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HARDING v. GOORD

July 1, 2003

KEITH HARDING, PLAINTIFF,
v.
GLENN S. GOORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ronald Ellis, United States District Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

On August 26, 2002, pro se plaintiff Keith Harding ("Harding") filed a complaint pursuant to 42 U.S.C. § 1983, alleging violations of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment, and state law negligence claims, against sixteen individual defendants. Because Harding has failed to pursue his claim by participating in discovery, and because he failed to comply with the Court's two orders to show cause, I respectfully recommend that the above-entitled action be DISMISSED with prejudice for failure to prosecute.

II. BACKGROUND

On January 7, 2003, defendants filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Harding filed a response to the motion on February 13, 2003, and defendants filed a reply one week thereafter. On January 14, 2003, the Court set a discovery deadline of May 16, 2003, and ordered that discovery continue pending resolution of the motion.

On April 7, 2003, defendants' counsel submitted a letter indicating that Harding failed to appear for a scheduled deposition on April 4, 2003. See Letter from Attorney Kimberly Ann Dasse, dated April 7, 2003. Defendants' counsel asserts that she called Harding's home at the time of the deposition and spoke to his mother, who said she did not know Harding's whereabouts. Id. Harding allegedly told counsel three days later that he had been home at the time, and had tried to contact her. Id. However, defendants' counsel did not receive any messages, nor did Harding provide a satisfactory explanation for his failure to appear. Id. According to defendants, Harding also failed to provide medical authorizations or responses to other document requests and interrogatories, which defendants needed prior to the deposition.

On April 14, 2003, the Court issued an Order directing Harding to show cause by April 25, 2003, why he should not be required to pay the costs associated with his failure to appear for the deposition. The Court also ordered Harding to submit to a deposition by May 8, 2003, and to produce discovery responses by the earlier of April 22, 2003, or one week prior to his deposition.

On April 23, 2003, defendants informed the Court that they rescheduled Harding's deposition for April 29, 2003. See Letter from Attorney Kimberly Ann Dasse, dated April 23, 2003. However, on or about April 21, 2003, Harding informed defendants that he would be unable to provide his medical records by the April 22, 2003 deadline, but indicated he expected to receive them on April 24, 2003. Id. Defendants consented to a two day delay, but noted to the Court that Harding did not respond to defendants' other outstanding requests, as per the Court's order. Id. In light of Harding's delay, the Court accommodated the parties by extending the discovery deadline to June 16, 2003, to allow defendants time to review Harding's records and responses once they arrived, and to produce an expert report. In an April 27, 2003 letter to the Court, Harding stated that he would be unable to provide the discovery responses by the April 22, 2003 deadline, due to "Bronx-Lebanon-Hospital Policy," but stated that with defendants' consent, he would produce responses by May 5, 2003. See Letter from Harding, dated April 27, 2003.

On May 20, 2003, defendants requested permission to move to dismiss the action pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. See Letter from Attorney Kimberly Ann Dasse, dated May 20, 2003. According to defendants, on April 28, 2003, Harding informed them that he had all medical records and discovery responses, but wanted to wait in order to send them all at once. Id. Defendants had scheduled his deposition for April 29, 2003, but reset it for May 15, 2003, based upon Harding's promise to produce the belated discovery. Id.

Defendants, however, have not received any responses to discovery requests. Harding also failed to appear at the May 15, 2003 deposition. Id. Defendants' counsel waited at the deposition site and called Harding's mother, who did not know his whereabouts. After forty-five minutes, counsel concluded that Harding was not going to appear. Id. Harding did not call to explain his absence, and defendants incurred another court reporter's fee. Id. He has not explained his delay in providing medical records, documents, and interrogatory responses, nor has he explained his failure to appear at two depositions. He also has not opposed any of the defendants' allegations.

On June 2, 2003, the Court issued a second Order for Harding to show cause by June 16, 2003, why he should not be sanctioned for costs incurred at his two cancelled depositions and for failure to respond to discovery requests. The Court also warned Harding that failure to comply with its Order would result in his case being dismissed for failure to prosecute. Harding has failed to respond to the Court's Order.

The Court has been unable to reach Harding by telephone, and did not receive a response to a May 23, 2003 message left with his mother at his home. On June 18, 2003, the Court placed another telephone call to his home and learned from his mother that she did in fact relay the Court's previous message to Harding. She also informed the Court that as of June 16, 2003, Harding had been taken to Riker's Island because of a probation violation.

II. ANALYSIS

Rule 41(b) of the Federal Rules of Civil Procedure provides, in relevant part, "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Under Rule 41(b), plaintiff has an obligation to diligently prosecute her case. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982); see also Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993). Thus, "[c]ompletely aside from his failure to comply with the order, a dismissal is justified for [plaintiffs] failure to prosecute at all." Chira v. Lockheed Aircraft Corp., ...


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