Phillips v. Burnette et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
BRYAN R. PHILLIPS, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-90-DCLC-MJD
)
TIM CASH, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This case was filed pro se and without prepayment of fees by Plaintiff Bryan R. Phillips
(“Plaintiff”), an inmate at the Hardeman County Correctional Facility in Whiteville, Tennessee.
Currently before the Court is Defendants Tim Cash and Cody Pittman’s (“Defendants”) motion
for sanctions [Doc. 53 (the “Motion”)]. Plaintiff did not file a response to the Motion, and the time
for doing so has now passed. See E.D. Tenn. L.R. 7.1. The Court finds that Plaintiff has therefore
waived any opposition to the relief sought in the Motion. See E.D. Tenn. L.R. 7.2.
I. 	BACKGROUND
As set forth in the Motion, on January 25, 2025, Defendants served Plaintiff with their First
Request for Production of Documents and First Interrogatories [Doc. 53-1 (the “Discovery
Requests”)]. On January 30, 2025, Plaintiff filed a Notice of Change of Address, updating his
address to #377955 Hardeman County Correctional Facility [Doc. 46]. In response to this notice,
Defendants re-served the Discovery Requests on March 5, 2025 [Doc. 53-2]. Plaintiff never
responded to the Discovery Requests, prompting Defendants to send a letter attempting to resolve
the discovery dispute on October 6, 2025 [Doc. 53-3]. When Plaintiff failed to respond to
Defendants’ letter, Defendants filed the Motion [Doc. 53]. The record therefore reflects Plaintiff
has failed to respond to the Discovery Requests for over nine months.
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Plaintiff’s failure to respond to the Discovery Requests is but one of his several omissions
preventing this case from moving forward. For example, Plaintiff failed to timely serve another
defendant in the instant matter—Defendant “Slanton”1— resulting in a dismissal without prejudice
as to claims against Defendant Slanton [Doc. 49, Doc. 51]. Further, Plaintiff’s failure to timely
respond to discovery requests propounded by Defendant Tray Adams resulted in a Court order
compelling Plaintiff to respond on or before December 22, 2025 [Doc. 56].2 Finally, Plaintiff has,
on at least one recent occasion, refused to accept correspondence from the Court [Doc. 50].
Plaintiff’s conduct demonstrates a complete disregard for the Court’s orders and the
Federal Rules of Civil Procedure. It has also completely halted the progress of this litigation and
signaled to the Court the absence of Plaintiff’s desire to prosecute his claims.
II. 	ANALYSIS
Federal Rule of Civil Procedure 37(d)(1)(A)(ii) provides that sanctions may be imposed if
“a party properly served with interrogatories under Rule 33 or a request for inspection under Rule
34, fails to serve its answers, objections, or written response.” Federal Rule of Civil Procedure
27(d)(3) permits any sanction under Rule 37(b)(2)(A)(i)–(vi), to include “dismissing the action or
proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v). These sanctions can be authorized
without a pre-existing order compelling discovery, where a party has inexcusably failed to answer
or object to properly served discovery requests, and where no protective order has been sought.
See Fed. R. Civ. P. 37(d)(2).
1 “Slanton” is Plaintiff’s spelling in the Amended Complaint [Doc. 17]. The police report spells
the name, “Slatton” [Doc. 15 at Page ID # 6–7]. This Order uses the spelling provided by Plaintiff
in the Amended Complaint.
2 Although Defendant Adams has not filed a subsequent motion for sanctions, the record is devoid
of any indication that Plaintiff complied with the Court’s order.
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Dismissal of an action for failure to cooperate in discovery is a “sanction of last resort that
may be imposed only if the court concludes that a party’s failure to cooperate in discovery is due
to willfulness, bad faith, or fault.” Patton v. Aerojet Ordnance Comp., 765 F.2d 604, 607 (6th Cir.
1985) (citing Societe Internationale v. Rogers, 357 U.S. 197 (1958)). The Sixth Circuit has taken
the position consistent with Supreme Court precedent that “if a party has the ability to comply with
a discovery order and does not, dismissal is not an abuse of discretion.” Stamtec, Inc. v. Anson,
195 F. App’x 473, 478 (6th Cir. 2006) (citing Reg’l Refuse Sys., Inc. v. Inland Reclamation Co.,
842 F.2d 150–51 (6th Cir. 1988) superseded by statute on other grounds).
Also applicable under these circumstances is Federal Rule of Civil Procedure 41(b), which
“confers on district courts the authority to dismiss an action for failure of a plaintiff to prosecute
the claim or to comply with the Rules or any order of the Court.” Schafer v. City of Defiance Police
Dep’t, 529 F.3d 731, 736 (6th Cir. 2008) (citing Knoll v. AT&T, 176 F.3d 359, 362–63 (6th Cir.
1999)); see also Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled
that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”).
Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid
unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F.3d at 736 (quoting
Knoll, 176 F.3d at 363). The Sixth Circuit therefore affords district courts “substantial discretion”
regarding decisions to dismiss for failure to prosecute. Id.
The Court considers four factors when addressing a motion to dismiss under Rule 41(b):
(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.
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Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005); see also Mager v. Wisconsin Central
Ltd., 924 F.3d 831, 837 (6th Cir. 2019). These are the same factors a court considers when
addressing a motion to dismiss pursuant to Fed. R. Civ. P. 37(d). Harmon v. CSX Transp., Inc.,
110 F.3d 364, 366–67 (6th Cir. 1997) (analyzing motion to dismiss under Rule 37 and Rule 41(b)).
When applying these four factors to this case, the Court believes Plaintiff’s failure to
participate in discovery and prosecute his claims warrants dismissal. First, Plaintiff has repeatedly
failed to respond to the Discovery Requests for more than nine months, has ignored a recent order
commanding his responses to another defendant’s outstanding discovery requests [Doc. 55], and
has on one recent occasion refused to accept correspondence from the Court [Doc. 50]. Plaintiff’s
failure to provide any justification or excuse for his conduct leaves the Court with no choice but
to determine that such conduct has been intentional and willful. Second, Defendants have been
significantly prejudiced in the development of their defense by Plaintiffs’ months-long refusal to
respond to the Discovery Requests or meaningfully participate in the litigation. Third, the Court
has warned Plaintiff that failure to properly participate in discovery and/or timely prosecute his
claims could result in the dismissal of his lawsuit [Doc. 49; Doc. 56]. Finally, the Court has
considered measures less drastic than dismissal (e.g., a show cause order (which Plaintiff ignored)
and an order compelling responses to outstanding discovery (which Plaintiff ignored)), but does
not find that they would be effective in compelling Plaintiff to cooperate fully in the discovery
process given the Court’s prior warnings, Plaintiff’s history of non-compliance with other orders
and deadlines, and his failure to respond to the Discovery Requests for over nine months.3
3 The Court is sensitive to the fact that Plaintiff is a pro se litigant. However, “[p]ro se litigants are
required to follow the rules of civil procedure and easily-understood Court deadlines.” Mooney v.
Cleveland Clinic Found., 184 F.R.D. 588, 590 (N.D. Ohio 1999) (citing Jourdan v. Jabe, 951 F.2d
108, 110 (6th Cir. 1991)); see also West v. Adecco Empl’t Agency, 124 F. App’x 991, 992 (6th Cir.
2005) (citations omitted).
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The Court does not believe that sanctions by themselves will compel Plaintiff to cooperate
fully in discovery or this litigation. Therefore, after careful consideration, the Court finds dismissal
of this action is appropriate and makes that recommendation to the District Judge.
III. CONCLUSION
For all the reasons stated herein, the Court RECOMMENDS4 Defendants’ Motion [Doc.
53] be GRANTED. The Court further RECOMMENDS that Plaintiff’s claims against Defendant
Cash and Defendant Pittman be DISMISSED WITH PREJUDICE as a sanction for failure to
cooperate in discovery pursuant to Federal Rule of Civil Procedure 37(d) and for failure to
prosecute his action pursuant to Federal Rule of Civil Procedure 41(b).
SO ORDERED.
ENTER:
/s/
MIKE DUMITRU
UNITED STATES MAGISTRATE JUDGE
4 Any objections to this report and recommendation must be served and filed within 14 days after
service of a copy of this recommended disposition on the objecting party. Such objections must
conform to the requirements of Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file
objections within the time specified waives the right to appeal the district court’s order. Thomas v.
Arn, 474 U.S. 140, 149 n.7 (1985). The district court need not provide de novo review where
objections to this report and recommendation are frivolous, conclusive, and general. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Only specific objections are reserved for appellate
review. Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987).
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