Garcia #469454 v. Olson et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JUAN JOSE GARCIA,
Case No. 1:23-cv-1085
Plaintiff,
Hon. Jane M. Beckering
v.
SPENCER OLSON, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action brought by a state prisoner in the custody of the
Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. 	The
remaining defendant is RN Barden (named as “Bardan”). This matter is now before the Court on
RN Barden’s corrected motion for dismissal based on Fed. R. Civ. P. 41(b) (ECF No. 40).
I. 	Background
Plaintiff alleged that RN Barden was deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment. Opinion (ECF No. 10, PageiD.52). Compl. (ECF
No. 1). 	On December 9, 2024, the Court entered a Case Management Order (“CMO”) on
December 9, 2024 which included a discovery deadline of April 9, 2025 and a dispositive motion
deadline of May 7, 2025 (ECF No. 19). 	Id. 	The CMO explicitly authorized defendant to take
plaintiff’s deposition pursuant to Fed. R. Civ. P. 30(a)(2)(B).1 See CMO at PageID.99.
On July 30, 2025, the Court denied RN Barden’s motion for summary judgment of
the basis of exhaustion. 	See Order (ECF No. 28). 	The Amended CMO extended discovery to
1 Pursuant to Fed. R. Civ. P. 30(a)(2)(B), “A party must obtain leave of court, and the court must grant leave to the
extent consistent with Rule 26(b)(1) and (2): . . .(B) if the deponent is confined in prison.”
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January 15, 2026, extended the dispositive motion deadline to February 12, 2026, and stated that
“[a]ll other provisions in the original Case Management Order remain in effect” (ECF No. 30).
On November 17, 2025, RN Barden served a “Notice of Taking Deposition of
Plaintiff” (ECF No. 31). On December 11, 2025, plaintiff appeared for a virtual deposition. See
Garcia Dep. (ECF No. 41-1).
Shortly after the deposition commenced, plaintiff objected to the proceeding
stating, “I object to doing this deposition without legal guidance.” Id. at PageID.205.
When defendant’s counsel proceeded with the deposition, plaintiff stated,
I don't know if you thought I was playing. I told you I’m not answering no
questions without a lawyer.
Id. at PageID.206.
The deposition continued for a brief period. Plaintiff acknowledged that he wrote
the complaint. Id. Plaintiff acknowledged that his mother had some information, his mother knew
“that my right eye went out from getting tased in the head and then I was denied healthcare”. Id.
at PageID.207. When defense counsel asked if plaintiff’s mother had any information about the
alleged incident, plaintiff refused to participate any further in the deposition, stating:
Hey, you fishing like a motherfucker, hey, right? I’m going to go ahead and
hit this mute button, right? I’m going to get up. Sorry for wasting your guys’ time.
I’m going to turn this TV off; you know what I mean?
Id. Shortly thereafter, the following colloquy occurred:
Q Hey, Mr. Garcia? Mr. Garcia, I will ask again.
A Ain’t nothing really to talk about in the brig.
Id.
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Then, defendant’s counsel made the following statement:
For purposes of the record, Mr. Garcia is standing up from his chair. 	It
appears that he muted himself. 	He’s putting on his coat, and he appears to be
walking from the room where this deposition was being taken.
Id. at PageID.207-208. Defense counsel continued,
And it appears that Mr. Garcia has left the room at this point.
As previously noted, this was the time and date set for Mr. Garcia’s
deposition in this case. We did discuss at -- earlier in this case about Mr. Garcia’s
obligation to answer the questions that were asked. 	At this point, we’re able to
conclude this deposition, given that Mr. Garcia has left the deposition room.
We can go off the record at this point.
Id. at PageID.208.
II. 	Discussion
In her motion, RN Barden seeks to dismiss plaintiff’s lawsuit with prejudice
pursuant to Fed. R. Civ. P. 41(b), which states in pertinent part that,
If the plaintiff fails to prosecute . . ., a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not under this rule . . .
operates as an adjudication on the merits.
In the alternative, RN Barden asks that the Court order plaintiff to appear for his deposition and to
extend discovery.
Fed. R. Civ. P. 41(b) “is available to the district court as a tool to effect management
of its docket and avoidance of unnecessary burdens on the tax-supported courts and opposing
parties.” Knoll v. American Telephone & Telegraph Company, 176 F.3d 359, 363 (6th Cir. 1999)
(internal quotation marks and brackets omitted). Given these considerations, district courts “must
be given substantial discretion” in addressing motions brought pursuant to Fed. R. Civ. P. 41(b).
Id.
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Nevertheless, “[t]he dismissal of a claim for failure to prosecute is a harsh sanction
which the court should order only in extreme situations showing a clear record of
contumacious conduct by the plaintiff.” Schafer v. City of Defiance Police Dep't,
529 	F.3d 	731, 	736–38 	(6th 	Cir. 	2008) 	(internal 	citations 	omitted). 	. 	.
“Contumacious” is defined as “perverse in resisting authority” and “stubbornly
disobedient.” Schafer, 529 F.3d at 737 (citing Webster’s Third New International
Dictionary 497 (1986)).
Carthon v. Central State University, 290 F.R.D. 83, 87 (S.D. Ohio 2013).
In the context of dismissal pursuant to Rule 41(b) for failure to prosecute, we look
to four factors for guidance: (1) whether the party’s failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed
party’s conduct; (3) whether the dismissed party was warned that failure to
cooperate could lead to dismissal; and (4) whether less drastic sanctions were
imposed 	or 	considered 	before 	dismissal 	was 	ordered. 	Stough 	v. 	Mayville
Community Sch., 138 F.3d 612, 615 (6th Cir.1998). Although typically none of the
factors is outcome dispositive, it is said that a case is properly dismissed by the
district court where there is a clear record of delay or contumacious conduct. Carter
v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980).
Id.
With respect to the first factor, plaintiff’s failure to prosecute was due to his
willfulness and bad faith. 	Plaintiff filed a lawsuit while in prison and refused to participate in his
deposition. Plaintiff effectively abandoned this lawsuit when he refused to answer questions at his
deposition and referred to defense counsel’s questioning as “fishing like a motherfucker”. With
respect to the second factor, defendant was prejudiced because plaintiff refused to participate in
discovery. With respect to the third factor, the Court did not previously advise plaintiff that his
failure to cooperate could lead to dismissal. However, plaintiff was aware that his conduct could
result in dismissal, i.e., defendant filed two motions to dismiss and plaintiff did not take any steps
to contest the proposed dismissal. With respect to the fourth factor, the Court concludes that there
is no less drastic sanction available. Plaintiff chose to file this lawsuit without an attorney. 	As a
willfully unrepresented pro se litigant, plaintiff is required to follow the law and assumed “the
risks and hazards that accompany self-representation.” Graham-Humphreys v. Memphis Brooks
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Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000). Plaintiff’s “risks and hazards” include
representing himself at a deposition. 	Given plaintiff’s contumacious conduct exhibited at the
deposition and his refusal to proceed without an attorney, there is no lesser sanction that the Court
can fashion to control plaintiff’s behavior in this lawsuit.
Based on this record, the Court concludes that plaintiff’s lawsuit should be
dismissed for lack of prosecution. 	This Court expends significant resources addressing pro se
cases brought by prisoners and non-prisoners. When a pro se plaintiff fails to prosecute a case,
the Court can utilize Fed. R. Civ. P. 41(b) as a tool to manage its docket and to avoid “unnecessary
burdens” on both the Court and the defendants. 	See Knoll, 176 F.3d at 363. 	As this Court
previously observed, “[a] Plaintiff cannot file a lawsuit in federal court and then blatantly refuse
to follow basic procedural rules or rules of discovery.” 	Kent v. Office of Human Resources
Manager, No. 1:12-cv-176, 2013 WL 3730090 at *6 (W.D. Mich. July 15, 2013). 	For all of these
reasons, defendant’s motion to dismiss should be granted and plaintiff’s lawsuit dismissed with
prejudice.
III. 	Recommendation
Accordingly, I respectfully recommend that defendant’s corrected motion to
dismiss pursuant to Fed. R. Civ. P. 41(b) (ECF No. 40) be GRANTED and that this case be
DISMISSED with prejudice.
Dated: May 22, 2026 	/s/ Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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