Hentz v. Milwaukee County Jail et al

Filing 35

ORDER signed by Judge J.P. Stadtmueller on 8/29/2017: DENYING 23 and 24 Plaintiff's Motions for Extension of Time; DENYING 25 Plaintiff's Motion to Compel; DENYING 26 Plaintiff's Motion to Produce Witnesses; GRANTING 27 Defendant's Motion to Dismiss; DENYING as moot 18 Defendant's Motion to Compel; and DISMISSING CASE. (cc: all counsel, via mail to Raymond Hentz at Oakhill Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND HENTZ,
Plaintiff,
v.

Case No. 16-CV-981-JPS

ORDER

RANDALL WILBORN,
Defendant.

Before the Court are various discovery motions filed by both parties.
The Court will turn first to Defendant’s motion to dismiss for failure to
participate in discovery, (Docket #27), as resolution of that motion will moot
the others.
Defendant asks the Court to dismiss this case because Plaintiff has
refused to participate in the discovery process. Defendant’s attempts at
serving written discovery were frustrated from the start because Plaintiff
did not maintain a current address with the Court. (Docket #19 at 2-3).
Defendant sent his requests unsuccessfully to two different correctional
facilities—on January 31 and February 20, 2017—before it learned, due to
its own reconnaissance, where the Plaintiff is currently incarcerated,
Oakhill Correctional Institution (“Oakhill”). Id. On June 6, 2017, Defendant
sent correspondence to the Plaintiff at Oakhill advising him that his
discovery responses were overdue and requesting that Plaintiff forward
responses immediately. Id. With the exception of providing requested
copies of grievances and one signed medical release, Plaintiff did not
provide other requested information, including answers to interrogatories

seeking additional information about the circumstances of and witnesses to
the incident underlying his claim, information about his health care
providers, or medical authorizations for any entity, including the
Department of Corrections, other than the jail where he was incarcerated
during the incident in question. (Docket #28 at 4). Plaintiff still, as of
Defendant’s July 31, 2017 motion to dismiss, has not supplied complete
responses to Defendant’s discovery requests. Id. at 2, 4. Defendant states
that Plaintiff never made an effort to contact or communicate with
Defendant’s counsel regarding the outstanding requests. Id. at 2.
Then on July 11, 2017, Defendant served a notice of deposition on
Plaintiff, informing him that his deposition would be taken on July 27, 2017.
Id. at 3. Plaintiff did not contact Defendant’s counsel to request that his
deposition be rescheduled or canceled, so on July 27 Defendant’s counsel
and a court reporter traveled to Oakhill to take Plaintiff’s deposition. Id. As
the court reporter attempted to administer the oath, Plaintiff informed
Defendant’s counsel that he refused to provide any testimony. Id.
Defendant’s counsel states that “[d]espite requesting numerous times, and
attempting to obtain [Plaintiff’s] agreement to respond to simple
background questions, [Plaintiff] insisted that he would not respond
without an attorney present.” Id. at 4. Plaintiff then confirmed to
Defendant’s counsel that he is not currently represented by an attorney. Id.1
Understandably frustrated with being forced to expend the time and
resources to travel to Oakhill in Oregon, Wisconsin, to take a deposition in

Plaintiff filed two motions requesting extensions of time because he is
seeking counsel, though he does not specify which deadlines he wants extended.
(Docket #23 and #24). Plaintiff could have secured counsel before filing this action.
The Court will not extend its deadlines based on the Plaintiff’s failure to get his
house in order before filing suit. His motions will be denied.
1

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which Plaintiff refused to participate, and having still not received complete
written discovery responses, Defendant has requested that the Court
dismiss this case either for failure to prosecute under Federal Rule 41(b) or
as a discovery sanction under Federal Rule 37. Id. at 5.
Dismissal is appropriate here under either Rule 37 or Rule 41(b). The
dismissal of a case as a Rule 37 discovery sanction is appropriate when the
court finds willfulness, bad faith, or fault on the part of the defaulting party.
Brown v. Columbia Sussex Corp., 664 F.3d 182, 190–91 (7th Cir. 2011). Under
Rule 41(b), a case can be dismissed when “there is a clear record of delay or
contumacious conduct, or when other less drastic sanctions have proven
unavailing.” Id. (quotation omitted). Plaintiff’s refusal to answer any
questions during his deposition, coupled with his delayed and incomplete
responses to written discovery, amount to bad-faith, contumacious
conduct. See Watkins v. Nielsen, 405 F. App’x 42, 44 (7th Cir. 2010) (dismissal
of inmate’s Section 1983 action under Rule 37 was appropriate where
inmate failed to timely and completely respond to discovery, produced no
documents, and failed to attend the final pretrial conference despite a court
order to appear). Further, Plaintiff has not attempted to defend his conduct
by filing a response to Defendant’s motion to dismiss. The Court will,
therefore, grant Defendant’s motion to dismiss this action in its entirety.2

Two final matters requiring resolution are the discovery requests that
Plaintiff improperly filed as discovery motions. First, Plaintiff filed a “motion to
compel” asking that the Court order non-party Milwaukee County Jail to produce
certain video footage. (Docket #25). Plaintiff does not state that the Milwaukee
County Jail failed to produce such information in response to a properly served
subpoena; he simply asks the Court to collect the footage on his behalf. Next,
Plaintiff filed a “motion to produce witnesses [sic]” requesting that the Court make
nine witnesses available for something, but Plaintiff does not specify whether he
wants to take their depositions, have them appear at trial, or something else.
2

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Accordingly,
IT IS ORDERED that Plaintiff’s motions for extension of time
(Docket #23 and #24) be and the same are hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to compel
(Docket #25) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to produce
witnesses (Docket #26) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant’s motion to dismiss
(Docket #27) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant’s motion to compel
(Docket #18) be and the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of August, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

(Docket #26). To the extent these motions are an attempt at discovery, they are
improper; Plaintiff was warned in the Court’s Scheduling Order that discovery
requests are to be mailed to the party from whom discovery is sought, and not
simply filed with the Court. (Docket #13). Plaintiff’s motions will be denied.

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