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Strong v. Wilson

United States District Court, E.D. Wisconsin

November 18, 2019

DENNIS STRONG, Plaintiff,
v.
LANCE L. WILSON, et al. Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Dennis Strong is a Wisconsin prisoner representing himself in this lawsuit under 42 U.S.C. § 1983. He alleges that the defendants violated his civil rights. (ECF No. 1.) The defendants have filed a motion to dismiss for failure to prosecute. For the reasons stated below, I recommend that defendants' motion to dismiss be granted.

         PROCEDURAL HISTORY

         The court screened the complaint on February 20, 2018, and allowed Strong to proceed on a First Amendment retaliation claim. (ECF No. 5.) Once the defendants answered, the court issued a scheduling order, setting the deadline for discovery for January 21, 2019. (ECF No. 19.) In the scheduling order, the court advised Strong “that failure to make a timely submission or otherwise comply with the court's orders may result in the dismissal of the case for failure to prosecute.” Id. at ¶4.

         At the time, Lance Wilson was the only defendant in this matter and began conducting discovery. On November 19, 2018, he sent Strong medical authorization forms, requesting Strong to sign and return them. (ECF No. 32 at 2.) Strong did not respond to the request. Id. The defendant sent two more requests for the authorization forms on February 8 and February 27, 2019, and Strong did not respond. Id.

         Also, on December 19, 2018, the defendant sent a notice to appear for a deposition on January 9, 2019 at the Racine Correctional Institution (where Strong was incarcerated). Id. The defendant heard nothing so made arrangements with staff at RCI and hired a court reporter. Id. However, when the time came for the deposition, Strong refused to leave his cell and attend. Id.

         Additionally, Strong refused to adequately respond to written discovery requests. Id. The defendant served his First Set of Written Interrogatories and Requests for Production of Documents on November 27, 2018. Id. at 3. For months, Strong did not respond. Then, on January 4, 2019, Strong filed a motion entitled “Motion to hold Scheduling Order and/or Discovery in Abeyance” wherein he explained that he was having difficulty participating in discovery and described his limited access to his legal materials due to a transfer from Red Granite Correctional Institution to RCI. (ECF No. 20 at 3-4.) He also essentially asked for a stay of the discovery deadline and requested a hearing. Id. at 5. The defendant filed a letter to the court in response outlining the above-mentioned discovery issues and echoing the request for a status conference. ECF No. 21 at 1.

         Accordingly, the court held a status conference on March 19, 2019. During the hearing, Strong informed the court that he was in the process of hiring a lawyer to help him with his discovery issues, which is why he requested a stay of the deadline. ECF No. 24 at 1. The defendant again relayed how Strong was refusing to cooperate with discovery and initially opposed a stay of the discovery deadline. Id. However the defendant ultimately agreed to an extension of the discovery and dispositive motions deadlines. Id. The defendant also requested the court order Strong to fully participate in discovery. Id. In an oral order, the court ordered Strong to fully participate in discovery and that no later than April 12, 2019, Strong needed to sign the medical authorizations and provide the defendant with completed discovery. Id. The court also set up a follow-up status conference for April 30, 2019. Id.

         At the hearing on April 30, the defendant reported that Strong still had not provided a signed medical authorization nor responded to discovery. (Audio Recording of Motion Hearing of April 30, 2019 at 9:37:43-9:38:14, Strong v. Wilson, 18-cv-273-pp-nj.) Strong explained that he had an issue with providing his social security number on the medical authorizations, and the court asked whether he discussed the concerns with the defendant's lawyer, to which Strong responded he had not. Id. at 9:38:15-9:41:09. Strong asked whether the defendant could obtain the medical records without providing his social security number, and the defendant's counsel explained that the social security number was required by the medical providers to obtain the medical records. Id. The court explained that the medical records were necessary to keep the case moving forward and, while it would not compel Strong to provide the medical authorizations, if he chose not to provide them, or otherwise refused to participate in discovery, it indicates to the court that Strong no longer wishes to prosecute the case-which would result in a dismissal. Id. at 9:41:38-9:41:47; 9:44:20-9:44:47; 9:45:00-9:45:10. The court then ordered Strong to produce the medical authorizations by May 10, 2019 if he wished to continue with his case. Id. at 9:41:38-9:41:47. Strong then asked whether the defendant would be interested in settling the case, and the defendant responded that without discovery, the defendant could not have settlement talks. Id. at 9:49:30-9:50:10; 9:51:35-9:52:04. The defendant then stated that Strong had yet to respond to written discovery requests. Id. at 9:53:40-9:54:25. The court warned Strong that if he failed to respond to discovery, his case would be dismissed. Id. at 9:54:26-9:54:46. The court then ordered Strong to answer the written discovery requests by May 10, 2019. Id. at 9:56:11-9:56:17. The court also granted Strong's oral motion to amend the complaint (ECF No. 23), giving him until May 17, 2019 to file amended pleadings. Id. at 10:00:12-10:02:12.

         After the hearing, the court issued an amended scheduling order extending the discovery deadline to July 12, 2019 and the dispositive motion deadline to August 21, 2019. ECF No. 27. The amended scheduling order once again warned Strong “that failure to make a timely submission or otherwise comply with the court's orders may result in the dismissal of the case for failure to prosecute.” Id. at ¶3.

         Strong filed an amended complaint on May 5, 2019, adding seven additional parties. The defendants answered on May 30, 2019, ECF No. 30, and then filed the motion to dismiss currently at issue on June 17, 2019. ECF No. 31.[1] In the brief supporting their motion to dismiss, the defendants state that Strong, as of June 17, still had not provided the medical authorizations. ECF No. 32 at 4. And while Strong did submit responses to the defendants' written discovery requests, he answered every single interrogatory and request for production of documents the same way:

DUE TO THE PLAINTIFF'S CHRONIC MENTAL HEALTH ISSUES AND SHORTCOMINGS THEREFROM, THE PLAINTIFF LACKS THE CAPACITY TO PROVIDE A MEANINGFUL ANSWER TO THE ABOVE.

Id. at 3. The defendants argue that this is functionally a non-response.

         In response to the defendants' motion to dismiss, Strong filed a motion for sanctions, ECF No. 35, and a motion entitled “Motion for Extension of Time, Motion for Relief from the E-Filing Project.” ECF No. 40. In his motion for sanctions, Strong explained his reason for not providing the medical authorizations, stating that he “made the judgment call to not effectuate what is deemed to be an unlawful authorization form.” ECF No. 35 at 4. Strong argued that the form, in requiring his social security number, violates the law; however, he does not explain how. Id. He stated that he tried to talk to defendants' counsel about his concerns, but his concerns “fell on deaf ears.” Id. ...


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