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Chavis v. Ryan


November 13, 2008


The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge


Plaintiff George Chavis, a New York State prison inmate, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, against nineteen correctional officials employed by the New York State Department of Correctional Services. Generally, in his Complaint, Plaintiff alleges that Defendants violated his rights under the First, Eighth and Fourteenth Amendments when he was incarcerated at Upstate Correctional Facility between approximately July 28, 2002, and January 20, 2005. (Dkt. No. 1, ¶¶ 6-7 [Plf.'s Compl.].) Currently before the Court is a Report-Recommendation that the Court grant Defendants' motion to dismiss Plaintiff's Complaint for failure to comply with several Orders of the Court and for failure to prosecute the action. For the reasons set forth below, the Courts adopts the Report-Recommendation in its entirety.


On November 2, 2007, Defendants moved to dismiss Plaintiff's Complaint for failure to comply with several Court orders and for failure to prosecute the action, pursuant to Fed. R. Civ. P. 41(b), 37(b), and 37(d). (Dkt. No. 67.) The motion was referred to Magistrate Judge David R. Homer for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On July 21, 2008, Magistrate Judge Homer issued a Report-Recommendation that weighed the five factors governing a decision on a motion to dismiss under Fed. R. Civ. P. 41(b), and concluded that the Court should grant Defendants' motion. (Dkt. No. 77.) On August 4, 2008, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 78.) On August 11, 2008, Defendants filed a Response to Plaintiff's Objection. (Dkt. No. 79.) On August 20, 2008, Plaintiff filed a Reply to Defendants' Response. (Dkt. No. 80.)


When specific objections to a magistrate judge's Report-Recommendation are made, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). On de novo review, "[t]he judge may . . . receive further evidence . . . ." 28 U.S.C. § 636(b)(1)(C). However, a district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994); Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18, n.8 (S.D.N.Y. Sept. 30, 1993).

When only general objections are made (or the party merely reiterates his original allegations or arguments), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999); Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec. 12, 1994) (Mukasey, J.), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895 (1996). Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted].

After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).


A. Grounds for Dismissal Identified in Report-Recommendation

After carefully examining the record in this action de novo--including Magistrate Judge Homer's Report-Recommendation, Plaintiff's Objection thereto, and the parties' subsequently filed papers--the Court adopts the Report-Recommendation in its entirety for the reasons stated therein and dismisses Plaintiff's Complaint.

Generally, Plaintiff's objections attempt to raise a handful of factual disputes about why he refused to participate in the depositions in question, not whether he refused to participate in those depositions after being Ordered to do so by the Court. (Dkt. No. 78, 80.) For the sake of brevity, the Court will set aside the fact that (1) generally Plaintiff's objections merely reiterate his original allegations or arguments before Magistrate Judge Homer, (2) some of his objections attempt to submit new evidence on appeal without showing cause for the granting of permission to do so, (3) his reply papers were submitted past the deadline for filing objections, and (4) he has used abusive language in his submissions.*fn1 What is more important is that the disputes of fact that Plaintiff attempts to raise are of little, if any, materiality to the five factors to be considered by a district court when deciding whether or not to grant a motion to dismiss under Fed. R. Civ. P. 41(b).*fn2 This is because the justifications that Plaintiff proffers for his refusals to be deposed (e.g., not having his paperwork with him to refer to before answering questions) are not adequate, especially in light of (1) Magistrate Judge's Order of August 9, 2007, specifically addressing that issue (Dkt. No. 63), and (2) the accommodations made by defense counsel during the depositions. As a result, the disputes of fact that Plaintiff attempts to raise do not tilt the scales against dismissal. To the contrary, the scales remain balanced decidedly in favor of dismissal. The Court would add only two points to Magistrate Judge Homer's thorough weighing of the relevant five factors in his Report-Recommendation.

With regard to the first factor, the duration of Plaintiff's failures is, at the very least, some nine (9) months, having begun when he first refused to be deposed on January 19, 2007, and having continued until he refused to be deposed for the third time on October 16, 2007. (The Court says "at the very least" because, arguably, Plaintiff's failures have continued through the date of this Memorandum-Decision and Order.) In any event, even considering the shorter time period of nine months, generally, durations of such a length in time are sufficient to weigh in favor of dismissal.*fn3

With regard to the third factor, the prejudice is exacerbated by the age of the case and number of events giving rise to Plaintiff's claims. Under the circumstances, a further delay may well affect witnesses' memories, the ability to locate witnesses (who might retire from, or be transferred within, the New York State Department of Correctional Services), and the preservation of evidence.*fn4

For all of these reasons, the Court adopts the Report-Recommendation in its entirety and dismisses Plaintiff's Complaint.

B. Alternative Grounds for Dismissal

In his verified form Complaint, Plaintiff checked the box labeled "Yes" next to the question "Have you ever filed any other lawsuits in any state or federal court relating to your imprisonment?" (Dkt. No. 1, ¶ 5[a] [Plf.'s Compl.].) Following this question on the verified form Complaint was the directive: "If your answer to 5(a) is YES you must describe any and all lawsuits, currently pending or closed, in the space provided on the next page." (Id. at ¶ 5[b].) However, in response to that directive, Plaintiff listed only one case, Chavis v. Kienert, 03-CV-0039 (N.D.N.Y.). In fact, as of the date he filed his Complaint on January 20, 2005,*fn5 Plaintiff had filed at least eleven (11) other lawsuits in state or federal court relating to his imprisonment.*fn6

The docket sheets of all of these cases are available for viewing online, through the Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service, and the New York State Unified Court Systems' Case Information Service.

Generally, information about a prisoner's litigation history is material to a prisoner civil rights action since it enables the Court to answer the following questions: (1) whether any of the issues in the action have been previously litigated and decided (for purposes of the doctrines of res judicata and collateral estoppel); (2) whether the plaintiff had, prior to being granted in forma pauperis status in this action, earned "three strikes" for purposes of 28 U.S.C. § 1915(g); (3) whether the plaintiff had a record of frivolous litigation sufficient to warrant a "bar order" (i.e., an order barring him from litigating further in that court without meeting certain preconditions) pursuant to 28 U.S.C. § 1651(a); and (4) whether the plaintiff's litigation experience was so extraordinary that it diminishes, or altogether dispenses with, the need to afford him special solicitude. Here, the information would have been material to all these inquiries, particularly in considering whether or not Plaintiff needed the full measure of special solicitude normally afforded pro se litigants, and whether or not he had, before filing his Complaint on January 20, 2005, acquired "three strikes" for purposes of 28 U.S.C. § 1915(g). See Chavis v. Curlee, 06-CV-0049, 2008 WL 508694, at *2-3 (N.D.N.Y. Feb. 21, 2008) (Kahn, J., adopting Report-Recommendation finding that Plaintiff had incurred "strikes" on July 14, 1999, and February 25, 2000).

While a plaintiff is under no duty to provide this information in order to state an actionable civil rights claim, here, Plaintiff chose to answer a question on the form Complaint calling for such information, and swore to the truthfulness of his answer. There is simply no excuse for making such a sworn misrepresentation to the Court. District Judges from this Court have indicated a willingness to sanction pro se litigants for making such misrepresentations.*fn7

Certainly, other federal courts have so sanctioned pro se litigants.*fn8 The Court has carefully considered less drastic sanctions and have found them to be inadequate to curb this particular intentional and egregious litigation abuse--especially given Plaintiff's apparently incorrigible propensity for abusing the litigation process (see, supra, Part III.A. of this Memorandum-Decision and Order).

For these reasons, in the alternative, the Court dismisses Plaintiff's Complaint sua sponte, under Fed. R. Civ. P. 11, as a sanction for having knowingly made a sworn material misrepresentation to the Court about his litigation history.


ORDERED that the Report-Recommendation (Dkt. No. 77) is ADOPTED in its entirety; and it is further

ORDERED that Defendants' motion to dismiss Plaintiff's Complaint for failure to comply with several Orders of the Court and for failure to prosecute the action (Dkt. No. 67) is GRANTED; and its further

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED in its entirety.

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