United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
plaintiff John Gruber is proceeding on claims that defendants
City of Portage, Shawn Murphy, Kenneth Manthey and Klaude
Thompson violated his constitutional rights by ticketing and
searching cars parked on or near plaintiff's business and
conducting unnecessary searches of the property. Now before
the court is defendants' motion to dismiss the case for
plaintiff's failure to comply with court orders. Dkt.
#156. In particular, defendants argue that plaintiff failed
to comply with the court's March 5, 2018 order in which I
directed plaintiff to supplement his interrogatory and
document request responses by March 19, 2018. Dkt. #137.
Defendants say that plaintiff has not supplemented his
responses at all and instead, has continued to demonstrate
uncooperative behavior. Defendants argue that dismissal is
the most appropriate sanction for plaintiff's actions.
Plaintiff did not file a response to defendants' motion.
explained below, I am denying defendants' motion because
I conclude that dismissal is not appropriate under the
circumstances. However, I will order plaintiff to supplement
his discovery responses within 10 days. If plaintiff fails to
do so or fails to explain why he cannot, I will dismiss his
Fed.R.Civ.P. 37(b)(2)(A) and (C), courts can impose sanctions
against a party that fails to comply with a discovery order.
Such sanctions may include requiring payment of costs and
fees, prohibiting the party from introducing certain evidence
or even dismissal of the case. Id. See also e360 Insight,
Inc. v. Spamhaus Project, 658 F.3d 637, 644 (7th Cir.
2011) (district court has “wide latitude in fashioning
appropriate sanctions”). In the March 5, 2018 order, I
warned plaintiff that he may be sanctioned or have his case
dismissed if he failed to supplement his discovery responses
as ordered. Dkt. #137 at 4. Plaintiff has now failed to
comply with the March 5 order. However, plaintiff's
actions are not serious enough to justify dismissal at this
stage in light of his pro se status and the lack of apparent
prejudice to defendants.
plaintiff's pro se status is not justification for his
ignoring court orders or discovery obligations, it is a
relevant consideration in determining an appropriate
sanction. Here, plaintiff's pro se status and lack of
legal experience have clearly affected his actions in this
case. Although he has failed to timely respond to several
motions filed by defendants, he has continued to be active in
the case, filing numerous motions and other documents. Some
of his filings have demonstrated his confusion about the
claims remaining at issue in this case, such as documents he
submitted relating to public records requests made by
non-parties. As I explained in the March 5 order, plaintiff
did attempt to respond to defendants' extensive discovery
requests, which included 22 interrogatories and 147 document
requests, and plaintiff submitted his initial responses only
a few days past the deadline upon which the parties had
agreed plaintiff's responses were due. Many of
plaintiff's responses were inadequate, but defendants
filed their motion to compel without first attempting to
confer with plaintiff about his responses. Although I ordered
plaintiff to supplement his answers, I declined to impose
costs or any additional sanctions on plaintiff. Since that
time, plaintiff has continued to submit documents to the
court, some which are relevant to this case and some which
are not. Thus, although plaintiff's failure to supplement
his response as ordered is unacceptable, his failure is
somewhat mitigated by his pro se status.
defendants have identified no specific prejudice they have
suffered as a result of plaintiff's failure to timely
comply with the March 5 order. Crown Life Ins. Co. v.
Craig, 995 F.2d 1376, 1382 (7th Cir. 1993) (sanctions
must “be proportionate to the circumstances surrounding
the failure[s] to comply with discovery, ” including
consideration of prejudice or inconvenience to other side).
For example, defendants do not say that they cannot
understand plaintiff's claims or that they have been
unable to prepare a defense because of plaintiff's
delayed discovery responses. They do not say that
plaintiff's failure to supplement his responses affected
their decision not to file a motion for summary judgment.
defendants deposed plaintiff on May 4, 2018, at which time
they could have presumably clarified any outstanding
discovery concerns. Of course, plaintiff is not excused from
supplementing his responses simply because he was deposed,
but the deposition potentially lessens any prejudice
defendants have suffered. Moreover, as I explained
previously, any prejudice defendants could potentially suffer
is lessened by the fact that plaintiff will be prohibited
from using at trial any evidence in his possession that would
have been responsive to defendants' discovery requests
but which he failed to provide.
defendants argue that plaintiff's failure to comply with
discovery obligations is just one of many instances in which
plaintiff has demonstrated uncooperative or dilatory behavior
throughout this case. However, several of defendants'
examples of bad behavior are not significant. For example,
defendants fault plaintiff for filing a motion to extend
discovery deadlines without first conferring with them, dkt.
#101, but defendants also filed multiple discovery motions
without first conferring with plaintiff. Dkt. ##109, 110,
127. Defendants also complain that plaintiff failed to
respond to their motion to dismiss early in the case, but as
I explained in denying defendants' motion, plaintiff was
permitted to rely on the allegations in his pleadings. Dkt.
#95 at 2. Finally, both sides have filed unwarranted motions
for sanctions in this case. Dkt. ##42, 151.
although I understand defendants' frustration in
attempting to communicate with plaintiff and obtain discovery
from him, defendants have identified no particular prejudice
they have suffered from plaintiff's failure to comply
with the March 5, 2018 order. In light of plaintiff's pro
se status, his continued participation in the case and the
lack of prejudice to defendants, I will deny defendants'
motion to dismiss the case. However, I will order plaintiff
to supplement his discovery responses as set forth in the
March 5 order within 10 days or explain in writing why he
cannot do so. I will include a copy of the March 5 order with
this order for plaintiff's reference. If plaintiff fails
to comply, I will dismiss his case as a sanction.
motion to dismiss filed by defendants City of Portage, Shawn
Murphy, Kenneth Manthey and Klaude Thompson, dkt. #156, is
Plaintiff John Gruber has until June 29, 2018 to supplement
his responses to defendants' discovery requests as set
forth in the March 5, 2018 order, dkt. #137, or explain why
he cannot do so. If he fails to do so, I will dismiss