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LASORSA v. MENIFEE

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


June 8, 1998

NICHOLAS LASORSA, Petitioner, against FREDERICK MENIFEE, Respondent.

The opinion of the court was delivered by: SOTOMAYOR

Hon. HAROLD BARR JR., District Judge:

 Defendants move to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 37(d) ("Rule 37(d)"). Rule 37(d) provides in relevant part that "if a party . . . fails . . . to serve a written response to a request for inspection" the action may be dismissed. Fed. R. Civ. 37(d). The plaintiffs did respond in writing to the defendants' request for the production of documents. See Pl.'s Ex. E. Consequently, Rule 37(d) does not provide any basis for dismissal.

 Alternatively, defendants move to dismiss the complaint or preclude evidence pursuant to Fed. R. Civ. P. 37(b)(2)(C) ("Rule 37(b)(2)(C)"). Rule 37(b)(2)(C) default judgment where "a party fails to obey an order to provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(C). Although necessary to ensure that Rule 37 is a credible deterrent, "preclusion of evidence and disminnal of [an] action are harsh remedies [that] should be imposed only in rare situations." Update ARt, Inc. v. Modiin Publishing, LTD., 843 F.2d 67, 71 (2d Cir. 1988). Any sanction issued pursuant to Rule 37(b)(2)(C) must be just an drelated to the claim addressed by the discovery order. See Daval Street Products v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir. 1991). The defendant concede that the plaintiffs have provided a "significant volume of documents." Scanfini Reply Aff. P 2. However, according to the defendants, the plaintiffs have failed to produce the vast majority of the most pertinent documents requested. Id. In support of this assertion, the defendants call attentionto allegations by the plaintiffs' former counsel that the plaintiffs' failure to produce certain documents was intentional. to say the least, I find these allegations very troubling. Nonetheless, I decline at this juncture to impose the "harsh" and "rare" sanctions of preclusion of evidence or dismissal of the complaint. Accordingly, the motion to dismiss or preclude evidence pursuant to Rule 37(b)(2)(C) is denied. *fn1" Keep in mind, however, failure to comply with any future discovery orders will be dealt with severely.

 BOP has now done so and in its amended return has disavowed any reliance on LaSorsa's having been convicted of a "crime of violence." Instead, BOP now asserts that LaSorsa is being denied early release because, in an exercise of its discretion, BOP has decided not to grant early release to prisoners like LaSorsa who, despite having successfully completed a drug treatment program, received a two-level sentence enhancement for possession of a firearm. See Declaration of Patricia R. Griffin, Ph.D. (included with the Amended Return). As explained by the Court in its earlier Opinion, although 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58 prevent BOP from granting early release to a prisoner convicted of a crime of violence, neither the statute nor the regulation in any way limit BOP's discretion to deny early release to prisoners otherwise eligible for release. See LaSorsa, F. Supp. at , 1998 U.S. Dist. LEXIS 6296, at *10-15, 1998 WL 226189, at *4-6. BOP's decision to deny early release to those prisoners receiving a two-level enhancement for weapons possession is a rational exercise of that discretion.

 LaSorsa responds that in the Amended Return, BOP states that it is relying on the version of BOP Program Statement 5162.02 which purports to define the term "crime of violence" in precisely the way held by this Court to be impermissible. The Court agrees that BOP's reference to this document is unnecessarily confusing, particularly in light of the fact that a more recent version of this Program Statement, one which disavows any reliance on defining "crime of violence," would seem to be the relevant document for evaluating LaSorsa's request for release. Any ambiguity in this reference, however, is resolved by BOP's unequivocal statement that it "does not draw any conclusion regarding whether such circumstances constitute a crime of violence" but rather that the decision is "based on the BOP's policy, consistent with . . . the discretion afforded to BOP, to deny early release to an individual whose conviction for drug possession with intent to distribute is accompanied by possession of a firearm." Decl. of Patricia Griffin, P7. As noted, such a policy is within the discretion given to BOP by both the statute and the regulation. Petitioner's continued incarceration therefore not being unlawful, the petition for a writ of habeas corpus is hereby DENIED.

 SO ORDERED.

 Dated: New York, New York

 June 8, 1998

 SONIA SOTOMAYOR

 U.S.D.J.


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