United States District Court, W.D. Michigan, Southern Division
HONORABLE PAUL L. MALONEY
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by a state prisoner pursuant to
42 U.S.C. 1983. The matter is before the Court on a motion by
defendant Corey Grahn seeking dismissal of all
plaintiff's claims against him under Rule 37(b)(2)
because plaintiff has not complied with the Court's
November 10, 2017, Order. (ECF No. 181). Plaintiff opposes
defendant's motion. (ECF No. 191). For the reasons stated
herein, I recommend that defendant's motion be granted
and that all plaintiff's claims against defendant Grahn
be dismissed with prejudice.
Under the Federal Rules of Civil Procedure, the Court has
discretion to impose a number of sanctions for violations of
its discovery orders. See Fed.R.Civ.P. 37(b)(2)(A). Rule
37(b) authorizes the imposition of sanctions for a
party's failure to obey an order requiring discovery.
Rule 37(b) sanctions are reviewed by the Court of Appeals
under an abuse-of-discretion standard. See Universal
Health Group v. Allstate Ins. Co., 703 F.3d 953, 955-56
(6th Cir. 2013); Freeland v. Amigo, 103 F.3d 1271,
1276 (6th Cir. 1997). The strongest sanction available in the
Court's arsenal for dealing with discovery abuses is the
entry of a default judgment against a defendant or an order
of dismissal against a plaintiff. See Grange Mut. Cas.
Co. v. Mack, 270 Fed.Appx. 372, 376 (6th Cir. 2008). In
determining the appropriate sanction, the Sixth Circuit has
directed trial courts to consider four factors: (1) whether
the party's failure to cooperate in discovery is due to
willfulness, bad faith, or fault; (2) whether the adversary
was prejudiced by the party's failure to cooperate in
discovery; (3) whether the party was warned that failure to
cooperate could lead to the sanction; and (4) whether less
drastic sanctions were first imposed or considered.
Universal Health Group, 703 F.3d at 956.
“Although no one factor is dispositive, dismissal is
proper if the record demonstrates delay or contumacious
conduct.” United States v. Reyes, 307 F.3d
451, 458 (6th Cir. 2002). “Contumacious conduct is
behavior that is perverse in resisting authority and
stubbornly disobedient.” Barron v. Univ. of
Mich., 613 Fed.Appx. 480, 484 (6th Cir. 2015) (citations
and quotations omitted).
Findings of Fact
November 10, 2017, the Court entered the following Order:
[P]laintiff is ordered to sign the release granting the
Corizon defendants access to all the requested MDOC records
regarding plaintiff from September 1, 2013, to the present.
Plaintiff is required to sign the release (ECF No. 79-3,
PageID.815) on or before November 27, 2017, with no
modification other than changing the beginning date to
September 1, 2013. On or before November 27, 2017, plaintiff
must mail the executed release to the attorney for the
Corizon defendants and file a proof of service of same with
the Court. If plaintiff fails to comply with any aspect of
this order, a report and recommendation will enter
recommending the dismissal of all plaintiff's claims
against the Corizon defendants with prejudice.
(Order at 1-2, ECF No. 153, PageID.1680-81).
has violated the Court's order and his actions rise to
the level of contumacious conduct. Plaintiff is simply wrong
when he claims that the only thing the Court ordered was his
signature. (Plf. Brief at 3-5, ECF No. 191 at
PageID.2012-14). When plaintiff omitted the required witness
signature, he did not sign the release in a manner
“granting the Corizon defendants access to all the
requested MDOC records regarding plaintiff from September 1,
2013, to the present.” (Order at 1, ECF No. 153,
PageID.1680) (emphasis added).
argument that the Court “did not directly address the
Mental Health records” and “never intended the
mental health records to be released” (Plf. Brief at 6,
ECF No. 191 at PageID.2015) is patently meritless. The Court
plainly ordered the release of both medical and mental health
records as specified on the release form. (Order at 1, ECF
No. 153, PageID.1680) (citing ECF No. 79-3, PageID.815).
Court ordered plaintiff not to make any modifications to the
scope of the release beyond “changing the beginning
date to September 1, 2013.” (Order at 1, ECF No. 153,
PageID.1680). In direct violation of the Court's order,
plaintiff added the limitations that an order signed by the
district judge was required and plaintiff added exclusions
regarding mental health records:
This authorization does not include the release of any Mental
Health Records, or any psychological reports or records
contained within Medical Records, pertaining to Michael A.
Kitchen (#189265). Further this request is valid only if
accompanied by an order signed by District ...