Jenkins v. Hardeman County et al
Filing
82
ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE. Signed by Chief Judge J. Daniel Breen on 12/31/2014. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
NELSON JENKINS,
Plaintiff,
v.
No. 13-2054
HARDEMAN COUNTY, TENNESSEE, et al.,
Defendants.
_____________________________________________________________________________
ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE
_____________________________________________________________________________
This lawsuit was brought by the Plaintiff, Nelson Jenkins, who is represented by counsel,
on January 29, 2013 against Hardeman County, Tennessee ("Hardeman County"); the Hardeman
County, Tennessee Sheriff's Department (the "Sheriff's Department"); Sheriff John Doolen; Captain
Leonard Brown; Lieutenant Chris McKinney and John Does One through Five alleging, pursuant
to 42 U.S.C. ยง 1983, violations of his rights under the Eighth and Fourteenth Amendments to the
United States Constitution. He also brought state law claims of negligence, negligent supervision
and training, and violation of the Tennessee Constitution.
In an order entered October 10, 2013, the Court dismissed Plaintiff's claims against the
Sheriff's Department, Hardeman County and the John Doe Defendants; his claims under the
Fourteenth Amendment, the Tennessee Constitution and state law; and his official capacity claims
against Doolen, Brown and McKinney. (D.E. 25.) Jenkins appealed the Court's ruling to the Sixth
Circuit Court of Appeals on November 12, 2013. (D.E. 29.) The appeal was dismissed on
December 27, 2013 on the grounds that this Court's ruling was not a final appealable order.1 (D.E.
35.)
On February 13, 2014, the remaining Defendants, Doolen, Brown and McKinney, moved
to compel discovery from the Plaintiff pursuant to Rule 37 of the Federal Rules of Civil Procedure.
(D.E. 36.) The motion was referred to the United States magistrate judge (D.E. 37), who, on March
24, 2014, directed Plaintiff to provide amended responses to certain requests for admission, as well
as outstanding interrogatories and requests for production. (D.E. 43.) At the time of entry, the
magistrate judge reserved ruling on the issue of sanctions requested by the Defendants. (Id.) Three
days before issuance of the Court's order, Plaintiff filed amended responses to the requests for
admission that were the subject of the first motion to compel. (D.E. 42.)
Defendants' second and third motions to compel discovery were filed May 20 and September
26, 2014, respectively (D.E. 46, 57), both of which were referred to the magistrate judge (D.E. 47,
60.) On October 9, 2014, the Defendants moved for sanctions. (D.E. 62.) This motion was also
referred to the magistrate judge. (D.E. 64.) A hearing was set on the referred motions for October
22, 2014. (D.E. 65.) During the mid-afternoon of October 21, 2014, Plaintiff's counsel, Keisha
Richardson, telephoned the magistrate judge's chambers advising that her double-amputee
grandmother had just been released from the hospital and that she had to care for her. Although the
hearing was cancelled, a telephone conference was conducted on October 22, at which Richardson
appeared. During that conference, the magistrate judge was apprised that Defendants had noticed
Jenkins for a deposition and that he failed to appear.
1
On March 17, 2014, Jenkins moved for certification pursuant to Fed. R. Civ. P. 54(b)
and for an order staying this matter pending a ruling by the Sixth Circuit. (D.E. 41.) The motion
was denied on July 18, 2014. (D.E. 54.)
2
On November 5, 2014, the Defendants moved for summary judgment on Jenkins' remaining
claims pursuant to Fed. R. Civ. P. 56. (D.E. 71.) In an order entered November 18, 2014, United
States Magistrate Judge Edward G. Bryant ruled on the motions to compel, concluding that
Plaintiff's discovery responses had been inadequate and evasive, and directed him to submit
amended and supplemental responses within five days of the entry of the order. (D.E. 73.) Jenkins
was admonished that his continued failure to cooperate in discovery could result in dismissal of his
lawsuit. (Id.) Judge Bryant also requested of the Defendants an affidavit of attorney's fees and
expenses. (Id.)
With respect to the deposition, Defendants' attorney noticed Jenkins thereof on September
24, 2014. The deposition was scheduled for Monday, October 6, 2014, the last day of discovery.
Counsel prepared for the deposition over the preceding weekend and on Monday morning and had
a court reporter present and ready to conduct the deposition. He advised the Court that Richardson
did not notify him of Jenkins' intention not to appear until 9:41 a.m. that morning. In a Court filing
on the same date, Richardson acknowledged receipt of the deposition notice but stated that her
client's status as a double amputee made travel arrangements difficult. Judge Bryant found that she
had sufficient time in which to make such arrangements and imposed sanctions in the form of
reasonable expenses, including attorney's fees and court reporter expenses, caused by Jenkins' failure
to attend his deposition.
On November 26, 2014, the Defendants moved for dismissal of Plaintiff's claims for failure
to comply with Court orders and for sanctions. (D.E. 74.) Jenkins did not respond to the motion.
Nor has he filed a response to the pending motion for summary judgment. In an order entered
December 11, 2014, this Court directed him to show cause why this matter should not be dismissed
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for failure to prosecute. (D.E. 77.) In a response filed December 22, 2014, Richardson shed little
if any light on her client's failure to move this case forward, requesting instead a status hearing with
the undersigned to discuss procedural issues and the "progression" of discovery. (D.E. 78.) The
following day, the Defendants responded to the filing. (D.E. 79.)
Rule 41 of the Federal Rules of Civil Procedure permits a district court to dismiss an action
if a plaintiff fails to prosecute or comply with court orders.2 Fed. R. Civ. P. 41(b). "The rule allows
district courts to manage their dockets and avoid unnecessary burdens on both courts and opposing
parties." Shavers v. Bergh, 516 F. App'x 568, 569 (6th Cir. 2013) (per curiam). The factors relevant
to a determination under Rule 41(b) include "whether the failure to respond to the court's order was
due to willfulness, bad faith, or fault; whether the other party was prejudiced; whether the court
warned that dismissal would result; and whether less drastic sanctions were considered." Atwater
v. Bank of New York Mellon Trust Co., N.A., ___ F. App'x ___, 2014 WL 6919338, at *1 (6th Cir.
Dec. 9, 2014) (per curiam). Dismissal under the Rule is a "harsh sanction which the court should
order only in extreme situations showing a clear record of contumacious conduct by the plaintiff."
Richter v. Am. Aggregates Corp., 522 F. App'x 253, 260 (6th Cir. 2013) (quoting Wu v. T.W. Wang,
Inc., 420 F.3d 641, 643 (6th Cir. 2005)).
As to the first factor, "[w]illfulness, bad faith, or fault is demonstrated when a plaintiff's
conduct evidences either an intent to thwart judicial proceedings or a reckless disregard for the effect
of his conduct on those proceedings." Shavers, 516 F. App'x at 570 (internal quotation marks
omitted). In the Court's view, Plaintiff has exhibited at least a reckless disregard for the effect of
2
Similarly, Fed. R. Civ. P. 37 provides that, in the event a party fails to participate in
discovery, the court may dismiss the action. Fed. R. Civ. P. 37(b) & (d).
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his conduct on the Defendants and this proceeding.
The second factor also weighs on the side of the Defendants. They point out that Plaintiff
has failed to execute the original HIPAA form requested through discovery that would have
permitted their counsel to discuss Jenkins' medical conditions with his providers at Jackson-Madison
County General Hospital and Bolivar General Hospital. Thus, Defendants have been unable to
speak with Plaintiff's treating physicians. With trial set in this matter for January 26, 2015,
Defendants have clearly suffered prejudice as a result. Moreover, "[a] defendant is prejudiced by
the plaintiff's conduct where the defendant wastes time, money and effort in pursuit of cooperation
which the plaintiff was legally obligated to provide." Kovacic v. Tyco Valves & Controls, LP, 433
F. App'x 376, 381 (6th Cir. 2011) (internal quotation marks omitted). As noted above, Defendants
have spent time, money and effort in preparing and appearing for a deposition at which Jenkins
failed to appear and filing numerous motions to compel discovery and for sanctions.
In his November 18, 2014 order, Judge Bryant clearly warned the Plaintiff that his failure
to cooperate in discovery could result in dismissal of his lawsuit. He also imposed lesser sanctions
in the form of attorney's fees and expenses. Nonetheless, Plaintiff has still not responded to the
Defendants' motion for summary judgment. Nor has he addressed their November 26, 2014 motion
to dismiss based on Jenkins' failure to prosecute and comply with orders of the Court. Even in
response to the Court's show cause order, Plaintiff's counsel sought only an opportunity to explain
the progression of the case to the undersigned. Unfortunately, the progression of the case, or lack
thereof, is clearly laid out on the docket. The Court can conceive of nothing that could be said in
a status conference that could not have been relayed to Judge Bryant in response to the motions to
compel filed by the Defendants or by responding to the motion to dismiss. Accordingly, the request
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appears to be nothing more than the latest in a pattern of delay. At this point, it appears to the Court
that "no alternative sanction would protect the integrity of the pretrial process." See id. at 383. As
the factors to be considered by the Court weigh in favor of Defendants, this matter is hereby
DISMISSED.
IT IS SO ORDERED this 31st day of December 2014.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
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