The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
In this civil rights complaint, plaintiff alleges that he was assaulted and then denied proper medical care in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Dkt. No. 1). Plaintiff also initially alleged that defendant Julie Daniels, the Inmate Grievance Program (IGP) Supervisor, did not properly process plaintiff's grievance regarding the alleged assault. (Dkt. No. 1 at ¶¶ 13-14). On June 29, 2007, this Court granted defendant Daniels's motion to dismiss this action against her. (Dkt. No. 38).
Presently before this Court is a motion to dismiss filed on behalf of the remaining defendants pursuant to FED. R. CIV. P. 37(b). (Dkt. No. 37). Defendants request dismissal as a sanction for plaintiff's failure to participate in, and his behavior during, his deposition. (Dkt. No. 37). Defendants also request reimbursement for expenses in the amount of $2,026.82. (Dkt. No. 37-9 Memorandum of Law at 8). Plaintiff has not responded to the motion, despite being given an additional opportunity to do so by this Court. (Dkt. No. 41). For the following reasons, this Court will deny defendants' motion to dismiss without prejudice to renewal within 30 days, after defendants obtain additional information regarding plaintiff's mental condition at the time of the attempted deposition as well as after the deposition.
This Court will only briefly review the facts against the remaining defendants as alleged in the complaint for clarity. Plaintiff alleges that on February 12, 2006, he requested "emergency sick call." Compl. ¶ 1 (Dkt. No. 1). Plaintiff claims that twenty minutes later, defendant Ralston*fn1 arrived with a stretcher, but that when plaintiff arrived at the hospital, he was placed in an examination room and assaulted by defendants Ralston, Hover, Brown, and Mulcahy. Compl. ¶¶ 2-3. Plaintiff claims that defendants Nurse Harris and Physician's Assistant Nesmith stood nearby and watched the assault. Compl. ¶ 3.
Plaintiff states that he was later escorted back to his housing unit, but was again assaulted by defendants Ralston, Beebe, and Mulligan. Comp. ¶¶ 5-6. Plaintiff claims that defendant Murray arrived after the assault and "called it a 'use of force.'" Compl. ¶ 7. Defendant Murray then ordered a "spit mask," but plaintiff claims that the mask was put on incorrectly so that it acted as a blindfold. Compl. ¶¶ 7-8. Plaintiff then alleges that he was escorted to another room where he was again assaulted by defendant Ralston. Compl. ¶ 8.
Plaintiff claims that on February 16, 2006, he was taken to the facility hospital and examined by defendant Nesmith and defendant Dr. Whalen. Comp. ¶ 10. Plaintiff states that Dr. Whalen told plaintiff that the assault*fn2 was plaintiff's fault and sent him out of the office. Comp. ¶ 11. Plaintiff claims that he "signed up" for sick call on many occasions, but did not receive any medical attention for his injuries.*fn3
Rule 37(b)(2)(C) specifically authorizes a court to dismiss an action if the party disobeys an order of the court to provide discovery. The imposition of sanctions under Rule 37 is within the discretion of the district court, and the sanction of dismissal is a harsh remedy to be used "only in extreme situations." Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990), cert. denied, 499 U.S. 943 (1991). Other sanctions include preclusion, expenses, and attorneys fees. FED. R. CIV. P. 37(b)(2). In order to impose the severe sanction of dismissal, the court must find willfulness, bad faith, or fault on the individual from whom discovery is sought. Bobal, 916 F.2d at 764. The party in question, particularly a pro se litigant, must have had prior notice that violation of the court's order would result in dismissal with prejudice. Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
In determining whether dismissal is appropriate, a court must consider factors such as" (1) the duration of plaintiff's failure to comply with the court's order; (2) whether plaintiff had notice that failure to comply could result in dismissal; (3) whether defendants are likely to be prejudiced by further delay; (4) the balance between the court's interest in managing its docket and the plaintiff's right to be heard; and (5) a consideration of sanctions less drastic than dismissal. Spencer v. Doe, 139 F.3d 107, 112-13 (2d Cir. 1998).
In order to depose an incarcerated individual, the Federal Rules of Civil Procedure require an order from the court. FED. R. CIV. P. 30(a). On March 21, 2007, at defense counsel's request, Magistrate Judge Di Bianco issued such an order in this case. (Dkt. Nos. 34, 35). The order specifically states that (1) plaintiff's disagreement with any security directives at the correctional facility "is not a ground on which the plaintiff may refuse to answer questions," and (2) "the failure of plaintiff to attend, be sworn and answer appropriate questions may result in sanctions including dismissal of the action . . . ." (Dkt. No. 35).
On May 4, 2007, defendants sent plaintiff notice of the deposition. (Dkt. No. 37, Ex. A). On May 22, 2004, defense counsel traveled to Sing Sing Correctional Facility to take plaintiff's deposition in accordance with the notice served on plaintiff. The transcript of the attempted deposition has been filed as Exhibit B to defendants' motion to dismiss. (Dkt. No. 37-(4-5)). A review of the transcript shows that plaintiff made it impossible for defense counsel to obtain any information regarding the alleged facts in this case.
The deposition started by defense counsel explaining the deposition process and asking plaintiff if he was under any medications that might make it difficult for him to understand counsel's questions. Deposition Transcript (T) at 4-7. When counsel asked plaintiff if he was taking any medications, plaintiff answered in the affirmative, naming several medications, including Lithium. (T. 7). Plaintiff stated that he did not know if those medications would prevent him from understanding counsel's questions. Id. Plaintiff then stated that "[i]t's complicated because I'm hearing voices." (T. 8). Plaintiff stated that the voices were telling him how he was going to answer the questions, and that the voices were saying that "Satan rules." Id. At that point, counsel went off the record briefly to determine if the stenographer felt comfortable enough to ...