Marsh v. Rhodes, 2017 U.S. App. LEXIS 25354 (6th Cir. Dec. 14, 2017):

ORDER

DeVonne Marsh, a former Michigan prisoner proceeding pro se, appeals the district court's order dismissing his 42 U.S.C. § 1983 action under Federal Rules of Civil Procedure 37 and 41. Additionally, he moves to sanction the defendants. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In July 2014, Marsh filed a complaint (later amended), alleging that Police Officer Leo Rhodes and the City of Detroit violated his constitutional rights in connection with the execution of an invalid search warrant at his house in Detroit, Michigan.

In November 2015, the defendants filed a motion to dismiss Marsh's complaint under Rules 37 and 41, stating that Marsh had failed to file initial disclosures, respond to interrogatories and a request for production of documents, and participate in his deposition. In March 2016, Marsh filed [*2]  a motion to sanction the defendants for misconduct they allegedly committed during litigation.

On April 21, 2016, a magistrate judge entered: (1) an order denying Marsh's motion for sanctions; and (2) a report recommending that the district court deny the defendants' motion to dismiss Marsh's complaint but order Marsh to respond to the defendants' discovery requests within fourteen days and to appear for a continued deposition in a timely fashion. In his report and recommendation, the magistrate judge noted that Marsh's failure to respond to the defendants' written discovery requests was inexcusable, especially because he offered no reason for his failure to do so, but that it would be improper to dismiss the case because Marsh did participate in his video deposition before technical difficulties ensued, and he had not yet been warned about the consequences for failing to comply with discovery or been given less drastic sanctions. However, the magistrate judge warned Marsh that if he continued to fail to comply with the defendants' discovery requests, his case could be dismissed.

Marsh filed a single set of objections that responded to both the magistrate judge's order denying his motion [*3]  for sanctions and the report and recommendation. He admitted that he failed to respond to the defendants' written discovery requests, but he did not explain why.

On July 19, 2016, the district court adopted the magistrate judge's report and recommendation over Marsh's objections. It ordered Marsh to comply with all written discovery requests within fourteen days (by July 15, 2016) and to provide deposition testimony at a time to be scheduled. Additionally, the court set a deadline for discovery to be completed--August 19, 2016. The court did not specifically address Marsh's objections to the order denying his motion for sanctions.

On July 14, 2016, Marsh filed a notice of appeal from the denial of his motion to sanction the defendants. While his appeal was pending before this court, the defendants filed a second motion to dismiss on August 5, 2016, stating that Marsh had failed to respond to their discovery requests in violation of the district court's July 1, 2016, order. Marsh did not respond to the defendants' motion.

On September 1, 2016, this court dismissed Marsh's appeal for lack of jurisdiction, noting that, among other things, the magistrate judge's order denying sanctions was [*4]  not a final decision under 28 U.S.C. § 1291.

In October 2016, the magistrate judge issued an order requiring Marsh to show cause why the defendants' second motion to dismiss should not be granted. In response, Marsh argued that the second motion to dismiss, filed on August 5, 2016, was invalid because the defendants' attorney in the district court had been replaced by different counsel in this court on August 1, 2016.

In November 2016, the magistrate judge recommended that the district court grant the defendants' second motion to dismiss. Marsh objected, arguing that the magistrate judge failed to consider: (1) his argument that the second motion to dismiss was invalid; and (2) that he had until August 19, 2016, which was the discovery deadline set by the district court, to respond to the defendants' discovery requests.

On January 25, 2017, the district court adopted the magistrate judge's report and recommendation over Marsh's objections. The court rejected as baseless Marsh's objection that the defendants' second motion to dismiss was invalid because the attorney who filed it in the district court was replaced by different counsel on appeal. Additionally, the court concluded that the August 19, 2016, [*5]  discovery deadline had no relevance to its order that Marsh comply with defendants' discovery requests by July 15, 2016. Accordingly, the court dismissed Marsh's case with prejudice. On the same day, the court issued a separate order that overruled Marsh's objections to the magistrate judge's April 21, 2016, order denying Marsh's motions for sanctions.

Marsh appeals, arguing that the district court erred in dismissing his complaint before he "had an opportunity to appeal . . . [the] order overruling his objections" to the magistrate judge's April 21, 2016, order denying his motion for sanctions.

A district court's decision to dismiss an action under Rules 37 and 41 is reviewed for abuse of discretion. See Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994) (Rule 37); Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 736 (6th Cir. 2008) (Rule 41). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law, or uses an erroneous legal standard." Schafer, 529 F.3d at 736 (quoting Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998)).

Rule 37(b)(2)(A)(v) permits a district court to dismiss an action where the party fails to obey discovery orders, and Rule 41(b) permits a party to move for dismissal where "the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." Under both rules, we consider the same four factors in [*6]  deciding whether dismissal is warranted:

   (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 dismissed party's failure to cooperate in discovery"; (3) "whether the dismissed party was warned that failure to cooperate could lead to dismissal"; and (4) "whether less drastic sanctions were imposed or considered before dismissal was ordered."

Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997) (quoting Reg'l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir. 1988)).

The district court did not abuse its discretion in dismissing Marsh's case, as all four factors weigh in favor of dismissal. First, by offering no good excuse for his failure to comply with the defendants' discovery requests and the court's order compelling him to respond, Marsh has not met his "burden of showing that his failure to comply was due to inability, not willfulness or bad faith." United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002). Second, as the district court noted, the defendants were prejudiced because they wasted both time and effort in pursuing discovery responses that they were legally entitled to receive. See Schafer, 529 F.3d at 737.

Third, the magistrate judge provided Marsh notice that his case could be dismissed if he continued to ignore the defendants' discovery requests. And lastly, the district [*7]  court first considered less drastic sanctions before dismissing Marsh's complaint, including compelling him to respond to the defendants' discovery requests within fourteen days, rather than granting the initial motion to dismiss outright. See Kovacic v. Tyco Valves & Controls, LP, 433 F. App'x 376, 383 (6th Cir. 2011) (noting that district court appeared to have considered less drastic sanctions where it "called a status conference sua sponte, providing counsel with an opportunity to explain the missed deadlines"). However, the court concluded that its only option was to dismiss Marsh's case as he continued to fail to respond to the defendants' discovery requests, even though it had been "more than five months" since he was ordered to do so.

Even on appeal, Marsh has failed to offer any justification for his failure to respond to the defendants' discovery requests. Instead, he appears to argue that the district court should have allowed him to appeal the denial of sanctions before dismissing his case. However, we have already rejected a similar argument, as we noted in Marsh's first appeal that a "pre-judgment order denying sanctions is not considered a final decision under 28 U.S.C. § 1291."

Additionally, Marsh moves for sanctions, arguing that the defendants committed fraud [*8]  in the district court when their attorney filed a second motion to dismiss his complaint on August 5, 2016, when that attorney had been replaced on August 1, 2016, by another attorney in the appeals case. This argument is simply baseless, as the attorney remained counsel in the district court case even though he was no longer counsel on appeal.

Accordingly, we DENY Marsh's motion for sanctions and AFFIRM the district court's judgment.