United States District Court, D. South Carolina, Columbia Division
Vernice L. James, Plaintiff,
Nancy A. Berryhill, Acting Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.
action has been filed by the Plaintiff, pro se, asserting
claims under Title VII of the Civil Rights of 1964, 42 U.S.C.
§ 2000e, et seq., as well as under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
626, et seq. By Order filed April 9, 2018, Plaintiff was
granted IFP status. Service of process was authorized by
separate Order entered May 18, 2018, and an answer was filed
by the Defendant on August 29, 2018.
February 8, 2019, the Defendant filed a motion to compel
deposition, responses to written discovery, and to extend
discovery. In this motion, Defendant represented that
Plaintiff had failed to appear for her deposition or to
contact defense counsel to reschedule her deposition, thereby
resulting in the Defendant incurring appearance fees for the
court reporter. Plaintiff had also failed to respond to
interrogatories, requests to produce, or requests to admit
which had been served on her, and had further failed to
respond to any communication from the U.S. Attorney's
Office. The Defendant sought an order compelling Plaintiff to
respond to Defendant's written discovery requests, and
requiring Plaintiff to attend her deposition.
failed to respond to this motion, and on February 25, 2019
the Court entered an Order granting the motion, requiring
Plaintiff to submit proper responses to the cited discovery
requests within ten (10) days of the date of that Order, and
to attend her deposition (which was to scheduled and noticed
by the Defendant). Although the Defendant had also requested
an award of attorneys fees and costs, that request was denied
at that time, without prejudice, with leave to renew.
Finally, Plaintiff was also specifically advised, in bold
type, that if she failed to comply with that Order, her case
would be recommended for dismissal. Plaintiff thereafter
filed a “response” with the Court on March 12,
2019, advising that she had had a death in the family and
also planned to take a few days leave to spend spring break
with her granddaughter, and requesting additional time to
prepare for her deposition, and also to depose “the
Agency (Defendant)”. The Defendant responded with a
filing indicating that, in response to Plaintiff's
request to reschedule her deposition until after her
granddaughter's spring break, it had sent out a new
deposition notice setting Plaintiff's deposition for
April 17, 2019. However, the Defendant also further advised
the Court in that filing that Plaintiff had failed to respond
to Defendant's discovery requests as directed by the
Court in it's previous Order granting Defendant's
motion to compel.
April 17, 2019, Plaintiff filed a motion for judgment on the
pleadings. Plaintiff's motion reads, in its entirety,
“Plaintiff hereby moves for Motion for an On the Record
Decision based on the evidence in the file”. The
Defendant thereafter filed a motion for discovery sanctions
on April 30, 2019,  asking that Plaintiffs Complaint be
dismissed on the grounds that Plaintiff had again failed to
appear for her duly noticed deposition and had also still
failed to submit proper responses to the Defendant's
written discovery requests. In that motion, Defendant further
seeks reimbursement for the deposition costs incurred for the
two occasions when Plaintiff failed to appear for her
deposition. Plaintiff has failed to file a response to the
Defendant's motion to dismiss her case for failing to
cooperate in discovery or comply with the Court's Order
of February 25, 2019.
37(b)(2), Fed.R.Civ.P., provides that if a party fails to
obey an order to provide or permit discovery, the Court in
which the action is pending may make such orders in regard to
such failure as are just, including dismissing the action.
Further, Rule 41(b), Fed.R.Civ.P., authorizes the Court to
dismiss an action for failure to prosecute or for failure to
comply with court orders. "There is no doubt that
Federal Courts possess the inherent authority to dismiss a
case with prejudice . . ." See Link v. Wabash
Railroad Co., 370 U.S. 626, rehg. denied, 371 U.S. 873
(1962); Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991); Martinez v. Johnson, 104 F.3d 769, 772 (5th
Cir. 1997). Whether to dismiss under Rule 41(b) is a matter
for the Court's discretion; see Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978); and the Court
of Appeals for the Fourth Circuit has developed a four-prong
test to determine whether a Rule 41(b) dismissal is
appropriate. The District Court is to consider (1) the degree
of personal responsibility of the Plaintiff; (2) the amount
of prejudice caused the Defendant; (3) the existence of a
"drawn-out history of deliberately proceeding in a
dilatory fashion"; and (4) the existence of sanctions
less drastic than dismissal. Chandler Leasing Corp. v.
Lopez, 669 F.2d 919, 920 (4th Cir. 1982); Tinsley v.
Quick & Reilly, Inc., 216 F.R.D. 337, 338 (E.D.Va.
2001); Contreras v. NFN Pettiford, No. 05-3552, 2006
WL 2621866 (D.S.C. Sept. 11, 2006).
review of the file and docket of this case, all as is
discussed more fully hereinabove, shows that Plaintiff has
failed to comply with court orders directing her to comply
with discovery requests from the Defendant, that she failed
to respond to motions filed with this Court or with
instructions received from the Court, and that she has
repeatedly failed to appear for noticed depositions. Hence,
the degree of personal responsibility of the Plaintiff is
manifest. The docket and filings in this case further clearly
set out a “drawn-out history of deliberately proceeding
in a dilatory fashion” by the Plaintiff. Therefore,
Plaintiff meets the first and third prongs of the Fourth
Circuit's four prong test. Additionally, while the
Plaintiff has engaged in the conduct described herein, the
continuation of this action has caused the Defendant to incur
continuing costs and expenses associated with this lawsuit.
Further, Plaintiff's failure cooperate in discovery has
prejudiced the Defendant's ability to ascertain the facts
and prepare a defense in this action. Therefore, the facts in
this case also satisfy the second prong of the Fourth
Circuit's four prong test.
the fourth prong of the Fourth Circuit's four prong test,
the record in this case shows that Plaintiff has failed to
respond to written discovery requests from the Defendant, has
failed to respond to motions filed by the Defendant, has
failed to attend her noticed depositions, and has failed to
comply with court orders relating to the continued
prosecution of this case. While the undersigned is mindful of
the fact that Plaintiff is without counsel, and that federal
courts have historically treated pro se litigants with some
degree of liberality, pro se litigants are not immune from
sanction by virtue of their status alone. See e.g. also
Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir.
1989), cert. denied sub nom., Ballard v. Volunteers of
America, 493 U.S. 1084 (1990); Gantt v. Maryland
Div. Of Correction, 894 F.Supp. 226 (D.Md. 1995),
aff'd, 73 F.3d 357 (4th Cir. 1996). In this case, in
light of Plaintiff's IFP status, an award of monetary
sanctions in this case as opposed to dismissal would not be
an appropriate or effective sanction. Moreover, Plaintiff has
previously been specifically warned by the Court that her
failure to cooperate in discovery would result in a
recommendation of dismissal of her case. Cf.
Ballard, 882 F.2d at 95 [Magistrate judge's
prior explicit warning that a recommendation of dismissal
would result from Plaintiff failing to obey his order was
proper grounds for the district court to dismiss suit when
Plaintiff did not comply despite warning]. Even so, Plaintiff
failed to submit responses to the Defendant's discovery
requests or otherwise properly respond to Defendant's
inquiries, and she continues to refuse to sit for a
deposition. Therefore, dismissal is the appropriate sanction
in this case. Lolatchy v. Arthur Murray,
Inc., 816 F.2d 951, 954, n.2 (4th Cir. 1987) [noting
that warning to parties was a “salient fact” that
distinguished cases in which default judgment was appropriate
sanction for discovery abuse under Rule 37]; see also
Mutual Federal Savings and Loan Ass'n v. Richards
& Associates, Inc., 872 F.2d 88, 92 (4th Cir. 1989).
on the foregoing, it is recommended that the Defendant's
motion to dismiss Plaintiffs Complaint, with prejudice, as a
discovery sanction be granted. See Rules 37(b)(2) and 41(b),
Fed.R.Civ.P. In light of this recommendation, it is further
recommended that the Plaintiffs pending motion for judgment
on the pleadings be denied, while the Defendant's pending
motion for summary judgment be deemed moot. Finally, in light
of Plaintiff s IFP status, it is recommended that the
Defendant's motion for an award of fees and costs
incurred due to Plaintiff s failure to attend her depositions
as a further sanction in this case be denied.
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the ...