Gruber, John et al v. Columbia County et al

Filing 188

ORDER denying 174 Motion to Dismiss filed by defendants City of Portage,Shawn Murphy, Kenneth Manthey and Klaude Thompson. Signed by District Judge Barbara B. Crabb on 8/13/2018. (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.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On June 20, 2018, I denied the motion to dismiss filed by defendants City of Portage,
Shawn Murphy, Kenneth Manthey and Klaude Thompson. Dkt. #172. Defendants argued
that pro se plaintiff John Gruber’s claims against them should be dismissed because plaintiff
failed to comply with court orders relating to discovery. In denying defendants’ motion, I
concluded that plaintiff’s actions did not warrant dismissal of his case. However, I ordered
plaintiff to supplement his discovery responses within 10 days. Plaintiff submitted a twopage supplement to his discovery responses on July 3, 2018. Dkt. #173. For the most part,
plaintiff’s response states that he does not have any additional documents in his possession
or control that are responsive to defendants’ discovery requests.
Now defendants have filed a renewed motion to dismiss plaintiff’s claims on the
ground that plaintiff’s supplemental response in insufficient. Dkt. #174. Defendants argue
that plaintiff failed to (1) respond under oath, (2) identify specific documents he believes
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are relevant, regardless whether he has them in his custody or control, (3) provide documents
he could have accessed from public files and (4) clarify previous allegations and responses.
Defendants again seek dismissal under Fed. R. Civ. P. 37(b)(2)(A) and (C).
I am denying defendants’ motion. Plaintiff’s supplemental responses are not as
complete as they could be. Some of his responses are vague. Additionally, plaintiff seems
to think he provided information to defendants during depositions at which defendants were
not present. However, plaintiff’s responses do not warrant dismissal of his case.
First, defendants do not clearly explain why further supplementation would be useful
at this stage or what specific documents they believe plaintiff has refused to provide.
Plaintiff’s claims in this case seem fairly straightforward. He contends that defendants
violated his constitutional rights by ticketing and searching cars parked on or near his
business and conducting unnecessary searches of his property. Defendants do not suggest
that they need plaintiff to clarify his previous discovery responses to understand plaintiff’s
claims or to understand how he intends to prove his claims. Rather, defendants’ primary
argument seems to be that plaintiff has alluded to documents that purportedly support his
claim, but has refused to produce such documents. For example, defendants argue that
plaintiff has refused to explain his vague references to “court documents” or documents that
were destroyed in storage. However, neither side has explained what these documents are
and, as I have stated on multiple occasions, plaintiff would be prohibited from using any
evidence in his possession that would have been responsive to defendants’ discovery requests
but which he failed to provide. Thus, if plaintiff were to come up with “court documents”

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or previously undisclosed documents from his storage units, he could not rely on them to
prove his claims. In short, defendants can assume at this point that no such documents
exist.
Next, defendants state that plaintiff’s delayed discovery responses “deprived [them]
of the opportunity to determine whether to bring a summary judgment motion.” Dkt. #174
at 8. However, defendants make no attempt to explain this statement. If plaintiff had
attempted to oppose summary judgment by submitting evidence that should have been
disclosed to defendants earlier, defendants could have moved to exclude it. Additionally, if
defendants believed that plaintiff’s delayed discovery responses affected their ability to file
a timely summary judgment motion, they could have requested an extension of the
dispositive motion deadline from the court. They did not do so.
Finally, many of defendants’ arguments are the same that I considered in my previous
order. For the reasons explained already, I am not persuaded that dismissal of this case is
warranted. At this stage, the parties should focus on preparing for trial.
ORDER
IT IS ORDERED that the motion to dismiss filed by defendants City of Portage,
Shawn Murphy, Kenneth Manthey and Klaude Thompson, dkt. #174, is DENIED.
Entered this 13th day of August, 2018.
BY THE COURT:
/s/
_______________________
BARBARA B. CRABB
District Judge

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