Opinion
Civil Action 6:23-cv-5731-JDA-KFM
07-08-2024
Marteebia Hill, Plaintiff, v. Whitten Center, Elizabeth Redd, and Craig Byrd, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendants' first amended motion to dismiss and second amended motion to dismiss (docs. 28, 44). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.
BACKGROUND AND FACTUAL ALLEGATIONS
In her complaint filed on November 9, 2023, the plaintiff, a black female who is proceeding pro se, alleges that she has been an employee since 2019 of the South Carolina Department of Disabilities and Special Needs at its Whitten Center facility (doc. 1, comp. ¶ 1). She alleges that her claims against the defendants arise under the Age Discrimination in Employment Act (“ADEA”), the Family and Medical Leave Act (“FMLA”), and the Americans with Disabilities Act (“ADA”) (id. ¶ 5). However, later in her complaint, she alleges only two causes of action: Count I - interference and retaliation under the FMLA, and Count II - discrimination and retaliation under the ADA (id. ¶ 8). The plaintiff alleges that defendant Redd (white female) is the Director of the Whitten Center's Day Program and the plaintiff's supervisor, and defendant Byrd (white male) is the Whitten Center's Facility Administrator and defendant Redd's supervisor and cousin (id. ¶¶ 3-4).
The complaint alleges no other facts in support of the plaintiff's claims (see generally doc. 1). However, the plaintiff attached to the complaint a copy of her charge of discrimination, which was submitted to the Equal Employment Opportunity Commission (“EEOC”) on June 17, 2023 (doc. 1-1 at 2). In that charge, the plaintiff alleged that her current position at the Whitten Center is as a Workforce Specialist I (id.). She stated that she had an accident in 2021 that left her with lifting restrictions of ten pounds and no pushing and pulling (id.). The plaintiff alleged that she submitted FMLA paperwork in October 2022 that took two months to be approved; defendant Redd made fun of her for not being able to push a wheelchair due to her medical restrictions; defendant Redd made her workplace so hostile that the plaintiff suffered a medical episode in December 2022; in February 2023, all employees who had medical restrictions were told that they would have to work weekends; the plaintiff complained to human resources in February 2023 about how defendant Redd treated her; also in February 2023, defendant Redd wrote up the plaintiff, but the infraction was overturned by leadership; and in April 2023, defendant Redd tried to give the plaintiff negative remarks on a performance review, but the plaintiff refused to sign the review until it was legitimate, and the review was made positive (id.). The plaintiff alleged in the charge that she was discriminated against in violation of the ADA due to her medical condition and in violation of the ADEA due to her age (51) (id.).
On January 29, 2024, the defendants filed a motion to dismiss (doc. 22). The following day, on January 30, 2024, the defendants filed an amended motion to dismiss (doc. 28) (“first amended motion to dismiss”), which rendered the original motion to dismiss moot. Because the plaintiff is proceeding pro se, on January 30, 2024, by order of this court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment and dismissal procedure and the possible consequences if she failed to respond adequately to the defendants' motion (doc. 31). The deadline for her response to the first amended motion to dismiss was March 1, 2024 (id.). On March 4, 2024, the plaintiff filed a motion for extension of time due to an unforeseen family matter and a death in the family (doc. 41). The undersigned granted the motion in part, extending the plaintiff's time for response until April 1, 2024 (doc. 42).
The defendants' memorandum in support of the first amended motion to dismiss was filed on January 31, 2024 (doc. 33).
On April 3, 2024, the defendants filed a second amended motion to dismiss (doc. 44). As the plaintiff is proceeding pro se, another Roseboro order was issued by the court on April 4, 2024, again advising the plaintiff of the summary judgment and dismissal procedure and the possible consequences if she failed to respond adequately to the motion (doc. 46). The deadline for the plaintiff's response to the second amended motion to dismiss was May 6, 2024 (id.). On April 5, 2024, the plaintiff filed a motion for extension of time, stating that she had a medical issue that had interfered with her ability to properly respond to the first amended motion to dismiss (doc. 47). In an order filed April 8, 2024, the undersigned noted that since the plaintiff mailed her motion for extension of time, the defendants filed a second amended motion to dismiss; accordingly, the deadline for the plaintiff's response to the defendants' first amended motion to dismiss was extended until May 6, 2024, the same date as the deadline for the plaintiff's response to the defendants' second amended motion to dismiss (doc. 48).
On May 9, 2024, the plaintiff filed a third motion for extension of time, stating that she had a critical medical issue that interfered with her ability to properly respond to the pending motions (doc. 50). The undersigned granted the plaintiff's motion for extension until May 28, 2024 (doc. 51). In doing so, the court noted that the defendants' first amended motion to dismiss had been pending for several months and that this matter could not and would not be allowed to languish on the docket indefinitely (id.). Accordingly, the undersigned further noted in the order that no further extensions would be allowed and specifically advised the plaintiff that if she failed to respond to the defendants' motions by May 28, 2024, the undersigned would recommend that the district court dismiss this action pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute, and the dismissal would be considered an adjudication on the merits, i.e., with prejudice (id.). The plaintiff failed to file any response to the pending motions to dismiss.
APPLICABLE LAW AND ANALYSIS
In their second amended motion to dismiss, the defendants argue that this case should be dismissed pursuant to Federal Rule of Civil Procedure 37 due to the plaintiff's failure to respond to the first amended motion to dismiss and her failure to participate in discovery. Specifically, the defendants served the plaintiff with interrogatories, requests for production, and a notice of deposition on January 29, 2024 (docs. 27, 44-1). The notice of deposition set the plaintiff's deposition for April 2, 2024, at 10:00 a.m. at the office of defense counsel (doc. 44-1 at 3). The cover letter to the plaintiff that was sent with the discovery requests and deposition notice by defense counsel's legal assistant specifically invited the plaintiff to let the defense counsel's office know if the date and time for the deposition did not work for the plaintiff's schedule (id. at 1). The plaintiff did not respond to the defendants' discovery requests or notice of deposition and did not contact the defendants' counsel at any time (doc. 44 at 2).
Because the undersigned recommends that this case be dismissed for failure to prosecute and failure to participate in discovery, the defendants' first amended motion to dismiss, in which the defendants argue that the plaintiff's complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6), will not be further considered herein.
Rule 37(d) provides that a party's failure, after being served with proper notice, to attend her own deposition or answer discovery may be sanctioned by the court as provided in Rule 37(b)(2)(A)(i)-(vi). Fed.R.Civ.P. 37(d)(3). Accordingly, under Rule 37(b)(2)(A), sanctions for failure to provide or permit discovery may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party. ...Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi) (emphasis added).
A court should consider the following factors in determining what sanctions to impose under Rule 37:
(1) whether the non-complying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.Mut. Fed. Sav. and Loan Assn v. Richards & Assocs. Inc., 872 F.2d 88, 92 (4th Cir. 1989). To warrant dismissal, the offending party's conduct in the litigation must demonstrate a “pattern of indifference and disrespect to the authority of the court.” Id. at 93. The Court of Appeals for the Fourth Circuit has emphasized the importance of warning the offending party of what may follow prior to dismissing the action for failure to comply with discovery obligations. Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995). A trial court has broad discretion in applying sanctions under Rule 37. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976).
Similarly, Rule 41(b) provides that a complaint may be dismissed for failure to prosecute and/or failure to comply with orders of the court. Fed.R.Civ.P. 41(b). See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (upholding dismissal of pro se plaintiff's claims and noting that pro se litigants, like other litigants, “are subject to the time requirements and respect for court orders without which effective judicial administration would be impossible”). In considering whether to dismiss an action pursuant to Rule 41(b) for failure to prosecute or comply with orders of the court, the court is required to consider four factors: (1) the degree of plaintiff's responsibility in failing to respond; (2) the amount of prejudice to the defendant; (3) the history of the plaintiff in proceeding in a dilatory manner; and (4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (citation omitted). These four factors “are not a rigid four-pronged test,” and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that “the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order” was an important factor supporting dismissal. Id. at 95-96 (citation omitted). “Courts have held that because the standard for dismissals under [Rule 37] is virtually identical to that for dismissal for failure to prosecute under [Rule 41], the [c]ourt can combine its analysis of the question whether dismissal is appropriate under both Rules.” Woods v. Wells Fargo Bank, N.A., C. A. No. 3:10-cv-3160-SVH, 2012 WL 601872, at *3 (D.S.C. Feb. 23, 2012) (citation and internal quotation marks omitted).
The undersigned agrees with the defendants that dismissal is the appropriate sanction in this case. The plaintiff appears pro se in this case and is therefore entirely responsible for her actions. She failed to provide timely responses to the defendants' discovery requests, did not appear for her deposition, and she has failed to communicate with the defendants' counsel regarding discovery. Similarly, she failed to file any response to the defendants' pending motions to dismiss despite being granted three extensions and despite being advised in the Roseboro orders (docs. 31,46) and in the undersigned's order entered on May 9, 2024, that if she failed to respond to the motions, the undersigned would recommend that the district court dismiss this action pursuant to Rule 41(b) for failure to prosecute and the dismissal would be with prejudice (doc. 51).
The plaintiff's conduct prejudices the defendants' ability to investigate the case and prepare for summary judgment motions and trial. The need for deterrence of this level of non-compliance is high, as the plaintiff has wasted the time of the defendants, defense counsel, and the court in her failure to comply with discovery and failure to respond to the pending motions to dismiss. Finally, less drastic sanctions are not available, as defense counsel has attempted to communicate with the plaintiff without success and the court has issued various warnings to the plaintiff, and she continues to ignore her obligations under the Federal Rules of Civil Procedure. Given the plaintiff's lack of compliance, there is no reason to believe she would comply with less drastic sanctions, such as directing her to pay the defendants' costs and attorney's fees. The plaintiff has previously been warned that she could be sanctioned by dismissal of her case, and she nevertheless failed to comply with the court's directives. The plaintiff has had ample opportunity to correct her behavior and preserve her right to bring suit. Indeed, this court has recognized that even with a pro se plaintiff, dismissal can be an appropriate sanction. See Brown v. Armstead, C. A. No. 9:22-cv-1017-RMG-MHC, 2023 WL 3212565, at *3 (D.S.C. Apr. 6, 2023) (recommending dismissal of pro se plaintiff's case pursuant to Rule 41(b) based on her failure to comply with the court's discovery order and Roseboro order and failure to otherwise respond to the motion to dismiss after being warned that such failure could result in dismissal), R&R adopted by 2023 WL 3203910 (D.S.C. May 2, 2023); Tucker v. Reddy Ice Corp., C. A. No. 2:22-cv-240-RMG-MHC, 2022 WL 4125649, at *2 (D.S.C. Aug. 9, 2022) (recommending pro se plaintiff's case be dismissed pursuant to Rule 37(b)(2)(A) or Rule 41(b) for failure to prosecute), R&R adopted by 2022 WL 3754733 (D.S.C. Aug. 30, 2022); James v. Nielsen Media Research, C. A. No. 6:15-cv-3052-TMC-KFM, 2016 WL 3456937, at *3 (D.S.C. Apr. 28, 2016) (recommending case be dismissed pursuant to Rules 37(d) and 41(b) based on pro se plaintiff's failure to attend his own deposition, failure to participate in discovery, failure to respond to the defendants' motion for sanctions, and overall failure to prosecute), R&R adopted by 2016 WL 3364901 (D.S.C. June 17, 2016); Tolbert v. Charter Commc'n, C. A. No. 6:10-2618-TMC-JDA, 2012 WL 1340120, at *5 (D.S.C. March 22, 2012) (recommending dismissal of case with prejudice pursuant to Rules 37(b) and 41(b) based on pro se plaintiff's “continuous and flagrant disregard of discovery requests and the authority of this [c]ourt”), R&R adopted by 2012 WL 1340364 (D.S.C. April 18, 2012).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the defendants' second amended motion to dismiss (doc. 44) should be granted, and this case should be dismissed for failure to prosecute and failure to participate in discovery pursuant to Rules 37(d) and 41(b). The Clerk of Court shall immediately mail this report to the plaintiff. If the plaintiff notifies the court within the time set forth for filing objections to this report that she wishes to continue with this case and complies with the court's prior orders, the Clerk of Court is directed to vacate this report and return this case to the undersigned for further handling. If, however, the plaintiff does not file objections or a response to the motions to dismiss, the Clerk of Court shall forward this report to the district court for disposition. Should the district court adopt this recommendation, the defendants first amended motion to dismiss (doc. 28) will be rendered moot.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).