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HALL v. FLYNN

July 26, 1993

ROBERT L. HALL, Plaintiff,
v.
LAWRENCE B. FLYNN, et al., Defendants.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 DECISION and ORDER

 I. FACTS

 The court reviews a June 18, 1993 Report-Recommendation issued by Magistrate Judge Ralph W. Smith, Jr. recommending that plaintiff's complaint be dismissed in its entirety.

 Plaintiff, a former employee of the New York State Department of Environmental Conservation, filed this civil rights complaint on July 1, 1992. By order of this court dated May 20, 1993 (the "Order"), a discovery and Rule 16 conference was scheduled for June 17, 1993 at 4:00 P.M. before Magistrate Judge Smith. The Order also required plaintiff to provide a copy of his motion to compel discovery to counsel for the City of Schenectady (the "City") by noon on June 10, 1993.

 In the Order scheduling the conference, plaintiff was advised that his failure to appear could result in dismissal of his complaint. Furthermore, two separate defense counsel informed Magistrate Judge Smith that they had had telephone discussions with plaintiff regarding his obligation to appear.

 Plaintiff failed to appear at the aforementioned conference or contact the chambers of Magistrate Judge Smith to explain his inability to do so. Magistrate Judge Smith's Report-Recommendation also indicated that plaintiff failed to provide a copy of a motion to compel discovery to the City as required by the Order. Magistrate Judge Smith has recommended that plaintiff's complaint be dismissed in its entirety pursuant to Fed.R.Civ.P. 16(f) and 37(b)(2)(C) "in view of plaintiff's continuing and contemptuous refusal to comply with court procedures and orders and in light of the apparent frivolous nature of the complaint . . .".

 Plaintiff filed timely objections to the Report-Recommendation. Plaintiff asserts (1) that he did, in fact, provide a copy of the aforementioned discovery motion to counsel for the City of Schenectady; (2) that he did not fail to attend the June 17, 1993 Rule 16 conference, inasmuch as the conference was rescheduled for July 8, 1993; and (3) that "I did not have a copy of the May 20, 1993 order in my files, so I asked the clerk to provide me with a copy on June 23, 1993." Pltf. Objections P 4.

 Although plaintiff's first objection is legitimate, the court finds the latter two to be without merit. Accordingly, the Report-Recommendation is adopted and plaintiff's complaint is dismissed.

 II. DISCUSSION

 There is no dispute that plaintiff provided a copy of his motion to compel discovery to counsel for the City of Schenectady. Apparently, counsel for the City inadvertently overlooked plaintiff's motion papers because they were attached to several other motions submitted by plaintiff. Van Norden Letter 05/18/93. Thus, sanctions against plaintiff are not warranted on that basis.

 Plaintiff also claims that he did not appear at the June 17, 1993 conference because he received a notice, dated June 1, 1993, rescheduling the same. Thus, plaintiff asserts that the conference was to actually take place on July 8, 1993. The surrounding facts, however, belie this assertion.

 Significantly, the rescheduling notice to which plaintiff refers pertains not to the instant action, but to another of plaintiff's pending civil rights actions: Hall v. Dworkin, 829 F. Supp. 1403. Plaintiff would have the court believe that he overlooked this fact, thereby mistaking the two actions. Without presupposing plaintiff's disingenuousness, suffice it to say that the court places the burden squarely on plaintiff to organize and discriminate between the papers attendant to his many pending civil rights actions. In so doing, the court does not ignore that many pro se plaintiff's are unfamiliar with the formalities of legal practice and procedure and hence must be held to a lesser standard of competence. To be sure, the court does not now hold plaintiff to a higher standard than other pro se plaintiffs. This pro se plaintiff, however, who is all too familiar with the litigation process and the rules of this court, and who continues to demonstrate a lack of due diligence in the face of clear warnings, will only be afforded so much latitude. Thus, although the court is normally inclined to grant the typical pro se litigant all benefit of doubt, the court declines to do so here.

 In addition, plaintiff has requested countless adjournments and extensions throughout the course of his litigation in this jurisdiction, with the court repeatedly bending over backwards to afford him substantial deference due to his pro se status. No more. On this occasion plaintiff shall be held ...


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