United States District Court, E.D. Wisconsin
ORDER ADOPTING JUDGE JOSEPH'S REPORT AND
RECOMMENDATION (DKT. NO. 43), DENYING PLAINTIFF'S MOTION
FOR EXTENSION OF TIME AND MOTION FOR RELIEF FROM THE E-FILING
PROJECT (DKT. NO. 40), DENYING PLAINTIFF'S MOTION FOR
SANCTIONS (DKT. NO. 35), GRANTING DEFENDANTS' MOTION TO
DISMISS FOR FAILURE TO PROSECUTE (DKT. NO. 31) AND DISMISSING
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
past two and a half years, plaintiff Dennis Strong has filed
nine cases in this court. All but two have been dismissed; in
one, Strong v Wisconsin Public Defender, et al., 17-cv-1714,
he incurred a “strike” under 28 U.S.C.
plaintiff filed this complaint on February 14, 2018. Dkt. No.
1. The court allowed the plaintiff to proceed on a First
Amendment retaliation claim against defendant Wilson, based
on his allegations that Wilson retaliated against him for
complaining about Wilson's alleged sexual harassment.
Dkt. No. 12 at 7.
defendant Wilson filed his answer to the complaint, the court
issued a scheduling order, requiring the parties to complete
discovery by January 21, 2019. Dkt. No. 19. Four days before
that deadline, the court received a motion from the
plaintiff, asking to hold the scheduling order and discovery
in abeyance, on the ground that he'd been diagnosed with
a mental health problem. Dkt. No. 20. The plaintiff also
indicated that he'd been transferred from one facility to
another and that it had taken time for him to receive his
property, including his legal materials. Id. at 3-4.
Defendant Wilson responded by advising the court that he had
noticed the plaintiff's deposition for January 9, 2019,
and the plaintiff had not objected. Dkt. No. 21. The
defendant had scheduled a court reporter and coordinated with
the prison for the deposition. Id. at 1. When
counsel arrived for the deposition, however, the plaintiff
had refused to leave his cell. Id. The defendant
pointed out that the plaintiff's motion had not asked to
reschedule the deposition. Id. The defendant
indicated that he didn't object to staying discovery but
emphasized that he wanted the opportunity to reschedule the
plaintiff's deposition. Id. at 1-2.
Judge Nancy Joseph held a telephone status conference on
March 19, 2019. Dkt. No. 23. She denied the motion to stay
discovery, ordered the plaintiff to fully participate in the
discovery process, and ordered the plaintiff to provide the
defendant with discovery and to sign medical releases by
April 12, 2019. Id. at 1. She scheduled a status
conference for April 30, 2019 at 9:30 a.m., indicating that
at that time she wanted an update as to the status of
discovery (as well as an update on whether the plaintiff had
found a lawyer). Id. at 2.
April 30, 2019 status conference, Judge Joseph learned that
the plaintiff had not signed the medical release as she had
ordered him to do, and that he had not responded to many of
the defendant's discovery requests. Dkt. No. 26. Judge
Joseph ordered the plaintiff to provide the medical release
and the discovery by May 10, 2019. Id. She also gave
the plaintiff a deadline of May 17, 2019 to file an amended
complaint. Id. She issued a separate scheduling
order, requiring the parties to complete discovery by July
12, 2019 and to file dispositive motions by August 12, 2019.
Dkt. No. 27. The court received the amended complaint on May
20, 2019, dkt. no. 28, and the defendants answered on May 30,
2019, dkt. no. 30.
17, 2019, the defendants filed the instant motion to dismiss
the case. Dkt. No. 31. The motion stated that the plaintiff
still had not signed the medical release, despite the
defendants having sent him the form three times. Id.
at 2. They reiterated that the plaintiff had refused to
attend his deposition on January 9, 2019. Id. They
explained that they'd served their first written
discovery demands on November 27, 2018, that despite several
court orders the plaintiff had not responded until June 5,
2019, and that he'd provided the same response to each
interrogatory and document request: “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 sent a second set of written discovery on December
7, 2018, to which the plaintiff had not responded.
Id. The defendants recounted all the times the court
had ordered the plaintiff to comply with the defendants'
discovery demands. Id. at 3-4. The defendants asked
the court to dismiss the case because of the plaintiff's
failure to obey court orders and failure to comply with
and a half later, the plaintiff filed a motion for sanctions.
Dkt. No. 35. He asserted that defense counsel had disclosed
his Social Security number and date of birth in violation of
the E-Government Act. Id. at 2. He also asserted
that when they filed their motion to dismiss, the defendants
had attached copies of the release form which contained the
Social Security number and date of birth. Id. at 5.
The defendants responded by reiterating their request for the
court to dismiss the case. Dkt. No. 38.
plaintiff responded with a document indicating that he'd
been placed in protective segregation at the Racine
Correctional Institution on July 20, 2019 and then had been
moved to the Oshkosh Correctional Institution on August 7,
2019. Dkt. No. 40 at 2. He asserted that during that time, he
didn't have access to his legal materials. Id.
He then was in a county jail for five days ahead of a court
appearance. Id. at 3. He indicated that these
circumstances prevented him from filing “necessary
pleadings” with the court by August 12,
2019. Id. The plaintiff also alleged
that while he was in the county jail, defendant Wilson had
threatened his life, and that he needed to amend his
complaint to incorporate that information. Id. at 4.
He asked the court to schedule a status conference, and to
scan the motion into the docket. Id.
Joseph held a hearing on October 1, 2019. Dkt. No. 41. Judge
Joseph asked the plaintiff why the court shouldn't
dismiss his case for failure to prosecute it, given that he
hadn't responded to discovery requests or signed the
medical release. Id. The plaintiff explained about
being put in segregation and not having his legal materials
and expressed concern that his Social Security number would
become public if he completed the medical release.
Id. Judge Joseph explained that it was the medical
facility having the plaintiff's records needed the Social
Security number, not the defendants. Id. The
defendants reiterated their request that the court dismiss
the case for the plaintiff's failure to comply with the
court's orders and with their discovery demands.
Joseph did not dismiss the case at the October 1, 2019
hearing; she took it under consideration so that she could
review the docket and put her decision in writing. Dkt. No.
43 at 7. She issued her written recommendation to this court
on November 18, 2019. Dkt. No. 43. After recounting in detail
the above events, Judge Joseph concluded that despite being
given several chances to participate in discovery, the
plaintiff had refused to do so. Id. at 7. She stated
that despite repeated warnings that his case could be
dismissed if he didn't sign the medical release, he
hadn't done so. Id. She described the
plaintiff's repeated delays in responding to discovery
demands, and noted that when he finally did respond, he
claimed that his mental condition prevented him from
providing discovery. Id. at 8. Judge Joseph did not
find this persuasive; she discussed the interactions
she'd had with the plaintiff, and the many pages of
documents he'd filed. Id. She concluded that the
plaintiff had “flouted” her orders to participate
in the discovery process and recommended that the case be
dismissed without prejudice. Id.
December 11, 2019, the plaintiff filed a document titled
“Plaintiff's Affidavit-Statement of Facts
Vehemently Objecting to the Magistrate Recommendation.”
Dkt. No. 44. He claimed that Judge Joseph had
“mischaracterized” his argument about his Social
Security number; he asserted that “those entities to
which the records are sought” weren't entitled
access to the information. Id. at 1. He stated that
if the court continued to “ignorantly and
arrogantly” disregard the reason he refused to sign the
release form, he would ask the American Civil Liberties Union
to file an amicus brief on the issue and would appeal to the
Seventh Circuit. Id. at 2. After further discussion
of his beliefs on the Social Security issue, the plaintiff
reiterated that he'd not had meaningful access to his
legal files due to the various transfers from one facility to
another. Id. He reiterated his claim that defendant
Wilson had threatened him. Id. He also asserted that
while Judge Joseph's recommendation was dated November
18, 2019, he didn't receive it until November 22, 2019.
Rule of Civil Procedure 72(b)(3) requires the district court
to conduct a de novo review of any part of the magistrate
judge's report and recommendation to which a party
properly objects. This court has independently reviewed all
the pleadings discussed above, as well as the minutes of the
hearings Judge Joseph held and her order recommending
dismissal. The court will adopt Judge Joseph's
Civ. P. 37 allows the court to sanction a party who does not
obey the court's discovery orders. Rule 37(b)(2)(A)(v)
allows the court to dismiss a case ...