BROWN

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TIMOTHY E. BROWN,

Plaintiff,

v. Case No.: 4:26cv44-MW/MAF

PUBLIX SUPERMARKET 1427,

Defendant.

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ORDER ACCEPTING IN PART AND REJECTING IN PART

REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge's Report and

Recommendation, ECF No. 33, and has also reviewed de novo Plaintiff’s objections,

ECF No. 35. As noted in the report and recommendation, Plaintiff has repeatedly

failed to comply with his discovery obligations, including failing to comply with a

court Order compelling discovery, ECF No. 23. Plaintiff’s common refrain,

however, is that his failure to comply is not in bad faith and that he is merely ignorant

of his responsibilities as a pro se plaintiff. Moreover, Plaintiff’s objections assert he

has attempted in good faith to comply with discovery, including by appearing and

participating at depositions on July 9, 2026 (after the pending motion for sanctions

was filed). ECF No. 35 at 2. Of course, his assertion of acting in good faith is

undermined by his conduct in failing to comply with his obligations and a clear order

compelling discovery, which explained his obligations.

Although the Magistrate Judge understandably recommends dismissal with

prejudice as a sanction for Plaintiff’s obstinate failure to comply with his discovery

obligations and a court Order regarding the same, this is “the most severe Rule 37

sanction and is not favored.” Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993).

But, unlike Phipps, this is not a case where the plaintiff flat-out expressly refused to

comply with discovery, including appearing at his own deposition. See id. (“Then

plaintiff declared, after he had been flatly threatened with dismissal, that he ‘had no

intention’ of appearing at his own deposition or at discovery conferences.”). While

a close call, this Court believes a lesser sanction is appropriate rather than the

dismissal with prejudice that the Magistrate Judge recommends.

Accordingly,

IT IS ORDERED:

The report and recommendation, ECF No. 33, is accepted in part and

rejected in part, as this Court’s opinion. Defendant’s motion for sanctions, ECF

No. 31, is GRANTED in part and DENIED in part. The motion is GRANTED

insofar as this Court is ordering sanctions for Plaintiff’s continued noncompliance

with his discovery obligations but DENIED to the extent that Defendant requests

dismissal with prejudice. Instead, Plaintiff is prohibited from relying on any witness,

document, category of damages, computation of damages, medical provider,

employment information, social media evidence, prior proceeding, or other

information that Plaintiff failed to disclose in discovery or his Rule 26(a)(1)

disclosures. In addition, it is deemed established, for the purposes of this action, that

Plaintiff has no documents responsive to Defendant’s First Request for Production

except those already properly produced to Defendant. Plaintiff is prohibited from

introducing at summary judgment, hearing, or trial any document or information not

properly produced to Defendant by the Court-ordered deadline.

Finally, this action is STAYED until Plaintiff pays the $439.00 sanction

previously imposed, and which is due on July 31, 2026. see ECF No 30. Plaintiff

may purge the stay sooner upon payment of the sanction. This Court leaves the

question of any further extension for the payment deadline to the Magistrate Judge’s

consideration, see ECF No. 34 (pending motion for extension of deadline to pay

sanction).

This matter is referred back to the Magistrate Judge for further proceedings.

SO ORDERED on July 24, 2026.

s/Mark E. Walker ____

United States District Judge