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United States District Court, S.D. New York

April 8, 2005.

JAMES COLE, Plaintiff,
MR. ERNEST EDWARDS, Superintendent Otisville Correctional Facility, MR. GLENN GOORD, Commissioner; Department of Correctional Services; T.G. EGEN, Director; Central Office Grievance Committee; DOCTOR SARRICK, Medical Staff Otisville Correctional Facility; MRS. H. MILLER, Medical Staff/N.A. Otisville Correctional Facility, Defendants.

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge



James Cole, a former inmate of the Otisville Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983 against Glenn Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"), and T.G. Eagen, Director of the DOCS Central Grievance Committee.*fn1 The defendants now move pursuant to Rules 41(b) and 37(b)(2)(C) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to prosecute and as a sanction for violating court orders relating to discovery.

  For the reasons set forth below, I recommend that the defendants' motion be granted.


  The plaintiff was a prisoner at the Otisville Correctional Facility ("OCF") in Otisville, New York in 1997 when OCF's drinking water became contaminated. (Complaint, Statement of Claim, ¶ 2). In response to that situation, OCF supplanted its regular water supply with bottled water. (Statement of Claim, ¶ 2). Eventually, having concluded that the original problem was solved, OCF resumed use of its traditional water supply. (Statement of Claim, ¶ 3). However, Mr. Cole alleges that the contamination persisted and that he became infected with harmful bacteria, resulting in long-term gastrointestinal injury. (Statement of Claim, ¶¶ 3, 15). The plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to his health in that they failed to prevent the contamination and then provided inadequate medical treatment. (Statement of Claim, ¶ 8).

  Mr. Cole, along with eight other plaintiffs, first filed a lawsuit in the Southern District of New York in August 2001. Mr. Cole was dismissed from that case, however, for failing to exhaust available administrative remedies as required by the Prison Litigation Reform Act. Cherry v. Edwards, 01 Civ. 7886 (Memorandum Order dated Nov. 18, 2002). The plaintiff subsequently filed the instant action in the Northern District of New York on February 18, 2003. When the defendants moved to dismiss, Mr. Cole filed yet another identical action, in the Southern District of New York. Cole v. Edwards, 03 Civ. 5214. The instant case was then transferred to this Court, and the later-filed action was dismissed as duplicative.

  In August 2004, the defendants served interrogatories on Mr. Cole in the instant case, but he failed to respond and later explained that he had never received the requests. Following a September 27, 2004 pretrial conference, I ordered that the defendants re-serve the interrogatories and that the plaintiff respond to the outstanding requests by October 22, 2004. (Order dated Sept. 27, 2004). The interrogatories were again served but the plaintiff did not comply with my order, and on December 22, 2004, the defendants sent a letter requesting the Court to issue an order compelling Mr. Cole to produce the delinquent responses. I extended Mr. Cole's deadline to January 10, 2005, and cautioned that failure to respond would result in dismissal. (Memorandum Endorsement dated Dec. 27, 2004). The plaintiff failed to correspond with either the Court or the defendants during this period, and, on January 19, 2005, the defendants again requested that the Court dismiss the case for failure to prosecute and for failure to comply with the Court's orders. In a Memorandum Endorsement dated January 19, 2005 I again extended the deadline, this time to January 31, 2005. The plaintiff still has not responded.


  A. Failure to Prosecute

  Rule 16(f) of the Federal Rules of Civil Procedure provides that "[i]f a party . . . fails to obey a scheduling or pretrial order . . . the judge . . . may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37 (b) (2) (B), (C), (D)." Rule 37 (b) (2) (C), in turn, authorizes dismissal of the action as a sanction. Rule 41(b) provides in pertinent part that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant."

  Dismissal is a harsh remedy that is only appropriate in extreme circumstances. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998); Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993). When the plaintiff is proceeding pro se, the court should be particularly hesitant to dismiss the action on the basis of a failure to follow proper procedures. See Spencer, 139 F.3d at 112. Nevertheless, "litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).

  In determining whether dismissal is appropriate, courts consider:

(1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Spencer, 139 F.3d at 112-13 (citations omitted); see also Peart, 992 F.2d at 461 (citations omitted).

  The duration of the delay in this case is substantial. It has been more than five months since the defendants served their first set of interrogatories, and it has been more than three months since I ordered the plaintiff to respond.

  Mr. Cole has received explicit notice of the consequences of his failure to cooperate in discovery. In my Order dated December 27, 2004, I advised the plaintiff that failure to comply would result in dismissal. The plaintiff responded to my warning by ignoring the orders and discontinuing communication with the defendants and the Court. Moreover, since Mr. Cole has failed to respond to my orders and the defendants' motion to dismiss, he has also failed to dispute that he was notified of the consequences of his continued failure to cooperate in discovery. See Dodson v. Runyon, 957 F.Supp. 465, 470 (S.D.N.Y. 1997) (pro se plaintiff failed to respond to motion to dismiss and so failed to dispute that he was notified of consequences of failure to prosecute), aff'd, 152 F.3d 917 (2d Cir. 1998).

  The significant delay created by the plaintiff's refusal to cooperate with discovery requests is clearly prejudicial. See Mathews v. U.S. Shoe Corp., 176 F.R.D. 442, 445 (W.D.N.Y. 1997) (case dismissed where pro se plaintiff made no effort to comply with defendant's discovery requests). The plaintiff's noncompliance has left unanswered the question of how the defendants were personally involved in the plaintiff's injury. Such noncompliance has left the defendants unable to take any substantial steps to prepare for trial, yet still imposing upon them the costs of organizing and preserving evidence dating to 1997. A balancing between the Court's interest in efficient adjudication and the plaintiff's interest in having his day in court must, in this instance, favor dismissal. While one case more or less has little impact on the Court's docket, Mr. Cole's claim on the Court's time is undermined by his failure to comply with his discovery obligations under the Federal Rules. See Lediju v. New York City Department of Sanitation, 173 F.R.D. 105, 111-12 (S.D.N.Y. 1997); Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 67 (S.D.N.Y. 1989).

  No sanction short of dismissal would be appropriate. In a case where a party's delay has caused the adversary only to incur expenses, monetary sanctions may be sufficient. But here, in addition to incurring the cost of moving to compel discovery, the defendants have also suffered prejudice in their ability to prepare for trial. And, while an adverse inference might in some circumstances be a sufficient remedy, that is not the case here. The discovery that the plaintiff has failed to produce goes to the heart of his case. Consequently, while an adverse inference would ultimately be fatal to his claims, it would be unfair to require the defendants to expend still more resources to reach the inevitable result of dismissal.


  For the reasons set forth above, I recommend that the defendants' motion be granted and the action be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable P. Kevin Castel, Room 2260, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

  Respectfully submitted.

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