Plaintiff, who on the first day of trial refused to testify in support of his § 1983 claims because he was being detained during trial at the same prison facility where his rights had allegedly been violated, appeals the decision of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge) to dismiss the case with prejudice.
The opinion of the court was delivered by: Reena Raggi, Circuit Judge
Before: CABRANES and RAGGI, Circuit Judges, and BERMAN, District Judge.*fn1
Judge Berman dissents in a separate opinion.
New York State prisoner Teddy Lewis sued the named defendants, officials and employees of the New York State Department of Correctional Services, pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights while being held at Great Meadow Correctional Facility ("Great Meadow"). Proceeding pro se, Lewis now appeals from a judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge), dismissing his suit with prejudice based on his refusal to testify at trial while incarcerated at Great Meadow. Because we conclude that the district court acted within its discretion in ordering dismissal, we affirm.
Teddy Lewis is a New York State inmate incarcerated through at least 2062 -- effectively the rest of his life -- for multiple murders. In 1991, Lewis initiated this § 1983 action against defendants for alleged racial harassment and physical assaults sustained during his transfer from Attica Correctional Facility to Great Meadow in 1990.*fn2
The litigation of Lewis's § 1983 claims was beset by repeated and lengthy pre-trial delays spanning more than a decade. For example, although the case was designated ready for trial on May 17, 1994, the docket reflects no activity until August 5, 1996, when the matter was reassigned to Judge Kahn. Thereafter, despite Lewis's letters to the court objecting to continued delay,*fn3 no steps were taken to set his case down for trial until December 7, 1998, when the court advised the parties that trial would commence on March 1, 1999.It did not.
Instead, by letter dated January 20, 1999, defense counsel sought leave to file a motion for summary judgment. Leave was granted, and the district court awarded summary judgment to defendants on March 28, 2000. Lewis appealed, and this court vacated the judgment by unpublished summary order dated January 8, 2001, because of the absence of factual findings or legal analysis supporting the award. See Lewis v. Benson, 23 F. App'x 23, 23 (2d Cir. 2001).
Following remand, on February 20, 2003, defendants moved for partial summary judgment on behalf of the supervisory officials not alleged to have been personally involved in the 1990 assault. In a report issued on September 12, 2003, Magistrate Judge Randolph F. Treece recommended that the motion be granted, and, over Lewis's objections, Judge Kahn adopted the recommendation.*fn4
As to plaintiff's claims against the remaining defendants, in March 2005, the district court assigned Jeremy P. Chen as pro bono counsel for Lewis and set the case down for trial on June 21, 2005, at the federal courthouse in Albany.
B. The Trial and Dismissal of Lewis's Action
Before trial, Lewis was incarcerated at the New York State Correctional Facility in Auburn, New York ("Auburn"), approximately 150 miles from the federal courthouse in Albany. See generally Boyce Motor Lines v. United States, 342 U.S. 337, 344 (1952) (recognizing court's authority to "take judicial notice of geography"). Lewis asserts that on the morning of June 21, 2005, he was transported from Auburn to Albany and placed in a holding cell at the federal courthouse. There, at approximately 10:00 a.m., Chen advised Lewis that during the course of the federal trial he would be held at Great Meadow, the facility where the alleged assaults had occurred and where certain of the defendants were still employed. Great Meadow, located in Comstock, New York, is approximately 70 miles from Albany.
The morning's court proceedings commenced on the record at 10:30 a.m. in Judge Kahn's chambers.*fn5 The trial transcript reveals that Judge Kahn, plaintiff's counsel Chen, and defense counsel -- Stephen Schwartz of the New York Attorney General's Office -- there discussed the fact that Lewis would be shackled during trial, an action apparently deemed necessary in light of the violent nature of both Lewis's crimes of conviction and his disciplinary record in prison. Indeed, it was Lewis's own counsel who proposed that his client's feet and non-dominant hand be shackled during trial, leaving his dominant hand free for taking and passing notes.
With this resolved, Judge Kahn inquired of counsel: "Is there anything else before we bring up the jury and the [plaintiff]?" Trial Tr. at 4. The attorneys proceeded to discuss various factual stipulations and the number of witnesses they would call, with Chen indicating that Lewis would be the only witness in support of the plaintiff's case. Chen requested -- and the court agreed -- that Lewis would sit in on jury selection. At no time, however, did Chen raise the issue of Lewis's incarceration during trial at Great Meadow, nor was the subject broached by defense counsel or Judge Khan. Indeed, neither the trial transcript nor the clerk's detailed notes indicate that a discussion of this subject took place prior to jury selection.
Jury selection commenced at 10:45 a.m. and concluded at 11:37 a.m., whereupon the jury was sworn and given preliminary instructions by Judge Khan. The court then declared a "five-minute break" before opening statements. Id. at 12. The transcript of the colloquy that ensued when the break concluded at 11:48 a.m. suggests that it was during that interval that the issue of plaintiff's incarceration during trial at Great Meadow first arose:*fn6
THE COURT: Correct me if I'm wrong, Mr. Chen, but Mr. Lewis is concerned about testifying particularly against the defendants who are now assigned to the Great Meadow Correctional Facility?
MR. CHEN: That's correct, your Honor.
THE COURT: And as I understand it, he states that he won't so testify unless he's transferred to another facility. I told him that I personally have no power over transferring. As I understand it, I don't think that's within my power to do that. And what's your position on that Mr. Schwartz?
MR. SCHWARTZ: I don't understand, Judge, because, yes, Mr. Lewis is currently housed at Auburn Correctional Facility. Correct?
MR. CHEN: That is correct.
MR. SCHWARTZ: That's another facility. So he's concerned about --
MR. CHEN: He will be housed at Great Meadow temporarily.
THE COURT: During this trial.
MR. CHEN: During the course of this trial. And since this is where the incident took place, and he's also concerned about the fact that other defendants are currently employed there, that that concerns him.
MR. SCHWARTZ: This is the first I heard of the fact that he was going to be housed there. I don't know that I have any authority -- I know I don't have any authority to determine where an inmate is being housed during the course of ...