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

Filing 138

ORDER granting 137 Defendant Marshall L. Rea, D.O.'s Motion for Sanctions. Plaintiffs' action against Defendant Marshall L. Rea D.O. is dismissed without prejudice. Signed by Honorable Timothy D. DeGiusti on 12/17/2018. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT ALLEN AUTRY, an
Incapacitated Person individually, and
SANDRA VALENTINE, Individually
and 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 Marshall L. Rea, D.O.’s Motion for Sanctions [Doc.
No. 137], filed pursuant to Fed. R. Civ. P. 37(b). The Motion seeks an order imposing an
appropriate sanction against Plaintiffs for willfully failing to comply with the Order of
October 1, 2018, which required them to provide answers to interrogatories and responses
to requests for production of documents within 14 days. Plaintiffs have 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 Marshall L. Rea, D.O. 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, Plaintiffs’ discovery conduct warrants dismissal of their
action against Defendant Marshall L. Rea, D.O. Willful conduct has plainly occurred.
Plaintiffs have failed to provide any meaningful discovery, failed to comply with multiple
discovery orders, and failed to respond to this Motion and other motions filed by Dr. Rea
and other defendants.

The Motion expressly requests a “default judgment rendered

against Plaintiffs” (Motion at 1, 3), which the Court understands as a request for dismissal
of the action, and so placed Plaintiffs on notice that dismissal was possible. This same
sanction was previously imposed on behalf of other defendants toward whom Plaintiffs
engaged in similar conduct. See Orders Imposing Discovery Sanction [Doc. Nos. 130
& 135]. Other sanctions previously imposed, including orders for Plaintiff to pay awards
of attorney fees to Defendants [Doc. Nos. 128, 131 & 136], have been ineffective to obtain
compliance.
In view of Plaintiffs’ failure to participate in discovery, Plaintiffs have given the
Court little choice but to order the dismissal of their action against Dr. Rea.

Dr. Rea

cannot be expected to defend against Plaintiffs’ claims without obtaining the information
sought in discovery. However, the action remains pending against another defendant and
2

is proceeding under the Scheduling Order entered April 5, 2018.1 Thus, the Court finds
that the dismissal should be without prejudice to a future motion to reinstate Plaintiffs’
claims against Dr. Rea, provided any such motion is filed in a timely manner and is
supported by facts that establish a compelling reason why Plaintiffs’ willful misconduct
should be excused, to include the full satisfaction of all past-due discovery responses and
the order for payment of costs.
IT IS THEREFORE ORDERED that Defendant Marshall L. Rea, D.O.’s Motion
for Sanctions [Doc. No. 137] is GRANTED, as set forth herein. Plaintiffs’ action against
Defendant Marshall L. Rea, D.O. is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 17th day of December 2018.

1

The Court notes some uncertainty about the status of Plaintiffs’ claim against the
remaining defendant, Turn Key Health Clinics, LLC d/b/a ESW Correctional Healthcare. By
separate order, Plaintiffs will be directed to show cause why this defendant should not be dismissed
as well.
3