Strong v. Outagamie County Sheriff's Department et al

Filing 43

REPORT AND RECOMMENDATION signed by Magistrate Judge Nancy Joseph re 31 MOTION to Dismiss for Failure to Prosecute. IT IS RECOMMENDED that defendants' motion to dismiss (ECF No. 31 ) be GRANTED based on Strong's choice to not meaningfully participate in discovery and that this case be DISMISSED without prejudice. (cc: all counsel, via US mail to Plaintiff)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENNIS STRONG,
Plaintiff,
v.

Case No. 18-cv-237-pp

LANCE L. WILSON, et al.
Defendants.
______________________________________________________________________________
REPORT AND RECOMMENDATION
ON DEFENDANTS’ MOTION TO DISMISS
______________________________________________________________________________
Dennis Strong is a Wisconsin prisoner representing himself in this lawsuit
under 42 U.S.C. § 1983. He alleges that the defendants violated his civil rights. (ECF
No. 1.) The defendants have filed a motion to dismiss for failure to prosecute. For the
reasons stated below, I recommend that defendants’ motion to dismiss be granted.
PROCEDURAL HISTORY
The court screened the complaint on February 20, 2018, and allowed Strong to
proceed on a First Amendment retaliation claim. (ECF No. 5.) Once the defendants
answered, the court issued a scheduling order, setting the deadline for discovery for
January 21, 2019. (ECF No. 19.) In the scheduling order, the court advised Strong
“that failure to make a timely submission or otherwise comply with the court’s orders
may result in the dismissal of the case for failure to prosecute.” Id. at ¶4.

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At the time, Lance Wilson was the only defendant in this matter and began
conducting discovery. On November 19, 2018, he sent Strong medical authorization
forms, requesting Strong to sign and return them. (ECF No. 32 at 2.) Strong did not
respond to the request. Id. The defendant sent two more requests for the
authorization forms on February 8 and February 27, 2019, and Strong did not
respond. Id.
Also, on December 19, 2018, the defendant sent a notice to appear for a
deposition on January 9, 2019 at the Racine Correctional Institution (where Strong
was incarcerated). Id. The defendant heard nothing so made arrangements with staff
at RCI and hired a court reporter. Id. However, when the time came for the
deposition, Strong refused to leave his cell and attend. Id.
Additionally, Strong refused to adequately respond to written discovery
requests. Id. The defendant served his First Set of Written Interrogatories and
Requests for Production of Documents on November 27, 2018. Id. at 3. For months,
Strong did not respond. Then, on January 4, 2019, Strong filed a motion entitled
“Motion to hold Scheduling Order and/or Discovery in Abeyance” wherein he
explained that he was having difficulty participating in discovery and described his
limited access to his legal materials due to a transfer from Red Granite Correctional
Institution to RCI. (ECF No. 20 at 3-4.) He also essentially asked for a stay of the
discovery deadline and requested a hearing. Id. at 5. The defendant filed a letter to

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the court in response outlining the above-mentioned discovery issues and echoing the
request for a status conference. ECF No. 21 at 1.
Accordingly, the court held a status conference on March 19, 2019. During the
hearing, Strong informed the court that he was in the process of hiring a lawyer to
help him with his discovery issues, which is why he requested a stay of the deadline.
ECF No. 24 at 1. The defendant again relayed how Strong was refusing to cooperate
with discovery and initially opposed a stay of the discovery deadline. Id. However the
defendant ultimately agreed to an extension of the discovery and dispositive motions
deadlines. Id. The defendant also requested the court order Strong to fully participate
in discovery. Id. In an oral order, the court ordered Strong to fully participate in
discovery and that no later than April 12, 2019, Strong needed to sign the medical
authorizations and provide the defendant with completed discovery. Id. The court
also set up a follow-up status conference for April 30, 2019. Id.
At the hearing on April 30, the defendant reported that Strong still had not
provided a signed medical authorization nor responded to discovery. (Audio
Recording of Motion Hearing of April 30, 2019 at 9:37:43-9:38:14, Strong v. Wilson,
18-cv-273-pp-nj.) Strong explained that he had an issue with providing his social
security number on the medical authorizations, and the court asked whether he
discussed the concerns with the defendant’s lawyer, to which Strong responded he
had not. Id. at 9:38:15-9:41:09. Strong asked whether the defendant could obtain the
medical records without providing his social security number, and the defendant’s
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counsel explained that the social security number was required by the medical
providers to obtain the medical records. Id. The court explained that the medical
records were necessary to keep the case moving forward and, while it would not
compel Strong to provide the medical authorizations, if he chose not to provide them,
or otherwise refused to participate in discovery, it indicates to the court that Strong
no longer wishes to prosecute the case—which would result in a dismissal. Id. at
9:41:38-9:41:47; 9:44:20-9:44:47; 9:45:00-9:45:10. The court then ordered Strong to
produce the medical authorizations by May 10, 2019 if he wished to continue with his
case. Id. at 9:41:38-9:41:47. Strong then asked whether the defendant would be
interested in settling the case, and the defendant responded that without discovery,
the defendant could not have settlement talks. Id. at 9:49:30-9:50:10; 9:51:35-9:52:04.
The defendant then stated that Strong had yet to respond to written discovery
requests. Id. at 9:53:40-9:54:25. The court warned Strong that if he failed to respond
to discovery, his case would be dismissed. Id. at 9:54:26-9:54:46. The court then
ordered Strong to answer the written discovery requests by May 10, 2019. Id. at
9:56:11-9:56:17. The court also granted Strong’s oral motion to amend the complaint
(ECF No. 23), giving him until May 17, 2019 to file amended pleadings. Id. at
10:00:12-10:02:12.
After the hearing, the court issued an amended scheduling order extending the
discovery deadline to July 12, 2019 and the dispositive motion deadline to August 21,
2019. ECF No. 27. The amended scheduling order once again warned Strong “that
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failure to make a timely submission or otherwise comply with the court’s orders may
result in the dismissal of the case for failure to prosecute.” Id. at ¶3.
Strong filed an amended complaint on May 5, 2019, adding seven additional
parties. The defendants answered on May 30, 2019, ECF No. 30, and then filed the
motion to dismiss currently at issue on June 17, 2019. ECF No. 31.1 In the brief
supporting their motion to dismiss, the defendants state that Strong, as of June 17,
still had not provided the medical authorizations. ECF No. 32 at 4. And while Strong
did submit responses to the defendants’ written discovery requests, he answered
every single interrogatory and request for production of documents the same way:
DUE TO THE PLAINTIFF’S CHRONIC MENTAL HEALTH ISSUES AND
SHORTCOMINGS THEREFROM, THE PLAINTIFF LACKS THE CAPACITY
TO PROVIDE A MEANINGFUL ANSWER TO THE ABOVE.
Id. at 3. The defendants argue that this is functionally a non-response.
In response to the defendants’ motion to dismiss, Strong filed a motion for
sanctions, ECF No. 35, and a motion entitled “Motion for Extension of Time, Motion
for Relief from the E-Filing Project.” ECF No. 40. In his motion for sanctions, Strong
explained his reason for not providing the medical authorizations, stating that he
“made the judgment call to not effectuate what is deemed to be an unlawful
authorization form.” ECF No. 35 at 4. Strong argued that the form, in requiring his
social security number, violates the law; however, he does not explain how. Id. He

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  Because the defendants filed a motion to dismiss for failure to follow the court orders regarding
discovery, which does not concern the substance of the claims, the court stayed screening the complaint
until the motion to dismiss is resolved.

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stated that he tried to talk to defendants’ counsel about his concerns, but his concerns
“fell on deaf ears.” Id. He also complains that the defendants’ affidavit submitted in
support of their motion to dismiss violates the law because it includes forms with his
social security number. Id. at 3-4.
After the defendants had time to reply to Strong’s motions, the court set a
hearing, which was held on October 1, 2019. Strong once again objected to the
requirement that he include his social security number and explained that he could
not respond to discovery or appear for his deposition because he did not have his legal
materials. Audio Recording of Motion Hearing of October 1, 2019 at 10:37:3010:44:40, Strong v. Wilson, 18-cv-273-pp-nj. The defendants stated that Strong
frequently states that he does not have his legal materials as an excuse for his nonparticipation in discovery. Id. at 10:50:30-10:51:51. The court once again explained
that the case cannot move forward without the medical authorizations and that the
medical providers are requiring that the form includes his social security number for
the release of records, not the defendant. Id. at 10:48:49-10:49:49. The court also
addressed Strong’s concern about the defendants’ including his social security
number in their court filings, explaining that the records are restricted and only the
parties and court personnel can access that information. Id. at 10:49:50-10:50:13. The
court noted that it has repeatedly explained to Strong what would happen if he
chooses not to comply with the court’s previous orders and discovery and told Strong
that it appears he made a choice not to comply. Id. at 10:53:23-10:54:41. Based on
that choice, the court stated it appears that it has no other option other than to
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recommend to the district court judge to grant the defendants’ motion to dismiss for
failure to prosecute the case. Id. However, the court indicated it would take the time
to consider all the events in this case, outline the case history, and put its
recommendation in writing. Id.
ANALYSIS
Under Federal Rule of Civil Procedure 37, if a party “fails to obey an order to
provide or permit discovery . . . the court may issue further just orders. They may
include . . . dismissing the action or proceeding in whole.” Fed. R. Civ. P.
37(b)(2)(A)(v). The court has given Strong several chances to respond and participate
in discovery. While the court understands Strong’s reservations about providing his
social security number, the court and the opposing parties have made
accommodations to protect this information, including restricting the record. The
court has also had several discussions with Strong regarding the necessity of
providing the social security number to the medical providers, with the court
explaining to Strong several times that providing the number is the only way to get
the medical records. Strong has also been warned by the court several times that
failure to release his medical records will result in dismissal of the case because the
case cannot move forward without that information. Yet, Strong chose to ignore these
warnings, stating that he “made the judgment call to not effectuate” the authorization
form. ECF No. 35 at 4.

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Strong has also failed to meaningfully respond to written discovery requests or
appear for his deposition. On several occasions he blamed his nonparticipation on his
lack of access to his legal materials. When he did finally respond to the written
discovery requests, he stated that he lacked the mental capacity to respond. However,
the court has had several interactions with Strong and found him capable of
discussing his case in a substantial and meaningful way. His filings have been clear
and easy to understand and suggest that Strong could have meaningfully
participated in written discovery. The court has ordered him several times to do so,
and Strong continues to flout those orders. Such orders are “designed to enable judges
to control their dockets and manage the flow of litigation.” Hoskins v. Dart, 633 F.3d
541, 543 (7th Cir. 2011). And, failure to obey those orders justifies dismissal under
Rule 37. Id.
IT IS THEREFORE RECOMMENDED that defendants’ motion to dismiss
(ECF No. 31) be GRANTED based on Strong’s choice to not meaningfully participate
in discovery and that this case be DISMISSED without prejudice.
Strong’s attention is directed to 28 U.S.C. § 636(b)(1)(B) and (C) and Fed. R.
Civ. P. 72(b)(2), which allow Strong to file written objections to the court’s
recommendation within fourteen days of service of the recommendation. Strong’s
failure to timely file objections with the district court shall result in a waiver of his
right to appeal.

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Dated at Milwaukee, Wisconsin this 18th day of November, 2019.
BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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