Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nelson v. United States

United States District Court, S.D. Indiana, Terre Haute Division

January 23, 2017

HENRY LEE NELSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ENTRY DISMISSING CASE AND DIRECTING ENTRY OF FINAL JUDGMENT

          LARRY J. McKINNEY, United States District Court Judge

         The Court has warned the plaintiff multiple times that his failure to participate in discovery with the defendant or to follow the Court's orders would result in the dismissal of this action. Not only has the plaintiff done neither, but he has repeatedly ignored the Court's orders altogether. For the reasons explained below, dismissal is the appropriate sanction for the plaintiff's conduct, and the defendant's motion to dismiss [dkt. 42] is thus granted.

         I.

         Background

         The plaintiff is a federal inmate incarcerated at Federal Correctional Institution Hazelton (“FCI Hazelton”), but at all times relevant to his claim was incarcerated at United States Penitentiary Terre Haute (“USP Terre Haute”). The plaintiff alleges that he was assaulted by a correctional officer, Counselor Jenson, on September 5, 2013, and brought this action against him on November 24, 2015. After explaining to the plaintiff that claims brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), had a two-year statute of limitations, the plaintiff was permitted to file an amended complaint asserting a claim against the United States under the Federal Tort Claims Act for the alleged assault. The Court entered a pretrial schedule on May 17, 2016, which set the discovery deadline for November 16, 2016, and the dispositive motions deadlines for December 16, 2016.

         On June 28, 2016, the plaintiff filed a document that explained how he was complying with the disclosure requirements set out in the Court's pretrial schedule. Among other things, the plaintiff stated that the “only evidence” to prove his claim is the video of the incident, which he was unable to obtain through the administrative remedy process. Dkt. 29 at 1.

         The defendant filed a motion to compel discovery on August 22, 2016. In its motion, the defendant detailed how it sent the plaintiff interrogatories and requests for production of documents on three separate dates: May 16, 2016; June 22, 2016; and July 11, 2016. On the latter two dates, the defendant sent the discovery requests to the plaintiff's updated location at FCI Hazelton, following the plaintiff's transfer to that facility. The plaintiff not only failed to respond to the discovery requests, but failed to respond to the correspondence at all.

         The plaintiff also did not respond to the defendant's motion to compel. Instead, on September 20, 2016, the plaintiff filed a motion for counsel, in which he requests the assistance of counsel because he needs access to the video of the incident and he did “not believe the [Bureau of Prisons] would provide that evidence to [him].” Dkt. 33 at 1. The Court sent the plaintiff a motion for counsel form and informed him that he should renew his request on that form so the Court had the appropriate information when assessing his motion. The plaintiff renewed his motion, but the Court denied it because he failed to demonstrate that he had made “reasonable efforts to secure private counsel” as required by Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). The plaintiff did not again request counsel.

         The Court granted the defendant's unopposed motion to compel. The plaintiff was ordered to fully respond to the defendant's discovery requests by October 21, 2016. The Court warned the plaintiff that the “[f]ailure to do so by [that] date could lead to the dismissal of th[e] action for failure to prosecute and failure to follow a Court order.” Dkt. 36 at 1.

         Three days before the deadline, on October 18, the plaintiff purportedly responded to the Court's order compelling discovery. However, his one-page submission is not a response to the Court's order. Instead, he states that the “only discovery is the video tape footage[] in the custody, care, [and] control of the defendant[], ” and he asks the Court to order the defendant to produce the video. Dkt. 40 at 1 (capitalization altered). The Court ordered the defendant to treat the plaintiff's filing as a discovery request pursuant to Rule 34.

         On October 31, 2016, the defendant filed the instant motion to dismiss for lack of prosecution. It argues that the plaintiff not only ignored its three attempts at conducting discovery, but ignored the Court's order compelling discovery, given that the plaintiff had still not responded to the defendant's outstanding discovery requests.

         Instead of responding to the defendant's motion to dismiss, the plaintiff filed a motion styled as a motion for default on November 21, 2016. He argued that the defendant failed to comply with the Court's discovery order regarding the video of the incident and requested that the Court again ordered it to turn over the video of the incident. As explained by the defendant in response, however, the defendant had already mailed two DVDs of the video to the plaintiff, but the plaintiff had not yet received them when he filed his motion.

         Given the defendant's response, the Court denied the plaintiff's motion on December 7, 2016. In that same Entry, the Court also stated the following:

Pending before the Court is the defendant's motion to dismiss for failure to prosecute based on the fact that the plaintiff has failed to respond to the defendant's discovery requests as ordered by the Court in an order granting the defendant's motion to compel dated September 23, 2016. In that order, the Court ordered the plaintiff to fully respond to the defendant's discovery requests and warned that if he did not this action could be dismissed for failure to prosecute or to obey a court order. Based on the defendant's motion to dismiss, it appears ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.