Blankenship v. Gentry et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ROY GLENN BLANKENSHIP 	PLAINTIFF
v. 	Civil No. 4:22-cv-04055
SHERIFF ROBERT GENTRY;
CHRIS WALCOTT; NURSE TAMMY FOWLER;
TERRY HERNANDEZ; and ANNA MEJIA 	DEFENDANTS
ORDER
Plaintiff, Roy Glenn Blankenship originally filed this 42 U.S.C. § 1983 action pro se on
June 27, 2022. (ECF No. 1). Plaintiff also submitted an Application to proceed in forma pauperis
(“IFP”) with his Complaint. (ECF No. 2). The Court granted Plaintiff IFP status on the same day.
Currently before the Court is Defendant Fowler’s Motion for Sanctions. (ECF No. 38). Plaintiff
has responded, (ECF No. 43), and now the matter is ripe for consideration.
I. BACKGROUND
On October 6, 2022, the Court entered an Initial Scheduling Order setting dates for
discovery and dispositive motions. 	(ECF No. 23). 	This Order also includes required initial
disclosures to be produced to Plaintiff:
By November 21, 2022, Defendant(s) shall provide Plaintiff with a copy of all incident
reports documenting incidents referenced in the Plaintiff’s complaint, including any color
photographs, and video footage of the same, and shall also provide Plaintiff with a copy of
all medical requests, grievances, and photographs in the Plaintiff’s file, as well as any
written policies, which related to the facts recited in Plaintiff’s complaint. In instances in
which the Plaintiff is incarcerated, if any video footage provided to Plaintiff is
returned to defense counsel by the institution of incarceration, defense counsel shall
provide a copy of this order to the appropriate official of the institution and this order
shall serve as authorization for the Plaintiff to view the video.
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Id. at 1. Further, the Scheduling Order directed the parties to engage in discovery pursuant to the
Federal Rules of Civil Procedure and complete all discovery by February 3, 2023. Id. at 1-2.
On 	November 	21, 	2022, 	nonmoving 	Defendants 	(the 	nonmedical 	Sevier 	County
employees) filed a Notice of Defendant’s Disclosures to Plaintiff. 	(ECF No. 27). 	This Notice
stated Plaintiff was provided with:
… a copy of his Sevier County Detention Center inmate file which includes all medical
requests, grievances, medical file, incident reports, etc. 	Plaintiff has also been provided
with a copy of the Sevier County Detention Center Handbook and Policies: Emergency
Health Care (pg. 44-45); Detainee Health Care (pg. 46-47); Services and Rules for Inmates
(pg. 67-68); Inmate Request for Medical Attention (pg. 75);Emergency Medical Care (pg.
76); Medication/Pharmaceuticals (pg. 78); Detainee Healthcare (pg. 106-108); Grievances
(pg. 140); and Definitions of Grievances and Offenses (pg. 141).
(ECF No. 27). This Notice goes on to explain there are no other documents, photographs, or video
footage which relates to the facts in Plaintiff’s Complaint. Id.
On November 21, 2022, Defendant Fowler served Plaintiff with Interrogatories, Requests
for Production, and Requests for Admission. Plaintiff failed to respond. On December 21, 2021,
Defendant Fowler forwarded a meet and confer letter to Plaintiff again requesting responses to
previously submitted discovery requests and extending the response deadline to such requests to
January 6, 2023. Plaintiff again failed to respond, and on January 6, 2023, Defendant Fowler filed
a Motion to Compel. (ECF No. 29).
Plaintiff did not file a response to Defendant Fowler’s Motion to Compel. Accordingly,
on March 31, 2023, the Court entered an Order granting Defendant Fowler’s Motion to Compel.
(ECF No. 34). Pursuant to Federal Rule of Civil Procedure 36(a)(3), the Court deemed all Request
for Admissions admitted and ordered Plaintiff to respond to all Interrogatories and Request for
Production of Documents by April 31, 2023. (ECF No. 34).
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On May 25, 2023, Defendant Fowler filed the instant Motion, notifying the Court Plaintiff
failed to comply with the Court’s March 31, 2023 Order. (ECF No. 38).
The Court entered an Order to Show Cause on June 2, 2023 directing the Plaintiff to show
cause why he failed to comply with the Court’s March 31, 2023 Order and produce all ordered
discovery to Defendant Fowler. (ECF No. 40).
Plaintiff filed a Response to the Court’s Order to Show Cause on June 16, 2023. (ECF No.
43). 	In this Response, Plaintiff admits he has not responded to Defendant Fowler’s discovery
requests. 	He argues, however, he has nothing to produce or use in responding because the
Defendants have not produced to him the initial disclosures ordered by the Court. 	Plaintiff
specifically states: “My discovery, my proof is all in their possession . . ..” Id. at 1. Plaintiff goes
on to say he cannot produce something the Defendants have refused to give him. Id. at 2. Plaintiff
is not specific in identifying which Defendants have refused to produce discovery to him, but he
does specifically complain of not receiving any video or audio recordings. Id.
Defendant Fowler replied to this Response on June 20, 2023. (ECF No. 44). In her Reply,
Defendant Fowler states she did in fact produce the Court required Initial Disclosures to Plaintiff
on November 21, 2022. 	Id. Defendant Fowler produced to plaintiff policies and procedures of
Turn Key, Defendant Fowler’s employer, relevant to Plaintiff’s claims. Additionally, according
to a letter attached to Defendant Fowler’s Reply, Defendant’s counsel promised to forward a copy
of Plaintiff’s medical records from Sevier County Detention Center once they were available. Id.
at Ex. 1. It is unclear from the current record whether these medical records were produced.
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II. DISCUSSION
As an initial matter, the Court notes Defendant Fowler’s argument to deem all Request for
Admissions as admitted is moot. 	The Court previously ruled on this matter in its Order on
Defendant Fowler’s Motion to Compel. 	Pursuant to Rule 36(a)(3) all Request for Admissions
were deemed admitted on March 31, 2023. (ECF No. 34).
Next, Defendant Fowler seeks sanctions against Plaintiff in the form of a dismissal with
prejudice of all claims alleged against her.
Federal Rule of Civil Procedure 37 states in pertinent part:
If a party . . . fails to obey an order to provide or permit discovery . . .. the court where the
action is pending may issue further just orders. They may include . . . dismissing the action
or proceeding in whole or in part.
Fed. R. Civ. P. 37(b)(2)(A)(v).0F
1
However, dismissal with prejudice is “an extreme sanction [that] should only be used in
cases of willful disobedience of a court order . . ..” Rodgers v. Curators of the Univ. of Mo., 135
F.3d 1216, 1219 (8th Cir. 1998) (internal quotations omitted). While the district courts have wide
discretion in determining what sanctions are appropriate in discovery misconduct, Hutchins v. A.G.
Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997), the sanction must be proportionate to
the litigant’s misconduct, see Keefer v. Provident Life and Acc. Ins. Co., 238 F.3d 937, 941 (8th
Cir. 2000). To justify a sanction of dismissal there must be “(1) an order compelling discovery;
1 Defendant Fowler also argues the Court should dismiss based on Plaintiff’s failure to prosecute
under Local Rule 5.5(c)(2). 	However, as explained herein, Plaintiff responded to Plaintiff’s
Motion for Sanction and is currently prosecuting this matter. Furthermore, the Eighth Circuit has
cautioned that dismissal sanctions requested for purported discovery misconduct should only be
analyzed under Rule 37. Sentis Group, Inc., et al., 559 F.3d at 899.
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(2) a willful violation of that order, and (3) prejudice to the other party.” Sentis Group, Inc. et al.,
v. Shell Oil Co., 559 F.3d 888, 899 (8th Cir. 2009) (internal quotations and citations omitted).
Additionally, before dismissing with prejudice, due to the extreme nature of this sanction,
the Court should first consider lesser sanctions. See DiMercurio v. Malcom, 716 F.3d 1138, 1140
(8th Cir. 2013); see also Bergstrom v. Frascone, 744 F.3d 571, 574-76 (8th Cir. 2014) (holding
the district court abused its discretion in dismissing with prejudice without first considering lesser
sanctions because even when facts might support dismissal with prejudice lesser sanctions must
first be considered). 	Although the Court need not consider lesser sanctions when both willful
misconduct and bad faith are shown. See Gleghorn v. Melton, 195 Fed. Appx 535, 537, 2006 WL
2265880 (8th Cir. 2006) (reversing a district court dismissal even though the record clearly
indicated sanctions were warranted because the record was unclear as to whether the district court
considered lesser sanctions or whether it found the plaintiff acted willfully and in bad faith).
While Plaintiff’s pro se status does not excuse him from complying with the Federal Rules
of Civil Procedure and discovery requirements, Lindstedt v. City of Granby, 238 F.3d 933, 937
(8th Cir. 2000), the Court finds Plaintiff’s misunderstanding of the discovery process here negates
any willful disobedience which is required to dismiss Plaintiff’s claims against Defendant Fowler
with prejudice. Plaintiff is attempting to prosecute this matter as evidenced by his Response, and
the record indicates Plaintiff believes he cannot produce any information Defendant Fowler does
not already possess. 	(ECF No. 43). 	While this is clearly an incorrect understanding of the
discovery process, it does not evidence willful disobedience.
Furthermore, the Court is unconvinced by Defendant Fowler’s argument that she is
prejudiced because she cannot proceed with substantive arguments without Plaintiff’s response to
the discovery. As explained above, all Requests for Admission have been deemed admitted by the
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Court. Moreover, Plaintiff has stated in his Response, he has no additional information other than
what is in the possession of Defendants. 	Accordingly, it does not appear Defendant Fowler’s
knowledge and information on the issues would be enlarged by discovery responses from
Plaintiff.1F
2 Lastly, Defendant Fowler was provided the opportunity to depose the Plaintiff should
she have wished to elicit testimony from Plaintiff. See Initial Scheduling Order, ECF No. 23, p.
2.
III. CONCLUSION
Accordingly, the Court finds all Request for Admissions being deemed admitted is an
appropriate sanction at this time (which was granted in the Court’s Order at ECF No. 34), and
Defendant Fowler’s Motion for Sanctions as it requests dismissal with prejudice is DENIED at
this time. Specifically, Defendant Fowler’s Requests for Admission No. 1 through Admission No.
10 as enumerated in Exhibit One to Defendant Fowler’s Motion to Compel (ECF No. 29-1, pp. 8-
9) are hereby considered admitted by the Court pursuant to the Court’s Order at ECF No. 34.
However, Plaintiff is advised this Order does not condone disregarding the Federal Rules
of Civil Procedure, or this Court’s Orders. Plaintiff should communicate with Defendants’ counsel
during discovery, even if his response to the discovery requests consists of statements indicating
he has no information to provide or does not know the answer to the requests made. Continuing
failure to comply with the Court’s Orders and deadlines will, after this warning, be
construed as willful disobedience and justify dismissal of Plaintiff’s claims with prejudice.
The parties should proceed with filing Motions for Summary Judgment which are now due
by March 8, 2024.
2 The Court also would invite objections to any material, that should have been produced in
discovery by Plaintiff, being used by Plaintiff in future pleadings or hearings in this matter.
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IT IS SO ORDERED, this 24 th day of January 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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