United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. RAU, UNITED STATES MAGISTRATE JUDGE.
above-captioned case comes before the undersigned on
Defendants Hennepin County Human Services
(“HCHS”) and Public Health Department and Rex A.
Holzemer's (“County Defendants”) Motion to
Dismiss Pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v) [Doc. No.
102] and Defendants Minnesota Department of Human Services
(“DHS”) and Emily Johnson Piper's
(“State Defendants”) Motion to Dismiss Pursuant
to Fed.R.Civ.P. 37(b)(2)(A)(v) [Doc. No. 109] (collectively
“Motions to Dismiss”). This matter has been
referred for the resolution of pretrial matters pursuant to
28 U.S.C § 636 and District of Minnesota Local Rule
72.1. See (Order of Reference) [Doc. No. 120]. For
the reasons stated below, the Court recommends that the
Motions to Dismiss be granted and this case be dismissed with
Eric Wong (“Wong”) brought suit against both
County and State Defendants in December of 2013, alleging
claims under: Title II of the Americans with Disabilities Act
(“ADA”); section 504 of the Rehabilitation Act of
1973, 29 U.S.C. §§ 706, 794 (“RA”); the
Fourteenth Amendment of the United States Constitution; 42
U.S.C. § 1983; and judicial review of state
administrative decisions under Minnesota Statutes §
256.045, subdivision 7. See (Compl.) [Doc. No. 1 at
21-29]. Wong's Complaint was filed by his attorney at the
time, Paul Hansmeier (“Hansmeier”). See
(id. at 33).
September 29, 2014, the Honorable Judge Donovan W. Frank
dismissed Wong's complaint with prejudice. (Mem. Op.
& Order Dated September 26, 2014) [Doc. No. 33]. Wong
appealed, and the Eight Circuit affirmed in part and vacated
in part Judge Frank's decision and remanded for further
consideration. (Op. of the United States Ct. of Appeals)
[Doc. No. 38]. Consistent with the Eighth Circuit's
opinion, Judge Frank issued a subsequent order on October 26,
2016, holding that Wong's claims for injunctive relief
against defendants Johnson and Holzemer remained as did
Wong's claims under the RA against all Defendants. (Mem.
Op. & Order Dated Oct. 26, 2016, “Oct. 2016
Order”) [Doc. No. 48 at 16-19, 22]. Judge Frank also
exercised supplemental jurisdiction over Wong's claim
under Minnesota Statutes § 256.045, subdivision 7.
(Id. at 20-21, 22). Judge Frank dismissed all other
claims with prejudice, including claims under the ADA for
monetary damages against all defendants and for injunctive
relief against the DHS and HCHS. (Id. at 19, 22).
intervening time between the Eight Circuit's decision and
Judge Frank's October 2016 Order, Hansmeier was
suspended, leaving Wong unrepresented in this matter. Order
of Suspension Dated September 15, 2016, In Re Paul Robert
Hansmeier, 16-mc-53 (JRT) [Doc. No. 1].
first alerted the Court that he was having trouble obtaining
substitute counsel by letter. See (Letter Dated Jan.
4, 2017) [Doc. No. 66]. Wong asserted that he is
wheelchair-bound and has difficulty leaving the house because
of pain associated with being moved. (Id. ¶ 4).
Wong also asserted that he was in the process of retaining a
new attorney, but that he “intend[ed] to continue this
case and will not drop it for any reason even if [he is]
forced to continue the case pro se.” (Id.
¶¶ 2, 3). On this basis, the Court proceeded to
conduct its pretrial activities, but was stymied by
Wong's failure to participate. See, e.g.,
(Minute Entry Dated Feb. 8, 2017) [Doc. No. 69]; (Pretrial
Scheduling Order) [Doc. No. 70]. For example, the Court
rescheduled a pretrial conference because neither the County
Defendants nor State Defendants could reach Wong in order to
conduct meet and confer efforts prior to the pretrial
conference. (Order Dated Dec. 29, 2016) [Doc. No. 65 at 1].
As part of the Order rescheduling the pretrial conference,
the Court allowed Wong to attend telephonically. See
(id. at 2). Notwithstanding the additional
accommodations made by the Court, Wong did not appear at the
rescheduled pretrial conference. See (Pretrial
Scheduling Order at 1-2) (detailing the steps the Court
undertook to enable Wong's participation and discussing
his general failure to participate). Because of Wong's
failure to participate in the litigation and on the basis of
his assertion that he intended to continue pro se,
the Court requested that “[i]f Mr. Wong would like the
Court to consider whether appointment of counsel is
warranted, Mr. Wong must do so by formal motion, including
exhibits and sworn statements as needed, consistent with the
Local Rules.” (Text Only Entry Dated Mar. 17, 2017)
[Doc. No. 72].
months later, the Court received a letter from Wong's
mother-who is not an attorney-writing on behalf of her son.
(Letter Dated July 12, 2017) [Doc. No. 75]. In her letter she
asserted that “because of his medical condition, [Wong]
cannot prepare and bring a formal motion asking for a
court-appointed attorney.” (Id.). Next, County
Defendants and State Defendants each filed respective motions
to compel discovery. See (County Defs.' Mot. To
Compel) [Doc. No. 76]; (State Defs.' Mot. to Compel
Discovery) [Doc. No. 84]. As part of Defendants' motions,
they attested that Wong failed to respond to their meet and
confer efforts. See (LR 7.1(a) Meet & Confer
Statement) [Doc. No. 80]; (State Defs.' Compliance With
Obligations to Meet & Confer Under LR 7.1(a)) [Doc. No.
thereafter-and despite the representation to the Court by
Wong's mother-on August 21, 2017, Wong filed a Motion to
Appoint Counsel. (Mot. to Appoint Counsel) [Doc. No. 92].
Finding that Wong failed to substantiate his claims that
appointment of counsel was warranted, this Court denied his
motion. (Order Dated Oct. 10, 2017, “Oct. 2017
Order”) [Doc. No. 99]. The Court also noticed a hearing
on Defendants' motions to compel, allowing Wong to appear
telephonically. See (Text Only Notice Dated Sept. 1,
2017) [Doc. No. 98].
hearing on the motions to compel, Wong appeared by phone but
provided no arguments related to the Defendants'
respective Motions to Compel. Ruling from the bench, this
Court instructed that Wong comply with Defendants discovery
requests within thirty (30) days and that if Wong failed to
do so, the Court would entertain motions for sanctions,
including dismissal. See (Text Only Order Dated Oct.
18, 2017) [Doc. No. 101].
never provided discovery and the County Defendants and State
Defendants filed their respective Motions to Dismiss. (Mots.
to Dismiss). Both the County Defendants and State Defendants
argue that Wong's willful disregard of the Court's
discovery orders and the prejudice inherent in their
inability to defend themselves without the information in
Wong's possession justify dismissal under the
circumstances. See generally (Mem. of Law in Supp.
of Mot. to Dismiss Pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v),
“County Defs.' Mem. in Supp.”) [Doc. No.
105]; (State Defs.' Mem. of Law in Supp. of Mot. to
Dismiss Pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v), “State
Defs.' Mem. in Supp.”) [Doc. No. 112].
never responded to Defendants' Motions to Dismiss,
despite this Court giving Wong an extension to respond
sua sponte. See (Text Only Order Dated Dec.
20, 2017) [Doc. No. 118] (allowing Wong to respond to both
Motions to Dismiss on or before January 31, 2018). Instead,
at the eleventh hour, Wong's mother filed a letter with
the Court stating “Eric Wong currently is not well
enough to respond.” (Letter Dated Jan. 31, 2018) [Doc.