United States District Court, D. South Carolina, Columbia Division
Vernice L. James, Plaintiff,
Andrew Saul, Commissioner of Social Security Administration, Defendant.
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
this action, Plaintiff Vernice L. James
(“Plaintiff”) seeks recovery from her employer,
Andrew Saul, Commissioner of Social Security Administration
(“SSA”), for alleged employment discrimination
based on her race and age. ECF. No. 1. The matter is before
the court on Defendant's Motion for Discovery Sanctions,
filed April 30, 2019. ECF No. 57. Plaintiff did not file a
response to this motion.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(g), D.S.C., this matter was referred to United
States Magistrate Judge Bristow Marchant for pre-trial
proceedings and a Report and Recommendation
(“Report”). On August 2, 2019, the Magistrate
Judge issued a Report recommending that Defendant's
motion for sanctions be granted, and the case be dismissed
with prejudice. ECF No. 65. It also recommends denying
Plaintiff's motion for judgment on the pleadings and
Defendant's motion for summary judgment. Id. at
6. The Magistrate Judge advised the parties of the procedures
and requirements for filing objections to the Report and the
serious consequences if they failed to do so. Plaintiff filed
two documents containing objections (ECF Nos. 68, 70), and
Defendant filed a reply on August 6, 2019 (ECF No. 71). This
matter is now ripe for resolution.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The court is
charged with making a de novo determination of those portions
of the Report to which specific objection is made, and the
court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge, or recommit the
matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1). The court reviews only for clear error in
the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(stating that “in 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 recommendation.'”) (quoting Fed.R.Civ.P.
72 advisory committee's note).
Report recommends dismissal with prejudice as a discovery
sanction pursuant to a four-prong test set forth by the
Fourth Circuit. ECF No. 65 at 4. It finds no other type of
sanction appropriate, and that Plaintiff was warned her
failure to cooperate in discovery would result in a
recommendation of dismissal. Id. at 5.
objects, noting the first deposition was scheduled for
February 8, 2019, but she did not receive the notice until
February 13. ECF No. 70 at 1. Plaintiff argues Defendant has
“constantly pressured Plaintiff to accomplish said
requests [for production] with no regard to Plaintiff's
pro se status which, at best, would require Plaintiff to
expend an extended amount of time and effort to adequately
mount an earnest effort to answer Defendant's
requests.” Id. at 1-2. She complains she did
not have any supporting documents to use as a guide to
respond to discovery requests, and as a full-time employee
with SSA did not have time to complete the requests. She
noted “I was expected to respond to a case that
initiated on or about 2013.” Id. at 2. She
requests her Motion for Judgment on the Pleadings “be
acted upon as submitted.” Id. at 3.
replied to Plaintiff's objections, noting the objections
were late and therefore should not be
considered. ECF No. 71. Defendant also argues the
objections lack merit, as they relate to an EEOC case and not
the case before this court. Id. at 3. The reply
notes “[i]t is Plaintiff's responsibility to
prosecute this case. Defendant has attempted to engage in
discovery with Plaintiff to no avail.” Id.
court agrees Plaintiff has failed to participate in discovery
and to follow an Order of the court (ECF No. 44) to respond
to written discovery and to attend her deposition. Plaintiff
was warned continued failure would subject her case to
dismissal, yet has not responded to written discovery, and
there is no evidence of an attempt to confer with Defendant
regarding a potential extension for discovery requests or
available date for her deposition. Plaintiff notes she is pro
se, and therefore does not have time or knowledge required to
respond to the discovery requests. The court agrees pro se
litigants may be granted some flexibility in strictly
following the Rules of Civil Procedure or other court rules.
However, they may not simply fail to engage in discovery with
the opposing party. Plaintiff chose to bring this case, and
therefore must participate in the litigation process,
including discovery. This she has failed to do, despite
numerous attempts by Defendant and warnings from this court.
court further agrees with the Report's analysis of the
four-factor test for dismissal pursuant to Fed.R.Civ.P.
41(b). See Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920
(4th Cir. 1982) (To determine whether dismissal under Rule
41(b) is appropriate, the court considers “(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 a sanction less
drastic than dismissal.”). Plaintiff has a
responsibility to participate in discovery, yet has failed to
do so despite Defendant's myriad attempts to serve her at
different addresses and contact her about written discovery.
Defendant is prejudiced by this failure, as it cannot defend
its case without discovery from Plaintiff. Although she
complains she has a full-time job and does not have the time
to devote to a case “that initiated on or about 2013,
” Plaintiff brought this case and must participate. The
court agrees with the Report a less-drastic sanction is not
appropriate. Plaintiff is proceeding in forma pauperis, so
monetary sanctions are inappropriate, and she was
specifically warned of the consequences of her continued
failure to participate in discovery.
conducting a de novo review of the record, the applicable
law, the Report and Recommendation of the Magistrate Judge,
Plaintiff's objections, and Defendant's reply, the
court agrees with the Report's recommendation the case be
dismissed with prejudice as a discovery sanction.
Accordingly, the court adopts the Report by reference in this
Order. For the reasons stated herein and in the Report, this
matter is dismissed with prejudice. Defendant's motion
for award of fees and costs is denied due to Plaintiff's