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
REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, U.S.D.J.:
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
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
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
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
(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
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.