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Kitchen v. Grahn

United States District Court, W.D. Michigan, Southern Division

April 23, 2018

Michael Andrew Kitchen, # 189265, Plaintiff,
v.
Corey Grahn, et al., Defendants.

          HONORABLE PAUL L. MALONEY

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is 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.[1] (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.

         Applicable Standards

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).

         Proposed Findings of Fact

         On 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).

         Discussion

         Plaintiff 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).

         Plaintiff's 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).

         The 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 ...

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