Bound v. Guernsey County Jail

Full title: REGAN M. BOUND, Plaintiff, v. GUERNSEY COUNTY JAIL, et al., Defendants

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: May 27, 2005

Civil Action 2:03-CV-0077 (S.D. Ohio May. 27, 2005)

Opinion

Civil Action 2:03-CV-0077.

May 27, 2005

REPORT and RECOMMENDATION

NORAH KING, Magistrate Judge

Plaintiff brings this action under 42 U.S.C. § 1983, alleging that, while held in the Guernsey County Jail, he was denied medical care in violation of his rights under the Fourteenth Amendment.¹ This matter is currently before the Court on the motion of the Guernsey County Defendants to dismiss for failure to prosecute, Doc. No. 41, the motion of Defendant Kelly Sprout, M.D. [hereinafter "Defendant Sprout"] to dismiss for failure to serve, Doc. No. 42, and the motion of Defendant Barbara St. Clair [hereinafter "Defendant St. Clair"] to dismiss for failure to prosecute, Doc. No. 42.

1 Since the initiation of this action, Plaintiff has apparently been released from custody.

I. Background

On September 29, 2004, Defendants filed their motions to dismiss. Plaintiff made no response and, on November 10, 2004, this Court advised Plaintiff of the filing of the motions and warned Plaintiff that the motions would likely be granted unless he responded by November 30, 2004. Order, Doc. No. 43. On November 30, 2004, Plaintiff responded to Defendants' motions to dismiss, arguing that Defendants had failed to properly serve a copy of the motions on Plaintiff. Doc. No. 44. Upon further review, Defendants Sprout and St. Clair discovered that their motion to dismiss had indeed not been served on Plaintiff. Although mailed to the most recent address provided by Plaintiff, see Doc. No. 37, their motion, Doc. No. 42, had been returned to their counsel with a "RTS (Return to Sender)" sticker affixed to the envelope. Exhibit B, attached to Doc. No. 45. There was no evidence that the motion of the Guernsey County Defendants had not been properly served, however. Nevertheless, on April 25, 2005, this Court directed the Clerk to mail a copy of both motions, Doc. Nos. 41 and 42, to Plaintiff. Order (April 25, 2005), p. 2, Doc. No. 47. Plaintiff was granted 20 days to respond to these motions. Id. On May 18, 2005, Plaintiff again responded that Defendants' motions to dismiss should be denied because Defendants failed to properly serve a copy of the motions on him.²

2 In fact, Plaintiff's May 18, 2005, response is almost identical to that dated November 30, 2004. The Court notes, however, that Plaintiff's May 18, 2005, response reflects yet a new address for Plaintiff.

II. Motion to Dismiss for Failure to Timely Effect Service of Process

Defendant Sprout has filed a motion to dismiss for failure to timely effect service of process on her. Rule 4(m) of the Federal Rules of Civil Procedure provides as follows:

Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. . . .

On September 17, 2003, Defendant Sprout was joined as a defendant in this action and the United States Marshal Service was ordered to effect service on this defendant.³ Plaintiff has attempted to serve process on Defendant Sprout on several occasions. The initial Marshal service form provided by Plaintiff directed that Defendant Sprout be served at "Six Counties, Inc.," 2845 Bell Street, Zanesville, Ohio. Service was accepted on Defendant Sprout's behalf by clerical personnel at Six County, Affidavit of John Creek, at ¶ 4, attached to Motion of Dr. Sprout to Quash Service, even though Defendant Sprout was no longer employed there. Affidavit of John Creek, at ¶ 2. Defendant Sprout filed a motion to quash this service, Doc. No. 27, which was granted by this Court, Doc. No. 32. Because Defendant Sprout was not employed by Six County at the time of service, that agency's acceptance of service on Defendant Sprout's behalf was not effective. This Court granted Plaintiff an additional 30 days to provide information sufficient to allow the United States Marshal Service to effect service of process on Defendant Sprout. Plaintiff prepared a new summons, and process was thereafter served on a person named Kelly Sprout, Doc. No. 36, who is not Defendant Sprout. Affidavit of Kelly Sprout, M.D., attached to Motion to Quash, Doc. No. 38. A second motion to quash was filed on June 25, 2004. Doc. No. 38. The motion was unopposed and was granted by this Court. Doc. No. 40.

3 Defendant Sprout was not named as a defendant in Plaintiff's original complaint. She was joined as a defendant only with the filing of the amended complaint on September 17, 2003.

More than 120 days have passed and Plaintiff has not completed service on Defendant Sprout. Indeed, Plaintiff offers no basis for believing that he would be able to effect service of process on this Defendant should he be allowed more time to do so. Therefore, Plaintiff's claims against Defendant Sprout must be dismissed for lack of timely service of process.

III. Motion to Dismiss for Failure to Prosecute

A. Standard

Rule 41(b) of the Federal Rules of Civil Procedure provides: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." In determining whether dismissal of an action is an appropriate discovery sanction, the Court must consider

(1) whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault;

(2) whether the adversary was prejudiced by the . . . party's failure to cooperate in discovery;

(3) whether the . . . party was warned that failure to cooperate would lead to dismissal; and

(4) whether less drastic sanctions were imposed or considered before dismissal was ordered.

Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67 (6^th Cir.), cert. denied 522 U.S. 868 (1997). Although no one of the Harmon factors is dispositive, "it is said that a case is properly dismissed by the district court where there is a clear record of delay or contumacious conduct." Oleoproteinas Del Sureste, S.A. v. The French Oil Mill Machinery Co., 202 F.R.D. 541, 545 (S.D. Ohio 2000) (citing Carter v. City of Memphis, 636 F.2d 159, 161 (6^th Cir. 1980). "Dismissal of an action is a harsh sanction which the court should order only in extreme situations where there is a showing of a clear record of delay or contumacious conduct by the plaintiff." Little v. Yeutter, 984 F.2d 160, 162 (6^th Cir. 1993). See also Pearce v. Apfel, 205 F.3d 1341, 1343 (6^th Cir. 2000); Buck v. U.S. Dept. of Agriculture, Farmers Home Admin., 960 F.2d 603, 608 (6^th Cir. 1992) (dismissal is appropriate only if the party's "dilatory actions amounted to failure to prosecute and no alternative sanction would protect the integrity of pre-trial procedures.").

B. Application

1. Factual Background

The Guernsey County Defendants and Defendant St. Clair [hereinafter "Defendants"] allege that Plaintiff has failed to prosecute this action. Defendants' motions to dismiss were prompted by both Plaintiff's failure to attend his properly noticed deposition and his failure to respond to Defendants' discovery requests.

On June 7, 2004, counsel for the Guernsey County Defendants sent correspondence to Plaintiff seeking a date upon which Plaintiff's deposition could be taken. Exhibit A attached to Guernsey County Defendants' Motion to Dismiss, Doc. No. 41. On July 6, 2004, after receiving no response from Plaintiff, Plaintiff was notified in writing that his deposition would proceed on August 10, 2004. Exhibit B attached to Guernsey County Defendants' Motion to Dismiss, Doc. No. 41. Plaintiff failed to attend this deposition. See Attempted Deposition Transcript, attached as Exhibit C to Guernsey County Defendants' Motion to Dismiss. On August 13, 2004, the Guernsey County Defendants served Plaintiff with written discovery requests. Exhibit E attached to Guernsey County Defendants' Reply to Plaintiff's Response to Defendants' Motion to Dismiss. There is no indication that Plaintiff has either responded to these discovery requests or sought an extension of time to respond.

Despite being granted a number of opportunities to make a substantive response to Defendants' motions to dismiss, Plaintiff argues merely that the motions should be denied because Defendants failed to properly serve a copy of the motions on Plaintiff. However, it would appear that Plaintiff was provided a copy of the motions at least pursuant to this Court's order. Doc. No. 47. Plaintiff has offered no explanation for his failure to respond to either the motions or the Defendants' discovery requests.

2. Application of Harmon Factors

The first factor identified by the Sixth Circuit in Harmon is whether the party's failure to prosecute is due to willfulness, bad faith or fault. Plaintiff bears the burden of showing that his failure to comply with Defendants' discovery requests was due to some inability on his part. See United States v. Reyes, 458 F.3d 451, 458 (6^th Cir. 2002). In this case, Plaintiff has made no such showing.

The second Harmon factor is whether the party seeking dismissal has been prejudiced by the other party's failure to prosecute. There is no doubt that Defendants have been prejudiced by Plaintiff's repeated failure to cooperate in discovery. Defendants have expended time, money and effort in pursuit of discovery that Plaintiff was legally obligated to provide. Defendants have been unable to complete discovery due to Plaintiff's failure to cooperate in the litigation that he initiated. Moreover, the litigation has been pending for over two years. Plaintiff's failure to participate in the discovery process has unquestionably been prejudicial to Defendants.

The third Harmon factor requires this Court to consider whether Plaintiff has been previously warned that his failure to cooperate could lead to dismissal. A pre-dismissal warning for failure to comply with a court's order is pivotal to a determination of willfulness. Maldonado v. Thomas M. Cooley Law School, 2003 WL 21130032, *3 (6^th Cir. 2003). In this Court's April 25, 2005 Order, Plaintiff was warned that his failure to respond to Defendants' motions to dismiss could lead to dismissal of his suit. Order, p. 2 (April 25, 2005), Doc. No. 47. Furthermore, Plaintiff was granted an additional 20 days to respond to Defendants' motions. Id. Nevertheless, Plaintiff has failed to file a substantive response to the motions or to otherwise explain his failure to prosecute the case.

The fourth Harmon factor requires this Court to consider whether sanctions less drastic than dismissal with prejudice might be appropriate. This Court concludes that a lesser sanction would be ineffectual under the circumstances of this case. Plaintiff filed this action in forma pauperis, Doc. Nos. 1, 2; it is therefore unlikely that an award of attorney's fees would remedy the prejudice that Defendants suffered as a result of Plaintiff's failure to attend his scheduled deposition. Moreover, there is no indication that any lesser sanction would guarantee future cooperation by the Plaintiff in this litigation. Plaintiff's persistent refusal to participate in the discovery process warrants dismissal of the suit rather than a lesser sanction. "This circuit has determined that where dismissal is the sanction of last resort, a district court does not abuse its discretion by dismissing a case so long as dismissal is supported by the facts." Sexton v. Uniroyal Chemical Company, Inc., R.T., 62 Fed. Appx. 615, 620 (6^th Cir. 2003).

It is undisputed that Plaintiff has failed to meet his discovery obligations to Defendants and this Court. He offers no explanation for his failure to attend his scheduled deposition or to comply with Defendants' discovery requests, nor does he make any attempt to substantively respond to Defendants' motions to dismiss. In sum, consideration of all four factors identified by the Sixth Circuit in Harmon warrants dismissal of this case with prejudice. Under the circumstances presented in this case, the Court concludes that dismissal of the action is warranted.

It is RECOMMENDED that Defendant Sprout's motion to dismiss for failure to make timely service of process be GRANTED. It is also RECOMMENDED that the motions to dismiss for failure to prosecute, Doc. Nos. 41, 42, be likewise GRANTED.

If any party seeks reconsideration of this REPORT and RECOMMENDATION, that party may, within ten (10) days, file and serve on all parties a motion for reconsideration by the Court, specifically designating this REPORT and RECOMMENDATION, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Responses and objections must be filed within ten (10) days after being served with a copy hereof. Fed.R.Civ.P. 72(b).

The parties are specifically advised that failure to object to the REPORT and RECOMMENDATION will result in a waiver of the right to initial de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the REPORT and RECOMMENDATION. See Thomas v. Arn, 474 U.S. 140 (1985); Harris v. City of Akron, 20 F.3d 1396 (6^th Cir. 1994); Smith v. Detroit Federation of Teachers, Local 231, American Federation of Teachers, AFL-CIO, 829 F.2d 1370 (6^th Cir. 1987).

The Clerk shall mail a copy of this REPORT and RECOMMENDATION to Plaintiff at the address on the docket as well as the address reflected in Doc. No. 48.