Opinion
C/A No.: 1:19-901-SAL-SVH
07-07-2020
Sabrena Paige, Plaintiff, v. Matthew Barnwell; Aiken Department of Public Safety; and City of Aiken, Defendants.
REPORT AND RECOMMENDATION
Sabrena Paige ("Plaintiff"), proceeding pro se, filed this case alleging civil rights violations by Matthew Barnwell, Aiken Department of Public Safety, and City of Aiken ("Defendants"). [ECF No. 1-1]. This matter comes before the court on Defendants' motion to dismiss. [ECF No. 35]. As Plaintiff is proceeding pro se, the court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), notifying her of the dismissal procedures and possible consequences if she failed to adequately respond to the motion to dismiss. [ECF No. 36]. Plaintiff failed to file a response to the motion. I. Factual and Procedural Background
Plaintiff was previously represented by counsel, but counsel's motion to withdraw as counsel was granted on December 10, 2019. [ECF No. 21].
The motion is titled as a motion for sanctions, but Defendants argue "Plaintiff's behavior with regards to discovery in this matter is so egregious that no sanction less drastic than dismissal, with prejudice, of this action would suffice." [ECF No. 35 at 2].
While Plaintiff was represented by counsel, Defendants served written discovery requests on her counsel. After Plaintiff failed to timely respond to the written discovery, Defendants filed a motion to compel, which the undersigned granted. [ECF Nos. 11, 12]. During Plaintiff's first deposition on October 24, 2019, she provided numerous evasive and/or non-responsive answers to questions posed. [ECF No. 35-8]. Following a break in the deposition to allow Plaintiff's attorney to counsel her, the parties decided to continue the deposition to a later date. Id. Subsequently, on November 13, 2019, Plaintiff's attorney moved to be relieved as counsel of record in this matter, which motion was granted on December 10, 2019. [ECF No. 21].
For example, when asked why an individual who was a witness to the events giving rise to the complaint was not listed as a witness in Plaintiff's written discovery responses, Plaintiff continued to argue that she did not have to identify anyone that she did not wish to name in her lawsuit. [ECF No. 35-8 at 5-7].
A week prior to the court's order relieving Plaintiff's counsel, Plaintiff delivered to the Clerk of Court a large collection of documents that were not accompanied by a motion and or a written explanation of their relevance to the case. [ECF No. 19]. The court instructed the Clerk to mail the materials to Plaintiff without filing them, as she was still represented by counsel. Id. However, acknowledging that her counsel's motion to withdraw was pending, the court also warned Plaintiff:
Plaintiff is advised that if Mr. Phillips' motion to withdraw is granted and she elects to proceed without an attorney to represent her interests, the court will expect this litigation to be conducted in accordance with all provisions of the Federal Rules of Civil Procedure and that the court is unable to provide her with legal advice. Specifically, Plaintiff should be aware that discovery should not be filed with the court. The court will not consider discovery filed without an appropriate motion, and if discovery material is attached as support for a motion or a response to a motion, the motion or response shall specify with particularity the portion of the discovery relied upon. See Local Civ. R. 7.06. (D.S.C.) Plaintiff is directed to consult the Pro Se Guide available on the District Court's website at www.scd.uscourts.gov under the "pro se" tab. Failure to comply with court rules could have serious consequences including, but not limited to striking a pleading and/or dismissal of this action.[ECF No. 19].
After Plaintiff's counsel was relieved, Defendants continued attempting to obtain full and complete discovery responses to written discovery, including last known addresses for all witnesses and a copy of the documents she brought to and referred to during her first deposition. [ECF No. 35-3]. Plaintiff continued to provide incomplete responses. Id. Despite Plaintiff's failure to provide complete responses, Plaintiff's deposition was scheduled for March 17, 2020.
During her March 17, 2020 deposition, Plaintiff refused to answer defense counsel's questions in any meaningful way. [ECF Nos. 35-1, 35-2]. Near the end of the deposition Plaintiff began yelling, using profanity, and violently slamming her hands on the table. Id. During her tirade, Plaintiff yelled over defense counsel as he attempted to ask questions and to make a record of the events as they were transpiring. Id.
Even after Plaintiff left the deposition, Plaintiff could be heard on the video of the deposition continuing to yell, resulting in a worker inside City of Aiken's municipal building calling Public Safety to respond to the situation. [ECF Nos. 35-1; 35-9]. Furthermore, Plaintiff broadcasted on Facebook Live her profanity-laced tirade from the front entrance to the City of Aiken's Municipal Building. [ECF No. 35-4]. Plaintiff also made postings on her Facebook page specific to the deposition in question, which, when taken in context with other postings made by Plaintiff, appear to be an attempt at intimidation and are threatening in nature. [ECF No. 35-5].
Defendants filed their motion for sanctions on March 25, 2020. On April 27, 2020, the court permitted Plaintiff an additional 30 days, until May 27, 2020, to respond to the motion. [ECF No. 39]. Having received no response from Plaintiff, on June 3, 2020, the court issued an order directing Plaintiff to advise the court by June 17, 2020, whether she wished to continue with her case and file a response to the motion. [ECF No. 41]. The order further warned that if she failed to respond, her case may be dismissed for failure to prosecute. On June 15, 2020, Plaintiff filed a letter that appeared to be to defense counsel and purported to provide paperwork she received on May 5, 2020, although no paperwork was included. [ECF No. 43]. On June 24, 2020, the court issued a text order stating:
After multiple warnings regarding potential dismissal, Plaintiff has not provided a substantive response to Defendants' motion. On June 15, 2020, she filed a letter that appears to be a cover letter serving Defendants with documents. The letter does not substantively address Defendants' allegations of multiple instances of her failing to comply with the Federal Rules of Civil Procedure. Defendants are directed to file by July 1, 2020, a status of discovery in this case and to provide a list of costs and expenses incurred as a result of Plaintiffs failure to comply with discovery. Based on the record currently before the court, in the event Plaintiff is permitted to proceed with this case, the undersigned is considering, at a minimum, requiring Plaintiff pay all costs associated with reconvening her deposition.[ECF No. 44]. On July 1, 2020 the Clerk of Court received a package of documents from Plaintiff that appeared to be discovery, but contained no brief or memorandum responsive to Defendants' motion. [ECF No. 46]. As Plaintiff had previously been advised that discovery is to be served on opposing counsel and not filed with the court, the court directed the Clerk to return the documents to Plaintiff. II. Discussion
A. Standard on Motion to Dismiss pursuant to Fed. R. Civ. P. 37
Rule 37 of the Federal Rules of Civil Procedure defines the sanctions a court may levy on a party who refuses to cooperate in discovery. Pursuant to Rule 37(b), a district court may impose sanctions, including dismissal of claims, for a party's failure to comply with the court's discovery orders. Fed. R. Civ. P. 37(b)(2)(A); see also Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642 (1976) (per curiam) (stating that the question on appeal is whether the district court abused its discretion by dismissing the action pursuant to Rule 37, "not whether this Court, or whether the Court of Appeals, would as an original matter have dismissed the action"); Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995) ("[T]he express terms of Rule 37 permit a trial court to impose sanctions when 'a party fails to obey an order to provide or permit discovery.'" (quoting Fed. R. Civ. P. 37(b)(2))). "While the imposition of sanctions under Rule 37(b) lies within the trial court's discretion, '[i]t is not . . . a discretion without bounds or limits.'" Hathcock, 53 F.3d at 40 (quoting Wilson v. Volkswagen of Am., 561 F.2d 494, 503 (4th Cir. 1977)). Likewise, Rule 37(d) provides that a court may order sanctions, including dismissal, if a party, after being properly served with interrogatories or requests for production fails to serve its answers, objections, or written response." Fed. R. Civ. P. 37(d)(1)(A), (d)(3). With the sanction of dismissal, "the 'range of discretion is more narrow' than when a court imposes less severe sanctions." Id. (quoting Wilson, 561 F.2d at 503).
Dismissal of a party's case for failure to comply with a court order or a discovery request "is a severe sanction which must be exercised with restraint, caution and discretion." Zaczek v. Fauquier Cty. Va., 764 F. Supp 1071, 1077 (E.D. Va. 1991) (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)). 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." Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 93 (4th Cir. 1992); see Wilson, 561 F.2d at 499-516. A court must consider four factors to determine whether the offending party's conduct demonstrates such a pattern and disrespect for the court. See Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92. Specifically, a court must consider:
(1) whether the noncomplying 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.Id. (citing Wilson, 561 F.2d at 503-06).
In addition, the Fourth Circuit has emphasized the significance of providing a party with a clear warning regarding the possibility of dismissal before entering such a sanction. Hathcock, 53 F.3d at 40. While a district court may dismiss a party's case for noncompliance with the court's discovery order where the party's action constitutes "flagrant bad faith" and "callous disregard" of his responsibilities, Nat'l Hockey League, 427 U.S. at 643, the Fourth Circuit has held the dismissal power should be exercised only when the record clearly reflects delay or contumacious conduct by the plaintiff, Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978) (citations omitted).
B. Analysis
Plaintiff has acted in bad faith in failing to comply with Defendant's discovery requests and failing to cooperate in her deposition. The following excerpts from her deposition demonstrate her failure to participate meaningfully in discovery:
A Yeah.Plaintiff refused to answer the most basic questions:
Q All right. When we -- and it's on the video from the last deposition. You had a -- a file of documents. Do you -- do you not still have that file of documents?
A No, I don't.
Q What'd you do with it?
A You tell me.
Q All right. Ma'am, I need you to answer the question that I've asked, which is, what --
A Why you worried about what --
Q -- did you --
A -- where my paperwork at?
Q -- do with the documents?
A I mean, why you worried about it? It's something in there you scared for? What's in it that you want? I don't have the paperwork.
Q What did you do with those documents, ma'am?
A It's none of your business what I did with them.
Q Are you refusing to answer my question?
A No, I'm not. It's none of your business.
Q That's a refusal to answer the question.
A No, it's not.
Q Do you know the answer to my question?
A No, I don't.
Q You don't know what you did with the documents?
Q When did you move?In addition, the court has viewed the video of the deposition and finds that Plaintiff's failure to participate was in bad faith. At one point, Plaintiff began beating on the table forcefully and cursing at Defendants' counsel in a threatening manner. See ECF No. 35-1 at 17:17.
A Why? It was a couple of months ago. Why?
Q All right, a couple months ago, meaning when? Was it in 2020 or was it still 2019?
A '20.
Q All right, so January of '20?
A Uh-huh (affirmative).
Q All right, where did you move to?
A Why? Why is all these questions -- what -- you -- you trying to send your dogs after me?
Q Where did you move to, ma'am?
A Public Safety, ask them.
Q Where did you move to, ma'am?
A You tell me.
Q Is it your intention to continue to refuse to answer my questions here today?
A I'm not refusing nothing. You getting on my nerves.
Q Is it your intention to continue to refuse to answer my questions here today?
A I'm not refusing nothing. I am talking, ain't it?
Q Because my intention will he to file a motion for sanctions against you, which I have no doubt will be granted based on your behavior here today.
A Ain't no behavior. You trying to pressure me.
Q Sanctions could include up to dismissal of your
Further, Defendants have been prejudiced by Plaintiff's non-compliance, having sent multiple discovery requests and paying for and attending two depositions, both of which ended before completion after Plaintiff failed to answer simple questions. Defense counsel has not had an opportunity to discover the most basic material evidence, as Plaintiff has failed to comply with the most basic discovery requests, such as identifying witnesses and their last known contact information. The need for deterrence of this level of non-compliance is high, as Plaintiff has wasted the time of Defendants, defense counsel, and the court in her failure to comply with discovery in any way. Finally, less drastic sanctions are not available, as defense counsel has sought several different methods of discovery from Plaintiff and the court has issued various warnings to Plaintiff, and she continues to ignore her obligations under the Federal Rules of Civil Procedure. Given Plaintiff's lack of compliance, there is no reason to believe she would comply with less drastic sanctions, such as directing her to pay Defendants' costs and attorneys' fees associated with attempting to obtain the discovery from her. Plaintiff has previously been warned that she could be sanctioned by dismissal [ECF Nos. 19, 36, 41], and she nevertheless failed to comply with the court's directives.
Based on Plaintiff's blatant bad faith in failing to respond to Defendants' discovery responses and her behavior and refusal to cooperate in both of her depositions, the undersigned recommends Defendants' motion to dismiss be granted pursuant to Fed. R. Civ. P. 37. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Defendants' motion to dismiss be granted. In the alternative, if the district judge believes less drastic sanctions are warranted, the undersigned recommends: (1) Plaintiff be directed to provide full and complete discovery responses, and answer all questions in a deposition, that she pays for in advanced; (2) Plaintiff be held responsible for Defendants' costs and attorneys fees associated with obtaining discovery; and (3) Plaintiff be advised that failure to strictly comply with the court's orders on this matter, including timely payment of fees and costs assessed, will result in a dismissal of this action.
IT IS SO RECOMMENDED. July 7, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).