Autry et al v. Cleveland County Sheriff's Department et al

Filing 130

ORDER granting 125 Motion for Sanctions. Plaintiff's action against Defendants Cindy Bilyeu, Raven Funez, and Delores Brown is dismissed without prejudice. Signed by Honorable Timothy D. DeGiusti on 9/13/2018. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT ALLEN AUTRY, an
Incapacitated Person individually, and
SANDRA VALENTINE, as Guardian of
Robert Allen Autry,
Plaintiffs,
vs.
CLEVELAND COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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Case No. CIV-15-1167-D

ORDER IMPOSING DISCOVERY SANCTION
Before the Court is Defendants Cindy Bilyeu, Raven Funez, and Delores Brown’s
Motion for Sanctions [Doc. No. 125], filed pursuant to Fed. R. Civ. P. 37(b). The Motion
seeks an order imposing an appropriate sanction against Plaintiff Sandra Valentine for
willfully failing to comply with the Order of August 1, 2018, to provide full and complete
answers to interrogatories and responses to requests for production of documents served in
April 2018. Plaintiff has not filed a timely response to the Motion. Upon consideration,
in the exercise of discretion under LCvR7.1(g), the Court finds that the Motion should be
deemed confessed, and should be granted for the reasons stated in the Motion. The only
question for decision by the Court is what sanction to impose.
Under the circumstances shown by the Motion and the case record, the Court finds
that Plaintiff’s action against Defendants Cindy Bilyeu, Raven Funez, and Delores Brown
should be dismissed.

Dismissal is “an extreme sanction appropriate only in cases of

willful misconduct” and requires a consideration of appropriate factors. See Ehrenhaus
v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). The Ehrenhaus factors “do not represent
a rigid test that a district court must always apply . . . [but] are simply a non-exclusive list
of sometimes-helpful criteria or guide posts the district court may wish to consider in the
exercise of what must always remain a discretionary function.” Lee v. Max Int’l, LLC,
638 F.3d 1318, 1323 (10th Cir. 2011) (internal quotation omitted).

In the Court’s

assessment, Plaintiff’s discovery conduct toward Defendants Cindy Bilyeu, Raven Funez,
and Delores Brown warrants dismissal of her claims against them.
There is no question that willful conduct has occurred.

Plaintiff has failed to

provide any meaningful discovery, failed to comply with the resulting discovery order, and
failed to respond to this Motion and others filed by these and other defendants.

The

Motion expressly requests a “default judgment rendered against Plaintiff” (Motion at 1, 4),
which the Court understands as a request for dismissal of Plaintiff’s action, and so placed
Plaintiff on notice that dismissal was possible. Other sanctions, including an order for
Plaintiff to pay awards of attorney fees to these and other defendants, have been ineffective
to obtain compliance. Defendants cannot be expected to defend against Plaintiff’s claims
without obtaining the information sought in discovery.
In view of Plaintiff’s failure to participate in discovery in this case, Plaintiff has
given the Court little choice but to order the dismissal of her action against Defendants
Cindy Bilyeu, Raven Funez, and Delores Brown.

However, similar claims remain

pending against other defendants and the case is currently proceeding under the Scheduling
Order entered April 5, 2018. The deadlines for Plaintiff to disclose her expert witnesses
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and other anticipated evidence are months away. Thus, the Court finds that the dismissal
should be without prejudice to a future motion to reinstate Plaintiff’s claims against
Defendants Cindy Bilyeu, Raven Funez, and Delores Brown, provided any such motion is
filed in a timely manner and is supported by facts that establish a compelling reason why
Plaintiff’s willful misconduct should be excused, to include full satisfaction of all past-due
discovery responses.
IT IS THEREFORE ORDERED that Defendants Cindy Bilyeu, Raven Funez, and
Delores Brown’s Motion for Sanctions [Doc. No. 125] is GRANTED, as set forth herein.
Plaintiff’s action against Defendants Cindy Bilyeu, Raven Funez, and Delores Brown is
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 13th day of September, 2018.

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