The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM DECISION and ORDER
Presently before the court is a motion to dismiss this action as a sanction for plaintiff's deliberate failure to attend his scheduled deposition. (Dkt. No. 77). Plaintiff has responded in opposition to the motion. (Dkt. No. 78). For the following reasons, this court will assess the costs of the aborted deposition against plaintiff, with a warning that such behavior will no longer be tolerated, and if he continues to refuse to engage in proper discovery procedures, this court will dismiss his complaint.
1. Facts and Procedural History
In a lengthy complaint, plaintiff alleges that while he was incarcerated at Auburn Correctional Facility, he was assaulted, abused, discriminated against, and retaliated against because he is Arab and Muslim. Compl. ¶¶ 5-21. Plaintiff also alleges that the Auburn defendants denied him proper medical care, denied him due process in disciplinary proceedings, and violated his right to be free from cruel and unusual prison conditions. Id. Plaintiff alleges that after his transfer to Mid-State Correctional Facility, the abuse continued, and the Mid-State defendants denied plaintiff proper medical care and accommodations for his back and knee injuries. Compl. ¶¶ 23-36.
This complaint was filed on May 25, 2006. (Dkt. No. 1). On June 26, 2007, Magistrate Judge Di Bianco granted defense counsel's request to take plaintiff's deposition. (Dkt. No. 40). In that order, the court specifically stated that plaintiff's "failure to attend, be sworn and answer appropriate questions may result in sanctions including dismissal of the action pursuant to Rule 37 of the Federal Rules of Civil Procedure." Id. at 2. On July 12, 2007, plaintiff made a motion for appointment of counsel and an interpreter for the deposition. (Dkt. No. 46). Later, plaintiff made a motion for Magistrate Judge Di Bianco's recusal. (Dkt. No. 62). On September 28, 2007, Magistrate Judge Di Bianco denied the various pending motions filed by plaintiff, denying plaintiff's motions for appointment of counsel, for an interpreter, and for recusal. (Dkt. No. 64).
Defense counsel scheduled plaintiff's deposition for November 29, 2007. Defendants' Ex. A (Dkt. No. 77). Counsel notified plaintiff of the November 29 date by letter dated November 9, 2007, attaching a copy of Magistrate Judge Di Bianco's June 26, 2007 deposition order, together with a copy of Magistrate Judge Di Bianco's September 28, 2007 order. Siuda Aff. ¶ 9 & Ex. A. On November 20, 2007, defense counsel sent plaintiff a letter, changing the time, but not the date of his deposition. Siuda Aff. ¶ 10 & Ex. B.
Defense counsel states that on November 28, 2007, she received a letter from plaintiff, dated November 18, 2007, in which he states that plaintiff was attacked in the Special Housing Unit (SHU) for filing a grievance against "The Nurse." Siuda Aff. Ex. C. Plaintiff did not include the date or time of this alleged assault. Id. In the letter, plaintiff stated that defense counsel should "please be advised" that after the attack on plaintiff in the SHU, he was not going to leave his cell and "he well [sic] never speak to the defendants [sic] lawyer." Id. Plaintiff apparently believes that a deposition is "racist procedure." Id. He also stated that he would "take any dismissal of this case to the U.S. Court of Appeals for The 2nd Cir." Id.
As a result of plaintiff's letter, defense counsel wrote to Magistrate Judge Di Bianco on November 26, 2007, asking him to order plaintiff to attend his deposition. (Dkt. No. 71). Plaintiff had already been ordered to attend his deposition in Magistrate Judge Di Bianco's June 26, 2007 Order. (Dkt. No. 40). Magistrate Judge Di Bianco denied defendants' request as moot, in part because plaintiff had been ordered to attend the deposition and had been warned that his failure to attend could result in dismissal. More importantly, however, Magistrate Judge Di Bianco stated that he was concerned that even if he issued an order, plaintiff would never see the order because the deposition was going to take place on November 29, 2007. (Dkt. No. 72).
Defense counsel states that on November 28, 2007, she received another letter from plaintiff, dated November 25, 2007, in which he again stated that "I am not going to give any deposition in any law sue [sic]." Siuda Aff. ¶ 13 & Ex. E. Defense counsel went to Upstate Correctional Facility on November 29, 2007, and plaintiff refused to leave his cell to attend the deposition. Siuda Aff. ¶ 14. Defense counsel took the testimony of Lieutenant Ralph Isabella, the officer assigned to bring plaintiff to the room where the deposition was being held. Siuda Aff. ¶ 14.
The transcript of Lieutenant Isabella's testimony is attached to defense counsel's affidavit as Exhibit F. According to the transcript of the testimony, plaintiff's refusal to attend the deposition was videotaped, although no videotape has been submitted with this motion. Ex. F at 4-7. Lieutenant Isabella stated that when he went to plaintiff's cell, plaintiff stated that he was not going to "give a deposition because he didn't feel it was necessary to do that on video." Id. at 7. Lieutenant Isabella also stated that plaintiff told him that plaintiff "felt his only obligation was when he went to trial." Id. Defense counsel has now made a motion to dismiss this case and for the costs associated with the failed deposition, based upon plaintiff's willful failure to attend.
Defense counsel has submitted the bill from the court reporting service, for the November 29, 2007 appearance and the transcript of Lieutenant Isabella's testimony. Siuda Aff. ¶ 17 & Ex. G.
Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to obey "an order to provide or permit discovery," including orders under Rule 37(a)(after a motion to compel), Rule 35 (mental and physical examinations) and Rule 26(f)(providing for special discovery orders as the result of the Rule 16 meeting), the court may then make any orders regarding the failure to abide by the discovery order. FED. R. CIV. P. 37(b)(2)(A). Rule 37 also contains a specific section providing sanctions for a "[p]arty's failure to attend its own deposition . . . ." FED. R. CIV. P. 37(d). The orders that the court can issue include preclusion, orders deeming certain facts established, striking pleadings, dismissal (only in extreme circumstances), or contempt (unless it was an order to submit to medical examination). FED. R. CIV. P. 37(d)(3) (referring to the sanctions listed in Rule 37(b)(2)(A)(i)-(iv). In lieu of, or in addition to the ...