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Thomson v. Herbert

August 18, 2008

SHAMGOD THOMSON, PLAINTIFF,
v.
VICTOR HERBERT, SUPERINTENDENT, COLLINS (CONSENT) CORRECTIONAL FACILITY, DR. CETIN, HEAD OF MEDICAL STAFF COLLINS, SUPERINTENDENT WALTER KELLY, ATTICA CORRECTIONAL FACILITY, SUPERINTENDENT MICHAEL MCGINNIS, SOUTHPORT CORRECTIONAL FACILITY, NEW YORK STATE DEPARTMENT OF CORRECTIONS, STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

On February 13, 2001, the parties to this action consented pursuant to 28 U.S.C. § 636(c)(1) to proceed before the undersigned. The matter is presently before the court on Defendants' motion to dismiss the action for failure to prosecute (Doc. No. 60), filed December 3, 2007.

BACKGROUND and FACTS*fn1

Plaintiff Shamgod Thomson ("Plaintiff"), proceeding pro se, commenced this civil rights action on December 29, 1998, alleging Defendants, all employees of New York State Department of Correctional Services ("DOCS"), were violated his Eighth Amendment rights by being deliberately indifferent to Plaintiff's medical needs. Plaintiff was assigned pro bono counsel on three separate occasions including, most recently, Hugh M. Russ, III ("Russ") who, to date, continues to represent Plaintiff.

On July 10, 2000, Defendants served Robbie Lee Billingsley, Esq. ("Billingsley"), then serving as Plaintiff's pro bono counsel, with a demand for production of documents ("Demand for Documents"). On March 15, 2001, Defendants served Billingsley with a First Set of Interrogatories directed to Plaintiff ("Interrogatories"). On September 27, 2002, Billingsley moved to withdraw as Plaintiff's counsel (Doc. No. 33), and the motion was granted on October 31, 2002 (Doc. No. 37). By order filed February 14, 2003 (Doc. No. 38), Brian P. Fitzgerald, Esq. ("Fitzgerald"), and Lynette M. Gohr, Esq. ("Gohr"), were appointed as Plaintiff's pro bono counsel and, on May 27, 2003, Defendants re-served Fitzgerald and Gohr with the Demand for Documents and Interrogatories ("discovery demands"). On October 2, 2003, Gohr was terminated as Plaintiff's counsel, although Fitzgerald continued as Plaintiff's attorney of record. On June 1, 2004, Defendant filed a motion (Doc. No. 43) to compel Plaintiff's responses to the discovery demands, and the motion was granted on July 23, 2004 (Doc. No. 46) ("July 23, 2004 Order").

Because, despite the July 23, 2004 Order, Defendants never received Plaintiff's responses to the discovery demands, Defendants, on December 30, 2004, moved to dismiss the action pursuant to Fed. R. Civ. P. 37(b) and 41(b) (Doc. No. 48) ("Defendants' initial motion to dismiss"), based on Plaintiff's failure to comply with discovery demands and failure to prosecute. Plaintiff never filed any response in opposition to the motion. Although the record established Defendants had made significant efforts to obtain Plaintiff's compliance with the discovery demands, and that Plaintiff had violated this court's July 23, 2004 Order directing Plaintiff to respond to the discovery demands, by Decision and Order filed September 30, 2005 (Doc. No. 52) ("September 30, 2005 Order"), Defendants' initial motion was denied because Plaintiff, in letters to the court, complained that his appointed counsel, Fitzgerald, had failed to assist Plaintiff in the matter or to answer Plaintiff's letters, such that Plaintiff was unaware of the status of his case, and the court was unsure as to whether Plaintiff was even aware that Defendants' First Motion to Dismiss was pending. September 30, 2005 Order at 6-7. At that time, the February 14, 2003 order (Doc. No. 38) appointing Fitzgerald as Plaintiff's pro bono counsel was also vacated. Id. at 7.

By Order filed October 14, 2005, Hugh M. Russ, III, Esq. ("Mr. Russ"), was appointed as Plaintiff's pro bono counsel. At a scheduling conference held on December 13, 2006, Russ and Joseph Brown, Esq. ("Brown") appeared on Plaintiff's behalf,*fn2 and a new Scheduling Order (Doc. No. 58) ("December 13, 2006 Scheduling Oder") was filed directing, inter alia, Plaintiff to serve objection and responses to Defendants' discovery demands by February 28, 2007, and establishing October 1, 2007 as the deadline for discovery. The December 13, 2006 Scheduling Order was amended by order filed March 2, 2007 (Doc. No. 59) ("March 2, 2007 Order"), extending to March 30, 2007, the deadline for Plaintiff's objections and responses to the discovery requests.

On December 3, 2007, Defendants filed the instant motion to dismiss (Doc. No. 60) ("Defendants' motion"), seeking to dismiss the action pursuant to Fed. R. Civ. P. 26, 37 and 41(b). The motion is supported by the Declaration of Assistant Attorney General Kim S. Murphy ("Murphy") in Support of Motion to Dismiss (Doc. No. 61) ("Murphy Declaration"), and the Memorandum of Law in Support of Defendants' Motion to Dismiss (Doc. No. 62) ("Defendants' Memorandum"). In support of the motion, Murphy averred that on October 1, 2007, the deadline for discovery, she received an e-mail from Brown requesting Murphy consent to a six-month extension of Plaintiff's deadline for responding to Defendants' discovery demands, given that Brown had not heard from his client.*fn3 Murphy Declaration Exh. A.*fn4 Murphy consented to the request, but reminded Brown of Defendant's outstanding discovery demands. Id. The record does not indicate that either Brown or Russ ever requested any extension of the discovery cut-off date established by the court's March 2, 2007 Order.

This court's order, filed January 2, 2008 (Doc. No. 63), established January 18, 2008 as the deadline for Plaintiff to respond to Defendants' motion. Three subsequent requests by Plaintiff's counsel to extend the response deadline were granted, most recently by order filed February 19, 2008 (Doc. No. 66), establishing March 17, 2008 as Plaintiff's response deadline. To date, Plaintiff has not filed any response in opposition to Defendants' motion.

On April 2, 2008, Defendants filed the Declaration of Murphy in Further Support of Motion to Dismiss (Doc. No. 68) ("Murphy Reply Declaration"). Oral argument was deemed unnecessary.

Based on the following, Defendants' motion (Doc. No. 60) is GRANTED in part and DENIED in part.

DISCUSSION

Defendants seek to dismiss the instant action pursuant to Fed. R. Civ. P. 26, 37 and 41(b) based on Plaintiff's failure to comply with court-ordered discovery and for failure to prosecute. As stated above, to date, Plaintiff has filed nothing ...


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