James v. Berryhill
Filing
74
OPINION AND ORDER adopting 65 Report and Recommendation, granting in part and denying in part 57 Motion for Sanctions, denying 55 Motion for Judgment on the Pleadings, finding as moot 59 Motion for Summary Judgment, dismissing this matter with prejudice. Signed by Honorable Cameron McGowan Currie on 8/9/2019. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Vernice L. James,
v.
C/A. No. 3:18-cv-535-CMC
Plaintiff,
Andrew Saul, Commissioner
Security Administration,
of
Social
Opinion and Order
Defendant.
Through this action, Plaintiff Vernice L. James (“Plaintiff”) seeks recovery from her
employer, Andrew Saul, Commissioner of Social Security Administration (“SSA”), for alleged
employment discrimination based on her race and age. ECF. No. 1. The matter is before the court
on Defendant’s Motion for Discovery Sanctions, filed April 30, 2019. ECF No. 57. Plaintiff did
not file a response to this motion. 1
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), D.S.C., this
matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (“Report”). On August 2, 2019, the Magistrate Judge issued
a Report recommending that Defendant’s motion for sanctions be granted, and the case be
dismissed with prejudice. ECF No. 65. It also recommends denying Plaintiff’s motion for
judgment on the pleadings and Defendant’s motion for summary judgment. Id. at 6. The
Magistrate Judge advised the parties of the procedures and requirements for filing objections to
the Report and the serious consequences if they failed to do so. Plaintiff filed two documents
1
Also pending before the court are Plaintiff’s Motion for Judgment on the Pleadings (ECF No.
55) and Defendant’s Motion for Summary Judgment (ECF No. 59).
containing objections (ECF Nos. 68, 70), and Defendant filed a reply on August 6, 2019 (ECF No.
71). This matter is now ripe for resolution.
I.
Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
II.
Discussion
The Report recommends dismissal with prejudice as a discovery sanction pursuant to a
four-prong test set forth by the Fourth Circuit. ECF No. 65 at 4. It finds no other type of sanction
appropriate, and that Plaintiff was warned her failure to cooperate in discovery would result in a
recommendation of dismissal. Id. at 5.
2
Plaintiff objects, noting the first deposition was scheduled for February 8, 2019, but she
did not receive the notice until February 13. ECF No. 70 at 1. 2 Plaintiff argues Defendant has
“constantly pressured Plaintiff to accomplish said requests [for production] with no regard to
Plaintiff’s pro se status which, at best, would require Plaintiff to expend an extended amount of
time and effort to adequately mount an earnest effort to answer Defendant’s requests.” Id. at 1-2.
She complains she did not have any supporting documents to use as a guide to respond to discovery
requests, and as a full-time employee with SSA did not have time to complete the requests. She
noted “I was expected to respond to a case that initiated on or about 2013.” Id. at 2. She requests
her Motion for Judgment on the Pleadings “be acted upon as submitted.” Id. at 3.
Defendant replied to Plaintiff’s objections, noting the objections were late and therefore
should not be considered. 3 ECF No. 71. Defendant also argues the objections lack merit, as they
relate to an EEOC case and not the case before this court. Id. at 3. The reply notes “[i]t is Plaintiff’s
responsibility to prosecute this case. Defendant has attempted to engage in discovery with Plaintiff
to no avail.” Id.
The court agrees Plaintiff has failed to participate in discovery and to follow an Order of
the court (ECF No. 44) to respond to written discovery and to attend her deposition. Plaintiff was
warned continued failure would subject her case to dismissal, yet has not responded to written
discovery, and there is no evidence of an attempt to confer with Defendant regarding a potential
extension for discovery requests or available date for her deposition. Plaintiff notes she is pro se,
2
Plaintiff’s two documents of objections are essentially identical, except a paragraph regarding
attending a deposition was taken out. This deposition was in an EEOC case, and Plaintiff
apparently realized it had no bearing on the case before this court.
3
Despite Plaintiff’s objections being filed slightly after the deadline, the court will consider them.
3
and therefore does not have time or knowledge required to respond to the discovery requests. The
court agrees pro se litigants may be granted some flexibility in strictly following the Rules of Civil
Procedure or other court rules. However, they may not simply fail to engage in discovery with the
opposing party. Plaintiff chose to bring this case, and therefore must participate in the litigation
process, including discovery. This she has failed to do, despite numerous attempts by Defendant
and warnings from this court.
The court further agrees with the Report’s analysis of the four-factor test for dismissal
pursuant to Fed. R. Civ. P. 41(b). See Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th
Cir. 1982) (To determine whether dismissal under Rule 41(b) is appropriate, the court considers
“(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the
defendant, (3) the existence of a drawn out history of deliberately proceeding in a dilatory fashion,
and (4) the existence of a sanction less drastic than dismissal.”). Plaintiff has a responsibility to
participate in discovery, yet has failed to do so despite Defendant’s myriad attempts to serve her
at different addresses and contact her about written discovery. Defendant is prejudiced by this
failure, as it cannot defend its case without discovery from Plaintiff. Although she complains she
has a full-time job and does not have the time to devote to a case “that initiated on or about 2013,”
Plaintiff brought this case and must participate. The court agrees with the Report a less-drastic
sanction is not appropriate. Plaintiff is proceeding in forma pauperis, so monetary sanctions are
inappropriate, and she was specifically warned of the consequences of her continued failure to
participate in discovery.
III.
Conclusion
After conducting a de novo review of the record, the applicable law, the Report and
Recommendation of the Magistrate Judge, Plaintiff’s objections, and Defendant’s reply, the court
4
agrees with the Report’s recommendation the case be dismissed with prejudice as a discovery
sanction. Accordingly, the court adopts the Report by reference in this Order. For the reasons
stated herein and in the Report, this matter is dismissed with prejudice. Defendant’s motion for
award of fees and costs is denied due to Plaintiff’s in forma pauperis status. Plaintiff’s Motion for
Judgment on the Pleadings is denied, 4 and Defendant’s motion for summary judgment is moot.
IT IS SO ORDERED.
Columbia, South Carolina
August 9, 2019
4
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
This one sentence motion reads, in its entirety, “Plaintiff hereby moves for Motion for an On the
Record Decision based on the evidence in the file.” ECF No. 54. There were no attached
documents or other information or evidence regarding the case.
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