Appeal from opinion and order of the United States District Court for the Southern District of New York, Sweet, J., dismissing pro se plaintiff's complaint. The dismissal was ordered pursuant to Fed. R.Civ. P. 37(d).
Before MANSFIELD, MESKILL and CARDAMONE, Circuit Judges.
The plaintiff in this action, Richard Salahuddin, appeals from an opinion and order of the United States District Court for the Southern District of New York that relied on Rule 37(d) of the Federal Rules of Civil Procedure to dismiss Salahuddin's claim for relief under 42 U.S.C. § 1983 (1982).
Salahuddin initiated this action in January 1983. On April 8, 1983, the district court ordered defendants to answer the complaint within thirty days pursuant to 28 U.S.C. § 1915(d)(1982). After some delay in the service of process, defendants filed their answer on August 4, 1983. On August 11, the district court entered the first of what were to be many pretrial discovery orders.
Plaintiff then filed his interrogatories. Although many of them may have been objectionable, one of them was not. It requested defendant Harris to
give the full and complete details for each and every disciplinary report plaintiff received at the GCF [Greenhaven Correctional Facility] during his last incarceration [sic] ...? give the full identity of each agents [sic] that issued a disciplinary report against plaint[sic], the date and time of incident, the date and time report was actually made out and issued to plaintiff?
App. at 30. Defendants moved to extend the discovery deadline twice, once in October and once in December. Their present counsel was appointed to the case in January 1984. Six days after he was assigned to the case, defendant's counsel moved for another extension of the discovery deadline and moved for an order under Federal Rules of Civil Procedure 30(a) to take Salahuddin's deposition. App. at 180.
During this entire period Salahuddin's interrogatories remained unanswered. he had moved to compel discovery.
The district court ordered that Salahuddin's deposition be taken. The deposition was scheduled at the Auburn Correctional Facility on March 6, 1984. The district court placed some conditions on the taking of the deposition, non of which is relevant to this appeal. At the time the Rule 30(a) order was entered, defendants' attorney knew that Salahuddin had moved to compel discovery and therefore the attorney presumably knew that the failure to answer Salahuddin's interrogatories would be a source of dispute in the litigation. See App. at 58.
Salahuddin received notice of the deposition and had some correspondence with defendants' attorney. In a letter that defendants' attorney received the same day that he departed New York City for Auburn, New York to take Salahuddin's deposition, Salahuddin told the attorney that he might be late for the deposition and added "I'll not keep you waiting to long, certainly not as long as I've been waiting." App. at 197.
On the morning of March 6, 1984 Salahuddin appeared at the deposition and answered defendants' questions for approximately two hours. Defendants' attorney was able, with difficulty, to have Salahuddin authenticate several documents related to the suit. Salahuddin had implicitly requested some of these same documents in his interrogatories to defendant Harris quoted above. Some of the documents that Salahuddin was asked to authenticate were the same documents that he had been requested to produce at the deposition. See App. at 124. Compare App. at 72 with App. 195 P2. Defendants' ...