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Strong v. Wilson

United States District Court, E.D. Wisconsin

January 13, 2020

DENNIS STRONG, Plaintiff,
v.
LANCE L. WILSON, OUTAGAMIE COUNTY, DAVID KEISNER, DOUGLAS VERHEYEN, BRIAN WIRTZ, JEFFERY FEUCHT, MELISSA LINJER, and JOSHUA KRUEGER, Defendants.

          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 CASE

          HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.

         In the 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. §1915.

         The 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.

         After 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.

         Magistrate 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.

         At the 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.

         On June 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 discovery demands.

         A month 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.

         The 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[1]. 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.

         Judge 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. Id.

         Judge 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.

         On 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. Id.

         Federal 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 recommendation.

         Fed. R. 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 ...


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