Freeman et al v. Troutt et al
Filing
124
REPORT AND RECOMMENDATION: Magistrate Judge Knowles recommends that Defendants' Troutt and Weatherford's Motion to Dismiss 112 be GRANTED, and that Plaintiffs Robert Freeman, Johnny Davis, and Billy Dishman be terminated as parties to this action. Signed by Magistrate Judge E. Clifton Knowles on 3/13/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT FREEMAN, JOHNNY DAVIS,
BILLY DISHMAN, AND LABRON LUKE,
)
)
)
Plaintiffs,
)
)
v.
)
)
SONYA TROUTT, SONNY WEATHERFORD, )
)
AND SOUTHERN HEALTHCARE,1
)
Defendants.
)
Case No. 3:12-cv-0266
Judge Sharp / Knowles
REPORT AND RECOMMENDATION
This matter is before the Court upon a Motion to Dismiss for Failure to Serve Answers to
Discovery filed by Defendants Sonya Troutt and Sonny Weatherford (“Defendants”). Docket
No. 112. Defendants have contemporaneously filed a supporting Memorandum of Law. Docket
No. 113. Defendants seek dismissal of the claims of Plaintiffs Robert Freeman, Johnny Davis,
and Billy Dishman (“Plaintiffs”), pursuant to Fed. R. Civ. P. 37(d) and 41(b), because Plaintiffs
have failed to answer the First Set of Interrogatories, Request for Production of Documents, and
Request for Admissions (“Discovery Requests”) propounded to them by Defendants; because
Plaintiffs have violated this Court’s Scheduling Order; and because Plaintiffs have failed to
prosecute their claims.2 Id.
1
Plaintiffs’ Complaint incorrectly names “Southern Healthcare” as a Defendant.
“Southern Healthcare” actually refers to Southern Health Partners.
2
LaBron Luke was the only Plaintiff to respond to Defendants’ Discovery Requests. Id.
Defendants filed a Motion for Summary Judgment with regard to the claims made by Mr. Luke
(Docket No. 115), which the undersigned recommended be granted (Docket No. 119).
Plaintiffs Robert Freeman, Johnny Davis, and Billy Dishman have not responded to the
instant Motion.
Plaintiffs filed this pro se, in forma pauperis action pursuant to 42 U.S.C. §1983,
generally alleging that Defendants violated their Eighth Amendment rights by being deliberately
indifferent to their serious medical needs because medical care conditions at the Sumner County
Jail (“Jail”) present a serious health risk to themselves and to the Jail inmates at large. Docket
No. 1. Plaintiffs sued Jail Administrator Sonya Troutt and Sheriff Sonny Weatherford solely in
their official capacities, and have also sued Southern Health Partners.3 Id. Plaintiffs seek
compensatory and punitive damages. Id.
For the reasons discussed below, the undersigned recommends that Defendants’ Troutt
and Weatherford’s Motion to Dismiss be GRANTED, and that Plaintiffs Robert Freeman,
Johnny Davis, and Billy Dishman be terminated as parties to this action.
II. Analysis
A. Fed. R. Civ. P. 37(d)
Federal Rule of Civil Procedure 37 relates to a party’s failure to make disclosures or to
cooperate in discovery. Federal Rule of Civil Procedure 37(d), in particular, provides:
(d) Party's Failure to Attend Its Own Deposition, Serve
Answers to Interrogatories, or Respond to a Request for
Inspection.
3
Plaintiff originally additionally sued Chassity Pilcher and Mahailiah Hughes. Docket
No. 1. Plaintiff’s claims against Defendants Pilcher and Hughes were dismissed by Judge Sharp
in an Order entered on June 20, 2012, and Defendants Pilcher and Hughes were terminated as
parties in this action. See Docket No. 31. With regard to Plaintiffs’ claims against Southern
Health Partners, the undersigned has submitted a Report and Recommendation recommending
that Southern Health Partners be granted summary judgment and accordingly, that Plaintiffs’
claims against it be dismissed. Docket No. 120.
2
(1) In General.
(A) Motion; Grounds for Sanctions. The court
where the action is pending may, on motion, order
sanctions if:
(i) a party or a party's officer, director, or
managing agent--or a person designated
under Rule 30(b)(6) or 31(a)(4)--fails, after
being served with proper notice, to appear
for that person's deposition; or
(ii) a party, after being properly served with
interrogatories under Rule 33 or a request
for inspection under Rule 34, fails to serve
its answers, objections, or written response.
(B) Certification. A motion for sanctions for failing
to answer or respond must include a certification
that the movant has in good faith conferred or
attempted to confer with the party failing to act in
an effort to obtain the answer or response without
court action.
(2) Unacceptable Excuse for Failing to Act. A failure
described in Rule 37(d)(1)(A) is not excused on the ground
that the discovery sought was objectionable, unless the
party failing to act has a pending motion for a protective
order under Rule 26(c).
(3) Types of Sanctions. Sanctions may include any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in
addition to these sanctions, the court must require the party
failing to act, the attorney advising that party, or both to
pay the reasonable expenses, including attorney's fees,
caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.
B. Fed. R. Civ. P. 41(b)
3
Fed. R. Civ. P. 41(b) governs the involuntary dismissal of an action, and states in relevant
part as follows:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under this
subdivision (b) . . . operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b).
C. The Case at Bar
Plaintiffs filed their Complaint in this action on March 14, 2012. Docket No. 1. On May
16, 2013, the Court entered a Scheduling Order in this action. Docket No. 73. That Scheduling
Order set a discovery deadline of November 20, 2013. Id.
On September 5, 2013, Defendants sent each Plaintiff discovery requests consisting of a
First Set of Interrogatories, Request for Production of Documents, and Request for Admissions.
Collective Ex. 1 to Docket No. 112. Defendants informed each Plaintiff that they had 30 days to
answer the Discovery Requests. Id. Plaintiffs Robert Freeman, Johnny Davis, and Billy
Dishman did not answer the Discovery Requests, either within the 30 day period, prior to the
expiration of the Court’s November 20, 2013 discovery deadline, or the date of the filing of the
instant Motion.
Because Plaintiffs Robert Freeman, Johnny Davis, and Billy Dishman did not answer the
Discovery Requests, either within the 30 day period, prior to the expiration of the Court’s
November 20, 2013 discovery deadline, or the date of the filing of the instant Motion,
Defendants seek the dismissal, with prejudice, of their claims. Docket Nos. 112, 113.
Defendants also seek dismissal because Plaintiffs have violated this Court’s Scheduling Order
4
and further seek dismissal for failure to prosecute. Id. Defendants argue:
Since filing their Complaint on March 14, 2012, Plaintiffs
Freeman, Davis and Dishman have taken no action to prosecute
their claims against Defendants Weatherford and Troutt. They
have not sent any discovery and have not requested to take any
depositions. They have not answered the Discovery Requests.
Further, they have violated this Court’s easily understood
discovery deadline of November 20, 2013. Plaintiffs Freeman,
Davis and Dishman’s actions are the very definition of
“willfulness, bad faith, or fault.”
Docket No. 113, p. 3.
A review of the record in this case reveals that Plaintiffs have failed to comply with this
Court’s Scheduling Order, and have failed to prosecute their claims. Moreover, Defendants
cannot defend themselves against Plaintiffs’ claims absent discovery. Accordingly, the
undersigned recommends that the instant Motion be GRANTED.
III. Conclusion
For the foregoing reasons, the undersigned recommends that Defendants’ Troutt and
Weatherford’s Motion to Dismiss be GRANTED, and that Plaintiffs Robert Freeman, Johnny
Davis, and Billy Dishman be terminated as parties to this action.4
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
4
As has been noted, the undersigned has submitted two previous Reports and
Recommendations in this action: the first, recommending that Defendants’ be granted summary
judgment against the claims of Plaintiff Luke (Docket No. 119); and the second, recommending
that Plaintiffs’ claims against Defendant SHP be dismissed, and that SHP be terminated as a
party to this action (Docket No. 120). If the undersigned’s two previous Reports and
Recommendations and the instant Report and Recommendation are all adopted, then all claims
in this action will be dismissed.
5
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?