The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Memorandum-Decision and Order
Defendants Lester N. Wright et. al. (collectively, "Wright") object to the refusal of Magistrate Judge David E. Peebles to recommend dismissal of a complaint as a sanction for deposition abuse. See Dkt. Nos. 69 ("Peebles Order"), 70 (Wright Objections); see also 28 U.S.C. § 636(b)(1)(A), FED. R. CIV. P. 72(a); L.R. 72.1(b). Given the dual constraints imposed by Wright's limited objection and the standard of review, the objection is denied because the Peebles Order is not clearly erroneous or contrary to law. However, the district court referral to Judge Peebles is rescinded, and future proceedings are subject to this court's accompanying order. Plaintiff Leopoldo Carmona must comply with the terms and conditions of the order, or his amended complaint will be dismissed.
On July 25, 2002, Carmona, an inmate in a New York State correctional facility, filed a civil rights action alleging that Wright improperly disclosed mental health information and that he was deliberately indifferent to Carmona's medical needs. See Compl. and Amend. Compl., Dkt. Nos. 1, 29; see also 42 U.S.C. § 1983. By local rule, the action was co-assigned to District Judge Lawrence E. Kahn and Magistrate Judge David E. Peebles, and Judge Kahn referred the case to Judge Peebles to review applications and motions, and otherwise manage the litigation.*fn1 See L. R. 72.3(c), 28 U.S.C. § 636(a) & (b)(1)(B) & (C), and FED. R. CIV. P. 16.
On December 3, 2002, Judge Peebles issued a scheduling order setting discovery and dispositive motion deadlines. Those deadlines were stayed when Carmona moved to amend his complaint, and were reset in October 2003, with a discovery deadline of February 28, 2004. See Dkt. No. 52. In the interim, Carmona's place of incarceration changed several times, and as of August 2003, he was housed in Pennsylvania's Pike County Prison. See Dkt. No. 49.
While the record is unclear, it appears that Carmona was an illegal alien when he filed his action. Subsequently, he was released from New York's custody, but detained in connection with immigration removal proceedings. Later, he was apparently released on an immigration bond, and then filed a notice with Wright on October 24, 2003, indicating a Brooklyn, New York address.*fn2 See Dkt. No. 53.
On January 26, 2004, Wright wrote Carmona in Brooklyn, noticed his deposition for February 13, 2004, and requested that he produce all documents related to his civil rights allegations. The letter provided contact information if Carmona needed to reschedule. Carmona failed to contact defense counsel or appear. See Dkt. No. 53.Accordingly, on February 24, 2004, Wright sought an order from Judge Peebles compelling Carmona's deposition. In his request, Wright sought a firm deposition date of March 23, together with a judicial warning that Carmona's failure to appear would result in dismissal of his complaint. See id. In response, Judge Peebles issued an order on March 1, 2004, scheduling a telephone conference "to address plaintiff's alleged failure to cooperate with defendants' legitimate efforts to obtain pretrial discovery ...." See Peebles Ord., Dkt. No. 54 at 2.
On the day that Judge Peebles issued his order, Carmona filed another notice indicating that he now resided in the Dominican Republic. See Dkt. No. 56. Consequently, Judge Peebles issued an order to show cause rescheduling the telephone conference and further providing, inter alia:
The purpose of the conference will be to address defendants' request that plaintiff be required to appear within the Northern District of New York for deposition ... and ... whether plaintiff intends to conscientiously prosecute his claims ... and comply with the Federal Rules of Civil Procedure and the local rules ...
Plaintiff is admonished that in the event of his failure to fully comply with this order and to make himself available for the scheduled telephone conference, it is my intention to issue a recommendation to District Judge Gary L. Sharpe ... that plaintiff's case be dismissed for failure to prosecute and failure to comply with this court's legitimate directives ...
Peebles Ord., Dkt. No. 59.
On April 20, 2004, Judge Peebles conducted the conference, and Carmona appeared by telephone from the Dominican Republic. See Dkt. No. 61. Carmona told Judge Peebles that he had been deported, but that he intended "to seek asylum back into the United States so that he could pursue his law suit." Id. Judge Peebles told Carmona that he would give him time to pursue his asylum application within the constraints of new deadlines, and that he would issue an order compelling Carmona to appear for deposition four months later in Albany, New York. Id. He then issued a scheduling order setting an August 31 discovery cut-off date and a November 30, 2004, motion filing deadline. See Dkt. No. 62. He also issued a compulsion order, stating:
Based upon the circumstances presented to the court and discussed during a telephone conference ... it is hereby
ORDERED, that the plaintiff ... shall appear for deposition ... in person on August 18, 2004 ... in Albany, New York. As discussed during the conference, plaintiff is hereby advised that his failure to comply with this order and to demonstrate his ability to pursue this action and meet all of the applicable requirements of the Federal Rules of Civil Procedure and this court's rules will result in my issuance of a recommendation ... that plaintiff's complaint be dismissed, with prejudice, for failure to prosecute ....
Peebles Ord., Dkt. No. 63. The minutes of the conference, the actual language of Judge Peebles's order, and the record below are silent regarding Carmona's proffered excuse for ...