United States District Court, S.D. Indiana, Indianapolis Division
Theresa L. Dukes, Plaintiff,
Sgt. Eric Cox, et al., Defendants.
Hon. Jane Magnus-Stinson, Judge.
Presently pending before the Court is Defendants’ Joint Motion to Dismiss Or, In the Alternative, Motion to Exclude Plaintiff’s Presentation of Exhibits at Trial. [Filing No. 325.] Plaintiff Theresa L. Dukes did not file a response to Defendants’ motion. For the reasons set forth herein, the Court dismisses Plaintiff Theresa Dukes’ case against Defendants with prejudice pursuant to Federal Rules of Civil Procedure 41(b) and, alternatively, pursuant to the Court’s own authority set forth in Rule 16(f), which incorporates the dismissal sanction set forth in Rule 37(b)(2)(A)(v).
Federal Rule of Civil Procedure 41(b) provides, in relevant part, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits.”
Additionally, Federal Rule of Civil Procedure 16(f) provides that if a party fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order, the Court “may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii).” In relevant part, Rule 37(b) provides that one of the sanctions available to the Court for a party’s failure to obey an order is “dismissing the action or proceeding in whole or in part.” Fed. R. Civ. Pro. 37(b)(2)(A)(v). “The criteria for sanctions under Rules 16(f), 37(b), and 41(b) are the same.” Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993).
The Court has the “inherent authority to rectify abuses to the judicial process.” Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003). One such power is dismissal, but that authority “is not without limitations.” Greviskes v. Universities Research Ass’n, Inc., 417 F.3d 752, 759 (7th Cir. 2005). Instead, dismissal is considered a “draconian” sanction, Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003), that “should be employed sparingly and only when there is a record of delay, contumacious conduct, or when other, less drastic sanctions prove unavailing[, ]” Dotson, 321 F.3d at 667.
Ms. Dukes filed this case pro se in November 2009, asserting claims against Johnson County Sheriff’s Deputy Sergeant Eric Cox, Johnson County Sheriff’s Deputy Joe Schmidt, and Indiana State Police Trooper Jeff Sego (collectively, the “Defendants”). [Filing No. 1.] Her operative complaint alleges a federal 42 U.S.C. § 1983 claim and state law assault, battery, and gross negligence claims stemming from a November 2007 incident in which Ms. Dukes alleges that the Defendants used “excessive, unreasonable and unnecessary force” against her. [Filing No. 55 at 2.] The Court granted summary judgment on the civil conspiracy portion of Ms. Dukes’ § 1983 claim in August 2012, [Filing No. 206], leaving her excessive force § 1983 claim and her state law claims to proceed to trial. [Filing No. 206 at 7.]
A. Serial Withdrawal of Retained Counsel
Ms. Dukes obtained her first attorney approximately eight months after initiating this action, [Filing No. 25], and has been represented by four sets of counsel at various points during these proceedings, all of whom she has either terminated from representation or this Court has granted leave to withdraw, [see, e.g., Filing No. 64; Filing No. 103; Filing No. 202; Filing No. 282]. Ms. Dukes has represented herself pro se at various points when she was without counsel, including since November 24, 2014, when her final counsel of record was granted leave to with-draw. [Filing No. 282.]
B. Discovery Misconduct
Discovery disputes between the parties resulted in the Defendants filing three motions to compel, two of which were granted, [Filing No. 84 (granted); Filing No. 141 (denied); Filing No. 175 (granted)], and two motions to dismiss Ms. Dukes’ case as a discovery sanction for her repeated noncompliance, [Filing No. 116 (denied); Filing No. 180 (denied)].
For example, Ms. Dukes was monetarily sanctioned for her conduct at her court-ordered deposition, where she refused to provide substantive testimony. [Filing No. 124; Filing No. 115 (allowing Ms. Dukes’ deposition to be limited to four hours, but denying her request to continue it because her “continued effort to obtain counsel is an insufficient basis for stalling the case for 90 days, particularly because this is the second withdrawal of counsel”).] Ms. Dukes attended the deposition as ordered, but “after answering some preliminary questions, she read a short statement into the record, claiming to be too ill to understand and respond to questions. She said she did ‘not wish to proceed with [the] deposition under [her] current medical problems and without the assistance of counsel.’” [Filing No. 124 at 1.] Ms. Dukes then “refused to answer any other questions, including questions addressed to the assertions she had made in her statement.” [Filing No. 124 at 1.] In denying the Defendants’ motion to dismiss, the Court found that Ms. Dukes’ “conduct at her deposition was improper and merits sanction, but not the draconian sanction of dismissal.” [Filing No. 124 at 1.] The Court warned that it “perceives in Ms. Dukes’s conduct and in her statement her refusal to accept the Court’s order that she must proceed with her case, with or without counsel. A sanction is therefore appropriate to deter further improper discovery conduct and to ameliorate the expense the defendants incurred as a result of Ms. Dukes’s improper conduct.” [Filing No. 124 at 2.] The Court noted that if Ms. Dukes
intends to engage counsel, she must do so immediately if she has not done so already and that, if she does not engage counsel, she will nevertheless be expected to comply with all her obligations-including the obligation to appear. . . . The Court reminds Ms. Dukes that deadlines in federal court are vigorously enforced, and the only sure method to obtain relief from them is to seek assistance from the Court.
[Filing No. 124 at 3.]
In another incident, after Ms. Dukes was ordered by the Court to produce information at issue in one of the motions to compel, she filed a “notice of noncompliance” and attached her affidavit asserting why she did not believe she should have to comply. [Filing No. 177; Filing No. 221.] She only produced the information after the Defendants moved to dismiss her case. [Filing No. 221.] In denying the Defendants’ motion to dismiss Ms. Dukes’ case, the Court acknowledged that Ms. Dukes did ultimately produce the information after an apparent “change of heart” prompted by the Defendants’ motion. [Filing No. 221 at 2.] While the Court concluded that it
does not find it appropriate to impose a sanction against Ms. Dukes based on the cumulative effect of her discovery conduct with respect to medical records, her deposition on November 7, 2011, and the late disclosure of the witness[, ] . . . these matters may be considered in the future if other instances arise regarding Ms. Dukes’s compliance with obligations she has to the parties and the court. Ms. Dukes is also cautioned that any further failure to comply with court orders-including those with which she disagrees-will put her case in peril.
[Filing No. 221 at 2-3.]
C. Administrative Closure of Case for Ms. Dukes’ Health Issues
On September 26, 2012, at Ms. Dukes’ request, the jury trial in this action was rescheduled for January 14, 2013, with a final pretrial conference to be held on December 19, 2012. [Filing No. 223 (granting Ms. Dukes’ Amended Emergency Motion for Continuance of Trial Date).] Ms. Dukes, pro se at that time, represented that a continuance was necessary because Dr. Fletcher- one of her expert witnesses, who is also a fact witness-was unavailable for the scheduled trial. [Filing No. 210; Filing No. 213.]
On November 27, 2012, Ms. Dukes filed an Emergency Motion for Continuance or Stay of Trial Date, representing that she “has been ill since mid to late September 2012 requiring a multitude of tests, procedures and treatment modalities . . . .” [Filing No. 238 at 1.] Ms. Dukes further represented that a few days prior she “was informed that she requires additional medical treatment specifically a surgical procedure.” [Filing No. 238 at 1.] Ms. Dukes questioned her own competence to proceed, represented that she “cannot provide the Court with a timeline” regarding her recovery, and requested a continuance of the pending trial date. [Filing No. 238 at 2-4.] Ms. Dukes submitted sealed and ex parte medical documentation to support her request. [See, e.g., Filing No. 233; Filing No. 239-1; Filing No. 247.]
The Court held a telephonic conference on December 19, 2012, and, without objection by the parties, administratively closed the case, “[g]iven Ms. Dukes’ medical condition and the uncertainty surrounding the timing of her recovery.” [Filing No. 248.] Pursuant to the Court’s Orders to do so, Ms. Dukes submitted periodic ex parte doctor’s reports regarding her medical condition and projected recovery time. The Court evaluated those reports and ultimately allowed Ms. Dukes’ case to remain ...