United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss for Failure to Cooperate in Discovery and Failure to
Prosecute (ECF No. 19). Plaintiff filed a response in
opposition, and the Defendants filed a reply. In addition, on
April 10, 2017, the Court ordered Plaintiff to show cause why
the case should not be dismissed for failure to prosecute and
failure to comply with local and federal rules and the Orders
of the Court. Plaintiff filed his response to the show cause
order on April 24, 2017.
18, 2016, Plaintiff filed a Prisoner Civil Rights Complaint
under 42 U.S.C. § 1983. Plaintiff was incarcerated at
the Southeast Correctional Center ("SECC") when he
filed this action; however, he has since been released.
Plaintiff alleges that he has Hepatitis C and that, while
incarcerated at the SECC, Dr. Michael Hakala and Dr.
Cleveland Rayford refused to give him treatment even though
is ammonia levels were elevated. He further claims that
Defendant Becky Lizenbee, a nurse, did not always document
his complaints and interfered with his treatment. Finally, he
alleges that Corizon, LLC, had a policy of refusing treatment
to Hepatitis C patients because treatment is expensive.
Plaintiff also sought to hold Defendants George Lombardi and
Ian Wallace liable as a result of their supervisory duties.
However, on August 8, 2016, the Court dismissed those
parties. (ECF No. 11) On that same date, this Court also
granted Plaintiffs Motion to Proceed in forma
pauperis. (ECF No. 10)
October 12, 2016, this Court entered a Case Management Order
("CMO") setting forth, inter alia, the
discovery deadlines in this cause of action. The CMO
specified that no later than November 14, 2016, the Plaintiff
must submit to the Defendants a list of all persons having
knowledge or information of the facts giving rise to
Plaintiffs claim, as well as all documents Plaintiff believes
support his claim. (CMO ¶ 3, ECF No. 16) The CMO further
provided, "[f]ailure to make the above disclosures may
result in sanctions, including dismissal, entry of default
judgment or any other sanction that the Court deems
just." (Id.) Additionally, the CMO set the
discovery completion date as January 16, 2017. (CMO ¶ 4)
February 16, Defendants filed a Motion to Dismiss for Failure
to Cooperate in Discovery and Failure to Prosecute, asserting
that Plaintiff failed to serve initial disclosures, respond
to interrogatories and requests for production of documents,
and appear for his scheduled deposition. (ECF No. 19) In his
response in opposition to the motion to dismiss and response
to show cause order,  Plaintiff does not address his failure to
comply with the discovery deadlines set forth in the CMO.
Rule 41(b) of the Federal Rules of Civil Procedure, a
district court may dismiss a case "[i[f the plaintiff
fails to prosecute or to comply with these rules or a court
order . . . ." Fed.
P. 41(b). Unless the order states otherwise, a dismissal
under Rule 41(b) operates as an adjudication on the merits.
Id. "Because dismissal with prejudice is an
extreme sanction, it should be employed only in cases of
willful disobedience of a court order or persistent failure
to prosecute a complaint. Devoto v. Corizon, Inc.,
No. 2:I3CVOOOI9 ERW, 2014 WL 294326, at *3 (E.D. Mo. Jan. 27,
2014)) (citation omitted). "The district court need not
find that the party acted in bad faith, but only that [he]
acted intentionally as opposed to accidentally or
involuntarily." Doe v. Cassel, 403 F.3d 986,
990 (8th Cir. 2005) (citation omitted).
Court is aware of the liberal pleading standards afforded to
pro se litigants. However, in the instant case,
Plaintiff has failed to comply with Orders of this Court,
including the discovery deadlines in the CMO. In particular,
Plaintiff failed to appear at his scheduled deposition on
January 4, 2017 or answer any of Defendants'
interrogatories or requests for production of
documents. Such failure to engage in the discovery
process has delayed the progress of the litigation and
hindered Defendants' ability to prepare a defense or file
a timely motion for summary judgment. Further, despite the
Court's explicit order that Plaintiff show cause
"why this case should not be dismissed for failure to
prosecute and failure to comply with local and federal rules
and the Orders of this Court, including the Case Management
Order related to discovery, " Plaintiffs response is
silent as to these issues. The Court has advised Plaintiff of
his responsibilities with regard to following Court Orders
and discovery rules, as well as afforded Plaintiff
opportunities to address his failure to fulfill these
responsibilities. Thus, the Court finds that dismissal for
failure to prosecute and failure to comply with court orders
is warranted in this case. See Devoto, 2014 WL
294326, at *3 (dismissing plaintiffs complaint for failure to
prosecute where the plaintiff failed to respond to discovery
requests, ignored defendant's motion to dismiss, and
failed to respond to the court's order to show cause why
the motion to dismiss should not be granted). However, in
light of Plaintiff s alleged ongoing health issues, the Court
finds that dismissal without prejudice is the appropriate
sanction in this case. See Harris v. Forest Park
Hosp., 335 Fed.App'x 665 (8th Cir. 2009) (affirming
district court's dismissal of plaintiff s § 1983
action without prejudice due to plaintiffs failure to comply
with the court's order directing him to provide
defendants' names and addresses to effectuate service
after two extensions of time).
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss
for Failure to Cooperate in Discovery and Failure to
Prosecute (ECF No. 19) is GRANTED.
FURTHER ORDERED that Plaintiffs Prisoner Civil Rights
Complaint under 42 U.S.C. § 1983 is DISMISSED without
prejudice for failure to prosecute or otherwise comply with
Orders of this Court. A separate Order of Dismissal will
accompany this Memorandum and Order.