Rucker v. Swensen et al

Filing 76

MEMORANDUM DECISION and Ordergranting in part and denying in part 70 Motion for Sanctions. The defendants' motion is GRANTED to the extent is seeks a sanction, but is DENIED to the extent it seeks dismissal. As described more fully above, the court ORDERS:1. The defendants' motion is GRANTED in part and DENIED in part;2. The scheduling order is amended as set forth above;3. The defendants may depose Mr. Rucker within thirty days of the date of this order. Signed by Magistrate Judge Daphne A. Oberg on 07/29/2021. (jl)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

GARY WASHINGTON RUCKER,
Plaintiff,
v.
CHASE SWENSEN and KAI SAFSTEN,
Defendants.

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SANCTIONS FOR
PLAINTIFF’S FAILURE TO COMPLY
WITH COURT’S ORDER COMPELLING
ANSWERS TO WRITTEN DISCOVERY
(DOC. NO. 70)
Case No. 1:15-cv-00054-JNP-DAO
Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg

Before the court is Defendants Chase Swensen and Kai Safsten’s Motion for Sanctions
for Plaintiff’s Failure to Comply with Court’s Order Compelling Answers to Written Discovery
(“Mot.,” Doc. No. 70). For the reasons set for below, 1 the court GRANTS in part and DENIES
in part the motion.
BACKGROUND
Proceeding pro se, Mr. Rucker brought this action pursuant to 42 U.S.C. § 1983 against
Chase Swensen, Kai Safsten, and the Ogden City Policy Department. 2 (Compl., Doc. No. 3.)
Mr. Rucker alleges Officers Swensen and Safsten violated his constitutional rights by unlawfully
stopping and arresting him, using excessive force, and subjecting him to cruel and unusual

Pursuant to Local Rule DUCivR 7-1(f), the motion is decided on the basis of the written
memoranda, as oral argument unnecessary.
1

2

The Ogden Police Department is no longer a party to this action. (See Corrected Order, Doc.
No. 36.)
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punishment. (See generally id.)
The defendants previously filed a motion to dismiss for failure to prosecute. In that
motion, the defendants argued, in part, that the complaint should be dismissed because Mr.
Rucker failed to prosecute by failing to respond to written discovery and failing to keep the court
apprised of his address. (Mot. to Dismiss with Prejudice, or in the Alt. to Compel Answers to
Disc. and Modify Sched. Order (“Mot. to Dismiss”) 2, Doc. No. 60.) The court denied the
motion to dismiss because the defendants did not establish Mr. Rucker’s noncompliance rose to
the level required to find failure to prosecute. (R & R, Doc. No. 68; Order Adopting R & R,
Doc. No. 72.) In the order, the court recognized that except for a short period where he was
released to a halfway house, Mr. Rucker has been incarcerated during the pendency of the
litigation. (R & R 3, Doc. No. 68.) The court did, however, grant the defendants’ alternative
request for an amended scheduling order and an order compelling Mr. Rucker to respond to the
outstanding discovery requests. (Mem. Dec. and Order Granting Defs.’ Mot., (“Order to
Compel”), Doc. No. 69.) Specifically, the court ordered Mr. Rucker to respond to the
defendants’ outstanding discovery requests by March 24, 2021. (Id. at 4.)
The current motion for sanctions arises out of Mr. Rucker’s alleged failure to comply
with the court’s March 2021 order to compel. The defendants assert Mr. Rucker contacted
defense counsel on March 18, 2021, claiming he had lost the discovery requests. (Mot. 3, Doc.
No. 70.) That same day, defense counsel re-sent Mr. Rucker the discovery requests and a
template for his responses. (Id.) On March 24, 2021, the court-imposed deadline for the
discovery responses, defense counsel received a call which appeared to be from Mr. Rucker. But
the call disconnected because Mr. Rucker lacked sufficient funds in his prison phone account.
(Id. at 4.) On May 6, 2021, the defendants filed the current motion for sanctions, seeking

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dismissal of the case as a sanction under Rule 37(b)(2)(A) of the Federal Rules of Civil
Procedure because Mr. Rucker failed to respond to the outstanding discovery requests. (Id.)
On July 2, 2021, the defendants supplemented their motion to inform the court that Mr.
Rucker had produced a partial response to the requests for written discovery. (Supp. to Defs.’
Mot. for Sanctions for Pl.’s Failure to Comply with Court’s Order Compelling Answers to
Written Disc. (“Supp.”) 1, Doc. No. 75.) However, the defendants continue to assert their
motion seeking dismissal as a sanction because Mr. Rucker’s responses were late by
approximately ninety days. (Id. at 2.) Further, the defendants argue they are limited in how they
can use the information Mr. Rucker provided because he sent his responses after the discovery
period expired. (Id.) Lastly, the defendants contend the responses are incomplete and
inadequate. (Id.)
LEGAL STANDARD
The defendants seek dismissal as a sanction under Rule 37(b)(2)(A). This rule permits a
court to “issue further just orders” when a party “fails to obey an order to provide . . . discovery.”
Fed. R. Civ. P. 37(b)(2)(A). This includes an order dismissing the action. Id. at 37(b)(2)(A)(v).
Courts enjoy “broad inherent power to sanction misconduct and abuse of the judicial process.”
Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015). However, dismissal is “an extreme
sanction appropriate only in cases of willful misconduct.” Ehrenhaus v. Reynolds, 965 F.2d 916,
921 (10th Cir. 1992).
To determine whether dismissal is appropriate, the court applies the five factors
enumerated in Ehrenhaus:
(1) the degree of actual prejudice to the non-offending party,
(2) the degree of interference with the judicial process,

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(3) the culpability of the offending party,
(4) whether the court warned the party in advance that default judgment would be a likely
sanction for noncompliance, and
(5) the efficacy of lesser sanctions
See id.; Celtig, LLC v. Patey, No. 2:17-cv-01086, 2021 U.S. Dist. LEXIS 16429, at *5 (D. Utah
Jan. 27, 2021) (unpublished). These factors do not establish a rigid test, nor are they exhaustive
or entitled to equal weight. Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir.
2005). They are simply factors the court must consider. Id. Because dismissal is “a harsh
sanction,” id., “[o]nly when the aggravating factors outweigh the judicial system’s strong
predisposition to resolve cases on their merits is dismissal an appropriate sanction.” Ehrenhaus,
965 F.2d at 921 (internal quotation marks omitted).
ANALYSIS
The defendants seek dismissal because Mr. Rucker’s responses were late and allegedly
inadequate. (Supp. 2, Doc. No. 75.) However, other than their assertion of prejudice, the
defendants do not argue how Mr. Rucker’s conduct warrants dismissal under the Ehrenhaus
factors. And under these factors, Mr. Rucker’s conduct does not yet warrant the extreme
sanction of dismissal.
I.

Ehrenhaus Factors
Under the first Ehrenhaus factor, any prejudice to the defendants can be alleviated

through lesser sanctions. The defendants claim two types of prejudice. First, they claim that
because they received the discovery responses after the close of discovery, they are “now unable
to do anything with the limited information Mr. Rucker provided.” (Id.) But the defendants fail
to indicate what they are prevented from doing. The defendants further allege some

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interrogatory responses are deficient and that Mr. Rucker did not produce documents, claiming
he will do so after he is released from prison. (Id. at 2–3.)
This claimed prejudice can be mitigated by lesser sanctions. As of March 24, 2021, the
court-imposed deadline for Mr. Rucker to respond to the outstanding discovery, a majority of the
deadlines in the scheduling order had long passed. (Am. Sched. Order, Doc. No. 55.) For
instance, the last day to serve written discovery, November 11, 2020, had passed before the
defendants brought their motion to compel. Further, the defendants deposed Mr. Rucker more
than a year before filing this motion to compel. (See Mot. to Amend Sched. Order 2, Doc. No.
43 (noting the defendants took Mr. Rucker’s deposition on September 18, 2019).) When the
court ordered Mr. Rucker to respond to the outstanding discovery requests, it amended the
scheduling order, but only as to a few, limited deadlines, such as the fact discovery and expert
witness disclosure deadlines. (Order to Compel 4, Doc. No. 69.)
Looking at this case background, it is unclear how the defendants have been prevented
from using the information they received in the late-filed discovery. For example, they could not
have served additional written discovery either way. And they offer no evidence to establish
they could have continued Mr. Rucker’s deposition. Accordingly, any limited prejudice can be
alleviated by extending deadlines for the defendants only.
Turning next to the fifth Ehrenhaus factor, lesser sanctions can also mitigate the effect of
incomplete discovery responses. The defendants allege two areas of deficiency: document
production and interrogatory responses. Regarding the document production, the defendants
make no attempt to establish the documents were in Mr. Rucker’s “possession, custody, or
control” since the court issued the order, such that Mr. Rucker is in violation of the rules. Fed.
R. Civ. P. 34(a)(1). The burden is on the requesting party to establish the opposing party has

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control, possession, or the ability to obtain the documents. Ice Corp. v. Hamilton Sundstrand
Corp., 245 F.R.D. 513, 516 (D. Kan. 2007).
Here, the defendants claim Mr. Rucker had the document requests for a period of time
while he was not incarcerated. (Supp. 2, Doc. No. 75.) However, at the prior hearing on the
defendants’ motion to dismiss, Mr. Rucker indicated he was incarcerated for the entirety of the
case, except for a short time where he was released to a halfway house. There are no facts before
the court establishing whether Mr. Rucker had the ability to retrieve documents while at the
halfway house. Further, there is no indication Mr. Rucker was in possession, custody, or control
of the documents after the court’s order but before the deadline to respond, such that he was in
violation of the order. As to the specific documents requested, the defendants have not
established Mr. Rucker is in violation of the court’s order to respond to the outstanding
discovery, except as to filing his response past the deadline. In other words, the defendants have
not established how Mr. Rucker’s production (or lack of) violates the court’s order.
As to the interrogatories, the defendants claim Mr. Rucker’s responses are inadequate
because he failed to provide information about his alleged injuries or healthcare providers, other
than a reference to his insurance company. (Id. at 2–3.) While any dispute about the adequacy
of the interrogatory responses is not currently before the court, Mr. Rucker did not file an
opposition to defendants’ motion. Accordingly, he has not disputed the defendants’ contention.
Information regarding Mr. Rucker’s injuries and healthcare providers is likely material to the
case and relevant to any defense. Mr. Rucker’s alleged failure to respond to the interrogatories
would prejudice the defendants. However, a lesser sanction can alleviate this prejudice.
Permitting the defendants to continue Mr. Rucker’s deposition to address these topics would
allow the defendants to obtain the necessary information. Cf. Brown v. Gray, No. 06-3003, 2010

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U.S. Dist. LEXIS 5298, at *11–12 (D. Kan. Jan. 22, 2010) (denying defendants request to
dismiss case as a violation of a motion to compel, but permitting the defendants to depose the
plaintiff to clarify his discovery responses). Where any prejudice to the defendants can be
mitigated with a lesser sanction, the first and last Ehrenhaus factors weigh against dismissal.
The second Ehrenhaus factor, the amount of interference with the judicial process, also
weighs against dismissal. “Greater degrees of obstruction help justify a dismissal sanction.”
King v. Fleming, 899 F.3d 1140, 1151 (10th Cir. 2018). Notably, a party “interferes with the
judicial process when it fails to abide by discovery orders.” Burgi v. Awolf Fitness, No. 2:19-cv00151, 2021 U.S. Dist. LEXIS 35993, at *11 (D. Utah Feb. 25, 2021) (internal quotation marks
omitted) (unpublished); see also Celtig v. Patey, No. 2:17-cv-01086, 2019 U.S. Dist. LEXIS
164558, at *17 (D. Utah Aug. 19, 2019) (unpublished) (noting that if the defendants had
complied with discovery, the case “would be nearing resolution on the merits rather than in
motion practice regarding contempt and terminating sanctions”); Taylor v. D.Colo. Safeway,
Inc., 116 F. App’x 976, 978 (10th Cir. 2004) (unpublished) (finding that “[t]he judicial process
essentially grounded to a halt” due to the plaintiff’s refusal “to respond to either the defendant’s
requests or the district court’s orders”).
Mr. Rucker’s delayed responses have had little effect on the progress of the case.
Although this case has been pending for a significant amount of time, Mr. Rucker has been
incarcerated during most of this litigation. (Mot. to Dismiss 3, Doc. No. 60.) As the defendants
acknowledge, both Mr. Rucker’s incarceration and the coronavirus pandemic have complicated
and delayed this case. (Id. at 3–4.) For example, Mr. Rucker had no computer, phone, or email
access. (Mot. to Amend Sched. Order 2, Doc. No. 43.) Further, and more importantly, the
defendants requested seven (and received six) extensions of deadlines in the scheduling order

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before filing a single motion to compel. (See Order Granting in Part and Den. in Part Defs.’ Mot.
to Modify Sched. Order 1, Doc. No. 57.) The defendants asserted these extensions were to
accommodate Mr. Rucker. (See, e.g., Mot. to Dismiss 2–3, Doc. No. 60.) While this may be
true, this procedural history must be considered when determining to what degree Mr. Rucker’s
actions have interfered with the judicial process. There is no doubt Mr. Rucker’s actions have
caused some interference. The untimeliness and incompleteness of his answers requires
amendment of the scheduling order. This, in and of itself, constitutes interference. However,
when viewed in the context of the case as a whole, this interference does not rise to a level
warranting dismissal.
The third Ehrenhaus factor, culpability of the litigant, carries no weight. Culpability
exists where the litigant “acted with willfulness, bad faith, and fault” and made calculated
decisions for strategic use in litigation. Xyngular v. Schenkel, 890 F.3d 868, 874 (10th Cir.
2018). It cannot be based on inability to comply. Archibeque v. Atchison, Topeka & Santa Fe
Ry. Co., 70 F.3d 1172, 1174 (10th Cir. 1995). Here, there is some evidence to suggest Mr.
Rucker’s delay and incomplete responses could be due to an inability to comply. As noted, Mr.
Rucker lacked the ability to reliably communicate while incarcerated. And Mr. Rucker
ultimately did respond to the discovery requests, albeit approximately three months past the
deadline. However, Mr. Rucker did not provide evidence definitively showing he was unable to
respond in a timely and complete manner. Because of this, the third factor is neutral.
The fourth Ehrenhaus factor—whether the court warned Mr. Rucker of the potential for
dismissal—weights in favor of dismissal. At the hearing on the defendants’ motion to dismiss,
the court warned Mr. Rucker on the record that noncompliance with an order compelling

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discovery responses could result in dismissal. Where Mr. Rucker was adequately warned, this
factor weighs in favor of dismissal.
Overall, the aggravating factors do not outweigh the “the judicial system’s strong
predisposition to resolve cases on their merits.” See Ehrenhaus, 965 F.2d at 921. The “harsh
sanction” of dismissal is not appropriate in this case. See Chavez, 402 F.3d at 1044. The
defendants’ motion is DENIED to the extent it seeks dismissal as a sanction.
II.

Sanction
Although dismissal is not warranted by the existing record, Mr. Rucker’s delayed and

incomplete responses do warrant a sanction. Determining an appropriate sanction for a
discovery violation is “a fact-specific inquiry.” Ehrenhaus, 965 F.2d at 920. The sanction “must
be both just and related to the particular claim which was at issue in the order to provide
discovery.” Id. at 921 (internal quotation marks omitted). Amending the scheduling order to
restore the time between the responses and the remaining deadlines for the defendants only—and
permitting the defendants to depose Mr. Rucker again mitigates any harm to the defendants. In
order to restore time to the defendants, the deadlines are amended as follows.
•

Fact discovery for the defendants only: September 29, 2021

•

Expert witness disclosure and report deadline for the defendants only: October 29,
2021

•

Deadline for filing dispositive or potentially dispositive motions for both parties:
November 29, 2021

The defendants are permitted to depose Mr. Rucker again. The deposition must occur
within thirty days of this order and is limited in scope to the interrogatory responses the
defendants contend are inadequate. The deposition is limited to two hours.

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Mr. Rucker is again reminded of his obligation to respond to discovery requests in a
timely and complete way, and he is cautioned to comply with all court orders. Mr. Rucker
should not expect further latitude.
CONCLUSION
The defendants’ motion is GRANTED to the extent is seeks a sanction, but is DENIED to
the extent it seeks dismissal. As described more fully above, the court ORDERS:
1. The defendants’ motion is GRANTED in part and DENIED in part;
2.

The scheduling order is amended as set forth above;

3. The defendants may depose Mr. Rucker within thirty days of the date of this
order.
DATED this 29th day of July, 2021.
BY THE COURT:
____________________________
Daphne A. Oberg
United States Magistrate Judge

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