United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. RAU, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant Cartier
Russell's Motion to Dismiss. (ECF No. 35). This matter
was referred to the Court pursuant to 28 U.S.C. § 636(b)
and District of Minnesota Local Rule 72.1. (ECF No. 34). For
the reasons stated below, the Court recommends granting
filed his Complaint on June 25, 2018. (Compl., ECF No. 1).
Plaintiff alleges he was sexually harassed when a Dakota
County Jail employee played music with homophobic lyrics.
(See Compl., at 7; see also Compl., Ex. 1
at 1). Plaintiff claims the sergeants and lieutenants he
complained to about this employee's conduct took no
action to investigate Plaintiff's complaint or discipline
the employee involved. (See Compl., at 7).
states that on November 20, 2017, Defendant Cartier Russell,
an officer at the Dakota County Jail, played “music at
a high volume with lyrics like ‘suck a dick faggot suck
a dick.'” (Compl., at 7). “During that time
an inmate told Officer Russell that he was gay and offended
by his music and Officer Russell told the inmate to
‘get the fuck away from him with that shit.'”
(Compl., at 7). Plaintiff claims he filed a “P.R.E.A.
[Prison Rape Elimination Act] complaint and a grievance on
the kiosk about Officer Russell's conduct” on the
same day. (Compl., at 7). Plaintiff alleges that later that
day, “Officer Russell yelled at me from across the room
from the top tier that I can't use the phone by the
Officers desk because of the P.R.E.A. kite I sent on
him.” (Compl., at 7). Plaintiff claims he “met
with Sergeant Peterson and she told me that she couldn't
do anything about the P.R.E.A. kite because it goes to
someone in administration.” (Compl., at 7). Plaintiff
states he “was on the phone making an attorney call
when Officer Russell turned off my phone . . . and he said
[it was] because I was too close to the Officers[']
Desk.” (Compl., at 7). Plaintiff asserts he met with
Fulks and Verby, lieutenants at the Dakota County Jail,
“and told them about Deputy Russell's [s]exual
harassment” but that “[t]hey chose to do nothing
to investigate my claims or discipline Deputy Russell,
Sergeant Peterson, or Corporal Byrd.” (Compl., at 7).
brought suit against Deputy Cartier Russell, Sergeant
Peterson, Corporal Byrd, Lieutenant Fulks, Lieutenant Verby,
and the Dakota County Sheriff's Office. (Compl., at 1).
Plaintiff's submission to the Court was labeled
“Complaint for Violation of Civil Rights under 42
U.S.C. § 1983” and Plaintiff later stated his
complaint is related to a grievance under the Prison Rape
Elimination Act (“PREA”). (Compl., at 1, 3).
Plaintiff sued all Defendants in their official and personal
capacity for one million dollars. (Compl., at
Only Plaintiff's claim against Defendant Russell in his
individual capacity remains.
Pretrial Schedule and Motion Practice
Russell answered the Complaint on September 24, 2018. (ECF
No. 14). The Court issued a pretrial scheduling order on
October 9, 2018. (ECF No. 17). The Court ordered discovery to
be completed by April 1, 2019. (ECF No. 17, at 1). The Court
also noted: “If any party fails to respond to a motion,
the failure to respond will be treated as a default and the
relief requested in the motion may be granted.” (ECF
No. 17, at 2).
Russell brought a motion to compel after Plaintiff failed to
respond to discovery. Plaintiff was served with
interrogatories and document requests on November 16, 2018.
(Amend. Timmerman Aff. ¶ 2, ECF No. 29). When Plaintiff
failed to respond, Defendant Russell wrote a letter to
Plaintiff on January 22, 2019, stating that Plaintiff's
failure to respond to the requested discovery by February 1,
2019 would result in the Court's involvement. (Amend.
Timmerman Aff. ¶ 6). After this deadline passed without
any communication from Plaintiff, Defendant Russell filed a
motion to compel. (ECF No. 20).
March 6, 2019, the Court granted the motion to compel and
ordered Plaintiff to respond in full to Defendant
Russell's interrogatories and document requests within 30
days. (ECF No. 32). The Court also noted:
Failure to comply with this Order may result in sanctions, up
to and including dismissal of this action with prejudice.
Fed.R.Civ.P. 379b)(2)(A). Should Plaintiff Heiderscheid fail
to comply with this Order, Defendant Russell may move to
dismiss this action as a discovery sanction, for failure to
comply with court orders, and for failure to prosecute.
(ECF No. 32).
Russell brings this motion to dismiss, as a discovery
sanction, because of Plaintiff's failure to respond to