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Heiderscheid v. Russell

United States District Court, D. Minnesota

October 15, 2019

Andrew Erik Heidersheid, Plaintiff,
v.
Deputy Cartier Russell, in his individual capacity, Defendant.

          REPORT AND RECOMMENDATION

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         This 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 Defendant's motion.

         I. BACKGROUND

         A. The Complaint

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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 5).[1] Only Plaintiff's claim against Defendant Russell in his individual capacity remains.

         B. Pretrial Schedule and Motion Practice

         Defendant 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).

         Defendant 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).

         On 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).

         Defendant Russell brings this motion to dismiss, as a discovery sanction, because of Plaintiff's failure to respond to the ...


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