond to Defendants’
discovery requests and general “disregard for this case and indifference to
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the rules and orders of this court.” [Docs. 56, 56-1 at 3-4]. Alternatively, the
Moving Defendants ask the Court to compel Plaintiff to respond to
Defendants’ discovery requests and for an Order declaring that Defendants’
requests for admission have been deemed admitted for Plaintiff’s failure to
timely respond. [Id., Doc. 56-1 at 6-9].
The Court is certainly troubled by Plaintiff’s failure to timely respond to
Defendants’ discovery requests and general disregard for the Orders of this
Court and rules of procedure. Given Plaintiff’s pro se status and his recent
release from a 20-year term of incarceration, however, the Court will deem
Plaintiff’s recent discovery responses timely and deny the pending motion
for sanctions without prejudice. While Plaintiff’s failure to appear for his
deposition was caused by his own failure to timely notify the Court and the
Defendants of his new address, it does not appear that he ever received the
deposition notice. To the extent is has not yet been conducted, the Court
will order Plaintiff to attend his deposition in Iredell County, North Carolina,
as noticed by Defendants on a day and time convenient to Defendants within
30 days of this Order.
Should Plaintiff fail to comply with this Order, Defendants may renew
their motion for sanctions as allowed by law. The Court will order the parties
to complete discovery within 30 days of this Order and file dispositive
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motions within 60 days of this Order.
III.

CONCLUSION
In sum, the Court will deny Defendants’ motion for sanctions, to

compel, and to deem requests for admissions admitted as partially moot and
otherwise without prejudice.
Plaintiff is specifically admonished that his failure appear for his
deposition or to otherwise comply with this Court’s Orders, the Local Rules,
or Rules of Civil Procedure may result in the imposition of sanctions.
Sanctions can include Plaintiff being required to pay Defendants’
costs, including reasonable attorney’s fees, and may also include
dismissal of this lawsuit with prejudice.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion [Doc. 56] is
DENIED in accordance with the terms of this Order.
IT IS FURTHER ORDERED that Plaintiff’s Discovery Responses [Doc.
57] are hereby STRICKEN from the record in this matter.
IT IS FURTHER ORDERED that the parties shall COMPLETE
discovery within 30 days of this Order and shall FILE dispositive motions
within 60 days of this Order.

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IT IS SO ORDERED.

Signed: June 3, 2024

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