Gruber, John et al v. Columbia County et al

Filing 172

ORDER denying 156 Motion to Dismiss filed by defendants City of Portage, Shawn Murphy, Kenneth Manthey and Klaude Thompson. Plaintiff John Gruber has until June 29, 2018 to supplement his responses to defendants' discovery requests as set for th in the March 5, 2018 order, dkt. # 137 , or explain why he cannot do so. If he fails to do so, I will dismiss plaintiff's case as a sanction for his failure to comply with court orders. Signed by District Judge Barbara B. Crabb on 6/20/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHN GRUBER,
OPINION AND ORDER
Plaintiffs,
16-cv-664-bbc
v.
CITY OF PORTAGE, SHAWN
MURPHY, KENNETH MANTHEY
and KLAUDE THOMPSON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff John Gruber is proceeding on claims that defendants City of Portage,
Shawn Murphy, Kenneth Manthey and Klaude Thompson violated his constitutional rights
by ticketing and searching cars parked on or near plaintiff’s business and conducting
unnecessary searches of the property. Now before the court is defendants’ motion to dismiss
the case for plaintiff’s failure to comply with court orders. Dkt. #156. In particular,
defendants argue that plaintiff failed to comply with the court’s March 5, 2018 order in
which I directed plaintiff to supplement his interrogatory and document request responses
by March 19, 2018. Dkt. #137. Defendants say that plaintiff has not supplemented his
responses at all and instead, has continued to demonstrate uncooperative behavior.
Defendants argue that dismissal is the most appropriate sanction for plaintiff’s actions.
Plaintiff did not file a response to defendants’ motion.
As explained below, I am denying defendants’ motion because I conclude that
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dismissal is not appropriate under the circumstances. However, I will order plaintiff to
supplement his discovery responses within 10 days. If plaintiff fails to do so or fails to
explain why he cannot, I will dismiss his case.

OPINION
Under Fed. R. Civ. P. 37(b)(2)(A) and (C), courts can impose sanctions against a
party that fails to comply with a discovery order. Such sanctions may include requiring
payment of costs and fees, prohibiting the party from introducing certain evidence or even
dismissal of the case. Id. See also e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637,
644 (7th Cir. 2011) (district court has “wide latitude in fashioning appropriate sanctions”).
In the March 5, 2018 order, I warned plaintiff that he may be sanctioned or have his case
dismissed if he failed to supplement his discovery responses as ordered. Dkt. #137 at 4.
Plaintiff has now failed to comply with the March 5 order. However, plaintiff’s actions are
not serious enough to justify dismissal at this stage in light of his pro se status and the lack
of apparent prejudice to defendants.
Although plaintiff’s pro se status is not justification for his ignoring court orders or
discovery obligations, it is a relevant consideration in determining an appropriate sanction.
Here, plaintiff’s pro se status and lack of legal experience have clearly affected his actions in
this case. Although he has failed to timely respond to several motions filed by defendants,
he has continued to be active in the case, filing numerous motions and other documents.
Some of his filings have demonstrated his confusion about the claims remaining at issue in

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this case, such as documents he submitted relating to public records requests made by nonparties. As I explained in the March 5 order, plaintiff did attempt to respond to defendants’
extensive discovery requests, which included 22 interrogatories and 147 document requests,
and plaintiff submitted his initial responses only a few days past the deadline upon which
the parties had agreed plaintiff’s responses were due. Many of plaintiff’s responses were
inadequate, but defendants filed their motion to compel without first attempting to confer
with plaintiff about his responses. Although I ordered plaintiff to supplement his answers,
I declined to impose costs or any additional sanctions on plaintiff. Since that time, plaintiff
has continued to submit documents to the court, some which are relevant to this case and
some which are not. Thus, although plaintiff’s failure to supplement his response as ordered
is unacceptable, his failure is somewhat mitigated by his pro se status.
Additionally, defendants have identified no specific prejudice they have suffered as
a result of plaintiff’s failure to timely comply with the March 5 order. Crown Life Ins. Co.
v. Craig, 995 F.2d 1376, 1382 (7th Cir. 1993) (sanctions must “be proportionate to the
circumstances surrounding the failure[s] to comply with discovery,” including consideration
of prejudice or inconvenience to other side). For example, defendants do not say that they
cannot understand plaintiff’s claims or that they have been unable to prepare a defense
because of plaintiff’s delayed discovery responses. They do not say that plaintiff’s failure to
supplement his responses affected their decision not to file a motion for summary judgment.
Further, defendants deposed plaintiff on May 4, 2018, at which time they could have
presumably clarified any outstanding discovery concerns. Of course, plaintiff is not excused

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from supplementing his responses simply because he was deposed, but the deposition
potentially lessens any prejudice defendants have suffered.

Moreover, as I explained

previously, any prejudice defendants could potentially suffer is lessened by the fact that
plaintiff will be prohibited from using at trial any evidence in his possession that would have
been responsive to defendants’ discovery requests but which he failed to provide.
Finally, defendants argue that plaintiff’s failure to comply with discovery obligations
is just one of many instances in which plaintiff has demonstrated uncooperative or dilatory
behavior throughout this case. However, several of defendants’ examples of bad behavior
are not significant. For example, defendants fault plaintiff for filing a motion to extend
discovery deadlines without first conferring with them, dkt. #101, but defendants also filed
multiple discovery motions without first conferring with plaintiff. Dkt. ##109, 110, 127.
Defendants also complain that plaintiff failed to respond to their motion to dismiss early in
the case, but as I explained in denying defendants’ motion, plaintiff was permitted to rely
on the allegations in his pleadings.

Dkt. #95 at 2.

Finally, both sides have filed

unwarranted motions for sanctions in this case. Dkt. ##42, 151.
In sum, although I understand defendants’ frustration in attempting to communicate
with plaintiff and obtain discovery from him, defendants have identified no particular
prejudice they have suffered from plaintiff’s failure to comply with the March 5, 2018 order.
In light of plaintiff’s pro se status, his continued participation in the case and the lack of
prejudice to defendants, I will deny defendants’ motion to dismiss the case. However, I will
order plaintiff to supplement his discovery responses as set forth in the March 5 order within

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10 days or explain in writing why he cannot do so. I will include a copy of the March 5
order with this order for plaintiff’s reference. If plaintiff fails to comply, I will dismiss his
case as a sanction.

ORDER
IT IS ORDERED that
1. The motion to dismiss filed by defendants City of Portage, Shawn Murphy,
Kenneth Manthey and Klaude Thompson, dkt. #156, is DENIED.
2. Plaintiff John Gruber has until June 29, 2018 to supplement his responses to
defendants’ discovery requests as set forth in the March 5, 2018 order, dkt. #137, or explain
why he cannot do so. If he fails to do so, I will dismiss plaintiff’s case as a sanction for his
failure to comply with court orders.
Entered this 20th day of June, 2018.
BY THE COURT:
/s/
_______________________
BARBARA B. CRABB
District Judge

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