Rice v. Houdyshell et al
Filing
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OPINION AND ORDER by Judge Frank H. Seay : This action is DISMISSED WITHOUT PREJUDICE for Plaintiffs failure to prosecute. All pending motions are DENIED as moot. 101 103 107 111 (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STANLEY W. RICE,
Plaintiff,
v.
THOMAS HOUDYSHELL, et al.,
Defendants.
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No. CIV 13-095-FHS-SPS
OPINION AND ORDER
Plaintiff, a former inmate at Jess Dunn Correctional Center in Taft, Oklahoma,
brought this action under the authority of 42 U.S.C. § 1983, seeking monetary damages for
alleged constitutional violations during his incarceration at the Wagoner County Jail in
Wagoner, Oklahoma. At the direction of the court, he filed a second amended complaint on
February 3, 2014 (Dkt. 50, 51). The defendants in the second amended complaint are
officials at the Wagoner County Jail: Thomas Houdyshell, Administrator; Link Mock,
Detention Officer; Billy Hagan, Detention Officer; Debbie Wheeler; and Jennifer Perry, Jail
Health Care Provider.
Plaintiff alleges that while incarcerated in the Wagoner County Jail, the defendants
violated his First and Eighth Amendment rights, as well as the Americans with Disabilities
Act. He claims he suffered cruel and unusual punishment, excessive force, and deliberate
indifference to his serious medical needs, both physical and psychiatric. The defendants also
allegedly opened his mail, photocopied and forwarded copies of his mail, and lost family
photographs they removed from his incoming mail.
Plaintiff was discharged from the Oklahoma Department of Corrections on June 19,
2015 (Dkt. 103-2), and he advised the court of his current address on August 10, 2015 (Dkt.
99). On September 14, 2015, Defendant Houdyshell filed a motion to compel Plaintiff to
fully respond to Houdyshell’s First Set of Request for Production of Documents to Plaintiff
and Houdyshell’s First Set of Interrogatories to Plaintiff (Dkt. 101). Houdyshell alleged that
Plaintiff’s responses were more than two months overdue, and Plaintiff had not responded
to Houdyshell’s correspondence about these discovery requests. Id.
On September 15, 2015, the court directed Plaintiff to show cause by September 29,
2015, why Houdyshell’s motion to compel should not be granted (Dkt. 102). Plaintiff was
advised that failure to show cause as directed could result in dismissal of this action. Id.
On September 16, 2015, the defendants filed a Joint Motion for Sanctions Based on
Plaintiff’s Failure to Appear for His Own Deposition (Dkt. 103). The defendants allege that
on August 26, 2015, defense counsel issued to Plaintiff via certified mail a Notice of
Deposition, mailed to the address Plaintiff provided the court after his DOC release (Dkt.
103-3 at 1). The Notice was delivered to Plaintiff on September 1, 2015, and the deposition
was scheduled for September 15, 2015, in Muskogee, Oklahoma. Id. On the day of the
deposition, two attorneys for the defendants and a court reporter arrived at the scheduled site,
but Plaintiff did not appear. Id. A record was made before the court reporter concerning the
Plaintiff’s failure to appear. Id.
Counsel for the defendants states that he received no communication from Plaintiff
about the deposition, but counsel understands that Plaintiff was aware it was scheduled. Id.
(Dkt. 103-3 at 2). On September 10, 2015, counsel spoke with Plaintiff’s sister Angela
Painter who advised that Plaintiff had informed her of the September 15 deposition in
Muskogee. Id.
On September 16, 2015, the court directed Plaintiff to show cause by September 30,
2015, why the defendants’ Joint Motion for Sanctions Based on Plaintiff’s Failure to Appear
for His Own Deposition (Dkt. 103) should not be granted (Dkt. 104). Plaintiff was cautioned
that failure to show cause as directed could result in dismissal of this action and other
sanctions. Id.
On September 17, 2015, the defendants filed a Supplemental Joint Motion for
Sanctions Based on Plaintiff’s Failure to Appear for His Own Deposition (Dkt. 107),
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correcting the exhibits filed in their previous joint motion for sanctions (Dkt. 103).
On October 29, 2015, the court again directed Plaintiff to show cause why the
defendants’ joint motions for sanctions (Dkt. 103, Dkt. 107) should not be granted. (Dkt.
110). Plaintiff was advised that failure to show cause as directed would result in dismissal
of this actions with possible additional sanctions. Id. Plaintiff has failed to respond to any
of the court’s show-cause orders or to any of the defendants’ motions.
Finally, the defendants filed a Joint Motion to Deem Confessed Defendants’ Joint
Motion for Sanctions (Dkt. 111). The defendants are requesting sanctions against Plaintiff,
including dismissal of this action with prejudice and an award to the defendants of reasonable
attorney fees and costs incurred in attending the September 15, 2015, deposition and making
a record upon Plaintiff’s failure to attend, and in preparing their Joint Motion for Sanctions.
After careful review, the court finds the proper sanction for Plaintiff’s failure to
cooperate in discovery and to attend his own deposition is dismissal of this action without
prejudice for Plaintiff’s failure to prosecute, pursuant to Fed. R. Civ. P. 41(b). See United
States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 854-56 (10th Cir. 2005) (dismissing
appeal sua sponte for failure to prosecute because appellant disappeared and failed to meet
court deadlines). The court further finds that additional sanctions, such as an award of
attorney fees and costs, are not warranted.
ACCORDINGLY, this action is DISMISSED WITHOUT PREJUDICE for
Plaintiff’s failure to prosecute. All pending motions are DENIED as moot.
ENTERED this 29th day of March, 2016.
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