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

Filing 135

ORDER granting 133 Defendant Deanna Wheeler's Motion for Sanctions. Deanna Wheeler is Dismissed without prejudice. Signed by Honorable Timothy D. DeGiusti on 10/31/2018. (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 Defendant Deanna Wheeler’s Motion for Sanctions [Doc.
No. 133], 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 17, 2018, to provide full and complete answers to interrogatories and
responses to requests for production of documents served in February 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 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 Defendant Deanna Wheeler should be dismissed.

Dismissal

is “an extreme sanction appropriate only in cases of willful misconduct” and requires a

consideration of appropriate factors.
Cir. 1992).

See Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th

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 warrants dismissal of her
action against Defendant Deanna Wheeler.

Willful conduct has plainly 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 other motions filed by Defendant
Wheeler and others.

The Motion expressly requests a “default judgment rendered against

Plaintiff” (Motion at 1, 3), which the Court understands as a request for dismissal of
Plaintiff’s action, and so placed Plaintiff on notice that dismissal was possible.

This same

sanction was previously imposed on behalf of other defendants toward whom Plaintiff
engaged in similar conduct.

See Other Imposing Discovery Sanction [Doc. No. 130].

Other sanctions previously imposed, including multiple orders for Plaintiff to pay awards
of attorney fees to Defendants, have been ineffective to obtain compliance.
In view of Plaintiff’s failure to participate in discovery, Plaintiff has given the Court
little choice but to order the dismissal of her action against Defendant Deanna Wheeler.
Defendant Wheeler cannot be expected to defend against Plaintiff’s claims without
obtaining the information sought in discovery.

However, the action remains pending

against other defendants and is proceeding under the Scheduling Order entered April 5,
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2018; Plaintiff’s disclosures of expert witnesses and other evidence are not due until
February 2019. Thus, the Court finds that the dismissal should be without prejudice to a
future motion to reinstate Plaintiff’s claims against Defendant Deanna Wheeler, 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 Defendant Deanna Wheeler’s Motion for
Sanctions [Doc. No. 133] is GRANTED, as set forth herein.

Plaintiffs’ action against

Defendant Deanna Wheeler is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 31st day of October, 2018.

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