Allen, Jr. et al v. Hays, Houston Police Officer, In His Individual Capacity et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
John Allen, Jr., et al.,
Plaintiffs,
v.
Justin Thomas Hayes,
Defendant.
§
§
§
§
§
§
§
Civil Action H-18-171
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 152. Pending
before the court is Defendant’s Renewed Motion for Sanctions,
ECF 	No. 	279. 	Defendant 	seeks 	dismissal 	with 	prejudice 	for
Plaintiffs’ failure to comply with the court’s orders and discovery
rules. The court recommends that the motion be DENIED.
1. Background and Timeline
This case stems from the fatal shooting of John Allen, Sr.
Allen v. Hays, 65 F.4th 736, 741 (5th Cir. 2023) (Allen II). Plaintiffs
filed suit in Harris County in 2017, and Defendant Justin Hayes
removed the case to federal court in January 2018. ECF No. 1. The
Fifth Circuit has since ruled on this case and remanded it twice.
Allen v. Hays, 812 F. App’x 185 (5th Cir. 2020); Allen II, 65 F.4th
at 741.
This case has a lengthy history, which the court will not fully
recite here. The court entered an Order in July 2025, which it
incorporates by reference to this order, briefly summarizing the
case’s history. ECF No. 293. There, the court stated that it:
has held many hearings in this case, has extended the
discovery deadline many times, [] has ordered the
parties 	repeatedly 	to 	fully 	answer 	all 	outstanding
discovery requests, has entered monetary sanctions
United States District Court
Southern District of Texas
ENTERED
February 10, 2026
Nathan Ochsner, Clerk
Case 4:18-cv-00171 Document 356 Filed 02/10/26 in TXSD Page 1 of 5

2
against 	Plaintiffs’ 	counsel, 	and 	has 	threatened
dismissal of this case. Judge Tipton has twice reviewed
and 	affirmed 	the 	court’s 	discovery 	and 	sanctions
orders. In short, the court has done all it can to prompt
the parties to engage in discovery.
Id. The court then entered an additional sanction and ordered that
“the parties may not rely on evidence that should have been, but
was not, turned over during discovery to support any motion,
claim, or defense.” Id. at 3.
Defendant 	argues 	that, 	despite 	the 	court’s 	sanctions,
Plaintiffs have failed to comply with basic discovery orders, and
thus, the court has no other option than to dismiss Plaintiffs’ suit
with prejudice. ECF No. 279 at 3. In response, Plaintiffs argue that
Defendant has also failed to adequately respond to discovery
requests and that Plaintiffs have made good faith efforts to comply.
ECF No. 287 at 1–6.
After 	filing 	his 	motion, 	Defendant 	filed 	a 	Notice 	and
Supplement informing the court that Plaintiff Martha Vaughn had
passed 	away 	before 	the 	parties 	deposed 	her.1 	ECF 	No. 	301.
Defendant argues that “Plaintiffs have succeeded in preventing
the defense from obtaining reasonable discovery in this case and
impeding the defense’s ability to explore evidence and develop
defense strategies they planned for and zealously pursued since
July 	2023.” 	Id. 	at 	3. 	Defendant 	generally 	argues 	that 	he 	is
prejudiced 	by 	Plaintiffs’ 	failures 	to 	comply 	with 	the 	court’s
discovery orders because Defendant cannot obtain phone records
for John Allen, Sr. and because Defendant cannot obtain Martha
Vaughn’s deposition. See generally, id.
1 Plaintiffs moved to strike the Supplement. ECF No. 304. The court denied Plaintiffs’
motion. ECF No. 310.
Case 4:18-cv-00171 Document 356 Filed 02/10/26 in TXSD Page 2 of 5

3
2. Legal Standard and Analysis
When a party fails to obey a discovery order, the court may
impose sanctions, including dismissal of the action. Fed. R. Civ.
P. 37(b)(2)(A)(v). District courts have broad discretion in crafting
appropriate 	sanctions 	under 	Rule 37. 	Law 	Funder, 	L.L.C. 	v.
Munoz, 924 F.3d 753, 758 (5th Cir. 2019). Sanctions, other than
litigation-ending or “death penalty” sanctions, must be just and
related to the particular issue addressed by the discovery order
that was violated. Id. On the other hand, before litigation-ending
sanctions can be imposed under Rule 37, the court must find that:
“(1) the discovery violation was committed willfully or in bad faith;
(2) the client, rather than counsel, is responsible for the violation;
(3) the violation ‘substantially prejudice[d] the opposing party’;
and (4) a lesser sanction would not ‘substantially achieve the
desired deterrent effect.’” Id. at 758–59.
Similarly, Federal Rule of Civil Procedure 41(b) permits
involuntary dismissal of an action when “the plaintiff fails to
prosecute 	or 	to 	comply 	with 	these 	rules 	or 	a 	court 	order[.]”
Rule 41(b) dismissal with prejudice is “a severe sanction” that
requires (1) “a clear record of delay or contumacious conduct by the
plaintiff[;]” and (2) an express finding that “lesser sanctions would
not prompt diligent prosecution, or the record shows that the
district court employed lesser sanctions that proved to be futile.”
Campbell v. Wilkinson, 988 F.3d 798, 801–02 (5th Cir. 2021)
(quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992)). In most cases, the Fifth Circuit also requires at least
one of the following aggravating factors: (1) the delay was caused
by the plaintiff and not the plaintiff’s attorney; (2) the defendant
was prejudiced by the delay; or (3) the delay can be characterized
as intentional. Id. at 802.
This case has been delayed for quite some time. However,
the court is unable to find that the delay was a result of bad faith
Case 4:18-cv-00171 Document 356 Filed 02/10/26 in TXSD Page 3 of 5

4
or 	any 	other 	aggravating 	factor 	required 	to 	allow 	the 	severe
sanction of dismissal under Rules 37 or 41. There is no evidence
that 	Plaintiffs, 	and 	not 	their 	counsel, 	are 	at 	fault 	for 	the
inappropriate conduct in this case. There is also no direct evidence
that any violation was willful or done in bad faith. In fact, to put it
bluntly, the discovery failures in this case appear to be a result of
Plaintiffs’ counsel’s oversights and neglect.
The 	court 	has 	done 	everything 	in 	its 	power 	to 	prevent
prejudice to either side throughout the various discovery disputes.
For example, the court ordered that neither party may rely on
evidence 	that 	it 	should 	have, 	but 	did 	not, 	turn 	over 	during
discovery, which should prevent undue prejudice to either party.
As to the discovery that Defendant sought but was unable to
obtain, Plaintiffs have stipulated that they will not argue that
Allen, Sr.’s gun was planted or that Allen, Sr. did not own a gun.
ECF No. 293 at 4. Accordingly, the death of Martha Vaughn and
Defendant’s 	inability 	to 	obtain 	phone 	records 	should 	not
materially affect Defendant’s case.
Lesser sanctions have not resolved the disputes among the
parties, but it is the court’s intention that the previously entered
sanctions will allow the court to appropriately reach the merits of
the issues without prejudice to either party.
The court is well aware of the serious allegations that the
parties seek to resolve in this case. The court strongly prefers to
resolve cases on the merits. Accordingly, the court will not impose
the 	exceptional 	sanction 	of 	dismissing 	Plaintiffs’ 	case 	with
prejudice under these circumstances.
The 	several 	remaining 	motions 	are 	currently 	under
advisement.
Case 4:18-cv-00171 Document 356 Filed 02/10/26 in TXSD Page 4 of 5

5
3. Conclusion
The court recommends that Defendant’s Renewed Motion for
Sanctions, ECF No. 279, be DENIED.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on February 10, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
Case 4:18-cv-00171 Document 356 Filed 02/10/26 in TXSD Page 5 of 5