REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF, U.S.D.J.:
The plaintiff, Julio Melecio, brings this action pursuant to 42 U.S.C. § 1983 against Captain Mark Daniels of the New York City Department of Correction, and defendants identified as Correction Officer ("C.O.") Brown and Correction Officer ("C.O.") Dudley. 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.
Mr. Melecio filed his complaint pro se in the Southern District of New York on October 28, 2003. On February 27, 2004, I denied his initial application for appointment of counsel without prejudice. (Order dated February 27, 2004). After a pretrial conference on June 23, 2004, I ordered that discovery be completed by December 31, 2004. (Order dated June 24, 2004). Mr. Melecio subsequently reapplied for appointment of counsel, and this time I granted the application, finding that he had now made a showing that his case had some likelihood of merit. (Memorandum and Order dated July 2, 2004). I also stayed discovery until pro bono counsel appeared on his behalf. However, a year passed and no attorney volunteered to take the case. Accordingly, I lifted the stay and ordered that all discovery be completed by November 30, 2005. (Order dated August 4, 2005).
The plaintiff's deposition was scheduled for October 31, 2005. Mr. Melecio failed to appear, and counsel for the defendants asked me to reschedule the deposition for November 17, 2005, and to order the plaintiff to attend. Additionally, counsel sought permission to move to dismiss Mr. Melecio's complaint for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure if he again did not appear to be deposed. (Letter of Prathyusha Reddy dated October 31, 2005). I granted the defendant's application. (Memorandum Endorsement dated November 8, 2005). The plaintiff failed to appear for his deposition on November 17, and I ordered that the plaintiff show cause in a written submission by December 15, 2005, why the complaint should not be dismissed for failure to prosecute pursuant to Rule 41(b). (Order To Show Cause dated November 30, 2005). The plaintiff failed to respond.
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.
The duration of the plaintiff's failure to comply has not been extensive, but his non-cooperation has been complete. Mr. Melecio was required to appear for deposition first on October 31 and then on November 17, 2005, but he ignored the initial notice and my subsequent order. Further, he has made no effort to respond to my November 30 Order to Show Cause despite my warning that failing to do so would result in dismissal for failure to prosecute.
Moreover, since Mr. Melecio 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) (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 plaintiff received explicit notice of the consequences of his failure to respond. First, in the October 31 letter, counsel for the defendant specifically indicated that he would move to dismiss the complaint should Mr. Melecio not appear at the November 17 deposition. Then, in my order to show cause issued on November 30, 2005, I warned the plaintiff that he would have to respond to the Court to avoid having his case dismissed.
The 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). Mr. Melecio's failure to appear at his deposition has resulted in the expiration of the discovery deadline and has rendered the defendants unable to explore relevant facts or the nature of Mr. Melecio's claim.
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. Melecio'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 ...