Opinion
NO. 3-02-CV-1263-D
October 9, 2002
FINDINGS AND RECOMMENDATION OF TILE UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin Reid Althouse, appearing pro se, has sued Dallas County District Attorney Bill Hill and others for civil rights violations under 42 U.S.C. § 1983. For the reasons stated herein, the case should be dismissed with prejudice.
I.
This lawsuit arises out of another case brought by plaintiff alleging that he received inadequate medical care for a bipolar disorder while incarcerated in the Dallas County Jail. That case was dismissed on summary judgment. Althouse v. Dallas County Jail Medical Dep't, 2002 WL 1398555 (N.D. Tex. Jun. 26, 2002). Plaintiff now contends that he was prematurely transferred to the TDCJ-ID in retaliation for filing grievances related to the prior lawsuit and that his medical records were altered to remove any reference to his mental illness. As a result, plaintiff claims he did not receive proper medical care after his transfer to the Texas prison system. Plaintiff also suspects that other jail records may have been altered or destroyed. He asked the Dallas County District Attorney to investigate the matter, but no action was taken. By this suit, plaintiff seeks $300,000 in damages and declaratory relief for the violation of his civil rights.
On June 20, 2002, the magistrate judge recommended that all of plaintiff's claims be summarily dismissed as either time-barred or frivolous under 28 U.S.C. § 1915(e)(2). Plaintiff objected to this recommendation. The district judge agreed that plaintiff had failed to state a due process violation based on the destruction of his jail records or the district attorney's refusal to investigate his complaints, but was "not persuaded that plaintiff's claims for retaliation and alteration of his medical records are so clearly time-barred that they should be dismissed as frivolous at the screening stage." Althouse v. Hill, 2002 WL 1750794 at *1 (N.D. Tex. Jul. 25, 2002). The case was re-referred to the magistrate judge for recommendation as to whom summonses should issue. In his order of re-reference, the district judge specifically authorized the magistrate judge to "issue interrogatories or convene a Spears-type hearing" if necessary to make this recommendation. Id.
Consistent with these instructions, the magistrate judge sent a Spears questionnaire to plaintiff on August 15, 2002. Plaintiff was warned that the failure to answer the questionnaire within 20 days "may result in the dismissal of the complaint . . . pursuant to Fed.R.Civ.P. 41(b)." Spears Quest. at 1. By letter dated August 17, 2002, plaintiff objected that the questionnaire was "coercive" and "intimidating." The magistrate judge overruled this objection on August 23, 2002. Plaintiff appealed to the district judge, who affirmed the magistrate judge's order on September 6, 2002. As of September 16, 2002, plaintiff still had not answered the questionnaire. Instead of recommending dismissal, the magistrate judge sua sponte extended the deadline for answering the questionnaire until September 27, 2002. ORDER, 9/16/02. This time, plaintiff was admonished that the failure to provide full and complete answers by that date would result in a recommendation "that this case be dismissed with prejudice." Id. (emphasis in original). On September 18, 2002, plaintiff appealed the interlocutory order overruling his objections to the Spears questionnaire to the Fifth Circuit. The district judge has recently certified that this appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3) FED. R. App. P. 24(a).
The Spears questionnaire seeks information regarding the identity and involvement of each defendant allegedly responsible for plaintiff's premature transfer to the TDCJ-ID and the alteration of his medical records.
In his order, the magistrate judge noted that an appeal of a non-dispositive ruling to the district court does not stay enforcement of a magistrate judge's order. See ORDER, 9/16/02, citing Esparza v. Bridgestone/Firestone, Inc., 200 F.R.D. 654, 656 (D. Cob. 2001) and Litton Industries, Inc. v. Lehman Bros. Kuhn Loeb, Inc., 124 F.R.D. 75, 79 (S.D.N.Y. 1989). Nevertheless, the magistrate judge extended this deadline "[i]n the interests of justice." Id.
To date, plaintiff still has not answered the Spears questionnaire. As a result, the case should be dismissed with prejudice.
II.
A district court has authority to dismiss a case for want of prosecution or failure to comply with a court order. FED. R. Civ. P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
At the direction of the district judge, the magistrate judge sent a Spears questionnaire to plaintiff in order to ascertain the identity and involvement of each defendant allegedly responsible for his premature transfer to the TDCJ-ID and the alteration of his medical records. This questionnaire was mailed to plaintiff nearly two months ago. Instead of answering the two simple interrogatories propounded by the court, plaintiff has filed frivolous objections and appeals. He has ignored two court orders requiring him to answer the Spears questionnaire by a date certain. In its latest order, the court warned plaintiff that the case would be dismissed with prejudice if the questionnaire was not answered by September 27, 2002.
The inability to proceed with this litigation is directly attributable to plaintiff's failure to answer the Spears questionnaire. Without the information requested, process cannot be issued to the defendants. The court has considered and ruled on plaintiff's objections to the questionnaire and even extended the deadline for answering the interrogatories on its own motion. Under these circumstances, the only appropriate sanctions is a dismissal with prejudice. See Stiles v. GTE Southwest, 1997 WL 21387 at *3 (N.D. Tex. Jan. 9, 1997), appeal dism'd, 127 F.3d 33 (5th Cir. 1997) (dismissal with prejudice warranted where pro se litigant failed to appear at Spears hearing that had been rescheduled three times at her request).
RECOMMENDATION
This case should be dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.