Horace v. The University of Texas Health Science Center Houston

Filing 30

ORDER granting 28 MOTION for Sanctions; Plaintiff's claims are DISMISSED with prejudice. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDDIE L. HORACE, JR.,
Plaintiff,
v.
THE UNIVERSITY OF TEXAS
HEALTH SCIENCE CENTER AT
HOUSTON,
Defendant.

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CIVIL ACTION NO. H-12-01371

ORDER
Pending is Defendant the University of Texas Health Science
Center at Houston’s (“Defendant”) Motion for Sanctions Against
Plaintiff (Document No. 28). Defendant seeks dismissal of the case
as a sanction for Plaintiff’s repeated and intransigent refusals to
comply with his discovery obligations and with this Court’s Orders
compelling

Plaintiff

to

provide

Defendant

with

his

initial

disclosures and to respond to Defendant’s interrogatories and
requests

for

production.1

Pro

se

Plaintiff

Eddie

Horace

(“Plaintiff”) has filed no response to the motion, and it is
therefore deemed unopposed pursuant to Local Rule 7.4.

1

Document No. 28 at 1-2. See also Document No. 23 (Order
granting Defendant’s Motion to Compel Discovery and requiring
Plaintiff to respond to Defendant’s interrogatories and requests
for production within fourteen days); Document No. 27 (Supplemental
Order requiring Plaintiff to provide Defendant with his initial
disclosures within fourteen days).

Rule 37 of the Federal Rules of Civil Procedure allows the
district court to sanction a party for failing to comply with a
discovery order by taking any number of possible actions, including
“dismissing the action or proceeding in whole or in part.”
CIV.

P.

37(b).

The

Fifth

Circuit

looks

to

the

FED . R.

following

considerations when determining if dismissal is an appropriate
sanction: whether failure to comply with the court’s order results
from wilfulness or bad faith, not from an inability to comply;
whether the deterrent value of Rule 37 cannot be achieved by the
use of less drastic sanctions; and whether the other party’s
preparation for trial was substantially prejudiced. Batson v. Neal
Spelce Associates, Inc., 765 F.2d 511, 514 (5th Cir. 1985); Prince
v.

Poulos,

“dismissal

876

F.2d

may

be

30,

32

(5th

Cir.

inappropriate

1989).

when

neglect

Furthermore,
is

plainly

attributable to an attorney rather than a blameless client, or when
a party’s simple negligence is grounded in confusion or sincere
misunderstanding of the court’s orders.”

Batson, 765 F.2d at 514

(citations omitted).
Plaintiff has not responded to this motion, as he did not
respond to Defendant’s previous motions to compel.

He has not

stated that he is unable to comply with this Court’s orders or that
this Court’s orders are confusing, nor has he offered any reason
whatever for his willful failure to comply.

Plaintiff has chosen

to proceed pro se, so there is no negligent attorney acting for him
2

to blame for Plaintiff’s failure to comply with the Court’s orders.
Defendant asserts that it has been prejudiced because it has been
unable adequately to evaluate the merits of Plaintiff’s claims
without his responses to discovery,2 and necessarily had to cancel
Plaintiff’s

deposition

because

Plaintiff’s

written

discovery

responses were not in hand.3
Although Plaintiff is proceeding pro se, he still must comply
with the rules of procedure and court orders.
660

F.2d

592,

representation

593
does

(5th
not

Cir.

exempt

1981)
a

See Birl v. Estelle,

(“The

party

from

right

to

compliance

selfwith

relevant rules of procedural and substantive law.”) (per curiam).
Plaintiff repeatedly has not complied with this Court’s orders, and
without any claimed excuse or justification for such persistent
defiance ever having been offered to the Court.

Plaintiff filed

the case more than one year ago, and due to his failures to respond
to discovery requests, and defiance of Court orders to advance the
case, the case is still not off of the starter block.

Plaintiff

has wholly lacked diligence in prosecuting his case and has shown
repeated contempt for the Court by ignoring its Orders.

Even now

Defendant has filed no opposition to Defendant’s motion to dismiss
the case as an ultimate sanction, nor has he so much as asked for
more time to comply with the Court’s Orders or for imposition of a
2

Document No. 28 at 4.

3

Id.
3

lesser sanction. The Court reluctantly concludes that dismissal is
the only reasonable sanction remaining under these circumstances.
FED. R. CIV . P. 37(b).

Accordingly, it is

ORDERED that Defendant the University of Texas Health Science
Center

at

Houston’s

Motion

for

Sanctions

Against

Plaintiff

(Document No. 28) is GRANTED, and all of Plaintiff Eddie L.
Horace’s claims are DISMISSED with prejudice.
The Clerk shall notify all parties and provide them with a
signed copy of this Order.
SIGNED at Houston, Texas, on this 3rd day of June, 2013.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

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