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BETHEA v. POTTER

United States District Court, Southern District of New York


January 31, 2003

STEPHANIE BETHEA, PLAINTIFF, AGAINST JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.

The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge.

MEMORANDUM AND ORDER

1. Pro se plaintiff Stephanie Bethea has brought these two lawsuits, alleging that her employer, the U.S. Postal Service, has subjected her to unequal terms and conditions of employment, and retaliation, on the basis of her psychiatric disability. By letter dated December 10, 2002, AUSA Andrew O'Toole asked me to dismiss plaintiff's lawsuits for failure to prosecute, pursuant to Rule 41 of the Federal Rules of Civil Procedure. As I directed in my order dated December 11, 2002, Ms. Bethea has submitted her response to AUSA O'Toole's letter. In letters dated January 7 and 30, 2003, AUSA O'Toole has renewed his request for dismissal.

2. I quote from Ms. Bethea's five-page letter, which was postmarked December 18, 2002 and enclosed other documents::

I am a lay person in need of representation from the American Postal Workers Union. I am a union member and have been for seventeen years, which entitles me to representation by the union. Attempting to process these cases are out of my ability and I respectfully am requesting assistance on my behalf. Please forward any and all paper work concerning the two (2) cases: #01 Civ. 3548[DFE] and 01 Civ. 11492[DFE]. . . . I have forwarded both case files to Mr. Nikolaidis and I have received the returned receipt. With "new" "address" listed at 275 7th Avenue, 23rd Floor, New York, New York 10001.
On 8/7/2002, I met with Mr. William Smith President of the A.P.W.U. I requested union representation regarding my EEO case #4A100-0043-02 filed on 2/23/2002. Mr. William Smith stated that he would give it to the union attorney Mr. Nikolaidis, for coverage. If there is need for contact with Mr. Smith regarding said representation, he can be reached at [phone number and address].
Your honor, I am forwarding Mr. O'Toole['s] December 10 letter [] to the A.P.W.U. attorney at 275 7th Avenue . . . for coverage. I am respectfully requesting hat you give Mr. Nikolaidis extended time to response to Mr. O'Toole['s] December 10 letter. He has both cases. . . . I would appreciate if you would give Mr. Nikolaidis time to review documents, before ruling.
3. My law clerk telephoned Mr. Nikolaidis and he told her that he does not, and will not, represent Ms. Bethea in these two lawsuits. Plaintiff seems to request that I contact Mr. Smith. I have no reason to contact Mr. Smith. Whatever arrangements he has made or not made with Mr. Nikolaidis are not my business.

4. Plaintiff's letter also contains her third request for appointed counsel. I have twice before denied this request, see my Orders dated April 30 and November 22, 2002. For the same reasons stated earlier, I again deny her request. I do not find her lawsuits to have any substance, and therefore I will not appoint any attorney for her. To the extent she is suggesting that I order Mr. Nikolaidis to be her lawyer, I have no jurisdiction to order him to take any case, and I will not interfere in whatever disputes she and the Union may be having about her assertion that her union membership entitles her to a free attorney to handle a lawsuit where she is the plaintiff. In short, Ms. Bethea must stop using her lack of an attorney as an excuse for not complying with her discovery obligations.

5. In the same December 18 letter, plaintiff also writes:

I again wish to renew "Strong Objections" against the defendant's application for acquisition of irrelevant/inappropriate records. Documents/Interrogatories requested for the time indicated (i.e. 1991-1996), and I.R.S. filings are themselves out of the scope, and have no bearing on the above mentioned proceeding before this court disregarded/denied.
I overrule plaintiff's objections. In my October 7 Order, I gave her a deadline of October 30 to respond to Defendant's First Set of Interrogatories and Document Requests and to provide the requested medical releases. According to AUSA O'Toole's December 10 letter, her only compliance has been to provide eight medical releases; she has provided no other documents, and she has answered none of the interrogatories. Ms. Bethea does not dispute this.

6. I will give plaintiff one last extension — until February 28, 2003 — to serve complete answers to each of the First Set of Interrogatories and to serve a copy of. each document that is in her control and is described in Defendant's First Set of Document Requests. As I warned her in my October 7 Order, if she does not comply, I will dismiss these two lawsuits pursuant to Rule 41 of the Federal Rules of Civil Procedure, for failure to prosecute and for failure to comply with a Court order.

7. All fact discovery must be commenced in time to be completed by May 30, 2003.

8. Any proposed expert witness must serve a report in strict compliance with Rule 26(a)(2)(B) — plaintiff's experts by May 30, 2003, defendant's experts by July 30, 2003. All expert discovery must be commenced in time to be completed by August 15, 2003.

9. Any dispositive motion must be served and filed by August 29, 2003.

20030131

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