United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
JOSEPH UNITED STATES MAGISTRATE JUDGE
Strong is a Wisconsin prisoner representing himself in this
lawsuit under 42 U.S.C. Â§ 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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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. ...