The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Frank Crawley ("Crawley"), formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action while he was incarcerated pursuant to 42 U.S.C. § 1983 alleging that defendants, four DOCS employees, violated his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments. Compl. (Docket No. 1). Presently pending is defendants' motion to dismiss the action pursuant to Fed. R. Civ. P. 41(b) for Crawley's failure to (1) comply with the Court's discovery orders, (2) attend his deposition, and (3) prosecute the case. Dkt No. 27.*fn2 Crawley has failed to respond to the motion. For the following reasons, it is recommended that defendants' motion be granted.
Crawley did not oppose defendants' motion. "[J]udgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Defendants provided such notice in their Notice of Motion here. Dkt. No. 27.*fn3 Despite such notice, Crawley failed to respond. Because Crawley has not responded to raise any question of material fact, the facts as set forth by defendants are accepted as true. See Adirondack Cycle & Marine, Inc. v. Am. Honda Motor Co., No. 00-CV-1619, 2002 WL 449757, at *1 (N.D.N.Y. Mar. 18, 2002) (McAvoy, J.) (citing Lopez v. Reynolds, 998 F. Supp. 252, 256 (W.D.N.Y. 1997)); see also N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.") (emphasis in original).
On January 12, 2009, Crawley commenced this action while incarcerated at Clinton Correctional Facility. Compl. ¶ 1. Crawley contends that on January 15, 2008, while incarcerated at Willard Drug Treatment Campus, he was subjected to excessive force while being escorted back to his housing unit. Id. ¶¶ 11-15.
As relevant to the pending motion, on October 23, 2009 this Court issued a discovery and scheduling order which required Crawley to provide defendants with discovery material. Lombardo Decl. (Dkt. No. 27-1) ¶¶ 5-6 (citing Dkt. No. 21(I)(A)(1)). Pursuant to the order, defendants were granted their request to depose Crawley. Lombardo Decl. ¶ 7 (citing Dkt. No. 21(I)(D)). Within the order, Crawley was advised that any "failure of [Crawley's] to attend, be sworn and answer appropriate questions may result in sanctions, including dismissal of the action pursuant to Fed. R. Civ. P. 37." Lombardo Decl. ¶ 7 (quoting Dkt. No. 21(I)(D)).
On October 28, 2009, Crawley was served with a notice that defendants would take his deposition on January 15, 2010. Lombardo Decl. ¶ 8; Id., Ex. A (Dkt. No. 27-3) at 2-3. The notice provided that if Crawley was still incarcerated, his deposition would occur at the correctional facility within which he was incarcerated, and that if he had been released, the deposition would be conducted at the Attorney General's Office in Albany, New York. Id. ¶ 8; Id., Ex. A at 2-3. On December 24, 2009, Crawley was released from incarceration and left the address noted above as his permanent residence, in the Bronx. Id. ¶ 9; see also LeClair Decl. (Dkt. No. 27-2) ¶¶ 3-4.
On December 30, 2009, counsel for defendants wrote Crawley a letter in which he advised him that failure to comply with defendants' discovery demands would result in judicial intervention and that he was scheduled for attendance at his court-ordered deposition on January 15, 2010. Lombardo Decl. ¶ 10; Id., Ex. B (Dkt. No. 27-4) at 2-3. The letter was received by A. Crawley on January 19, 2010. Id. ¶ 10; Id., Ex. B at 4. On January 14, 2010, the day before the deposition was scheduled, Crawley's mother called to inform defense counsel that Crawley was in a crisis center for addiction treatment and was unable to attend his deposition. Id. ¶ 11. Crawley's deposition was adjourned until February 5, 2010 and Mrs. Crawley was also advised that Crawley also needed to request an extension to provide defendants with the requisite discovery material or else defendants would move for dismissal. Id. On January 14, 2010, a letter memorializing this conversation was sent to Crawley's above noted residence, which was received by A. Crawley on January 19, 2010. Id. ¶ 12; Id., Ex. C (Dkt. No. 27-5).
On January 15, 2010, counsel for defendants attempted to contact Crowley at the crisis center. Lombardo Decl. ¶ 13. Staff did not confirm that Crawley was residing there, but a few minutes later Crawley contacted Lombardo. Id. ¶¶ 13-14. During the conversation, Crawley was directly informed that his deposition had been adjourned, he needed to seek an extension to provide defendants with the requested discovery demands, and if Crowley failed to either attend the deposition or send the discovery material, defendants would move to dismiss the case. Id. ¶ 14.
On January 27, 2010, Crawley filed a request for an extension to provide defendants with the requisite discovery demands. Lombardo Decl. ¶ 15. While the request was granted, to date Crawley has failed to provide defendants with discovery material. Id. ¶¶ 15, 17. Crawley also failed to attend his deposition. Id. ¶ 16. This motion followed.
Fed. R. Civ. P. 41(b) provides that a court may dismiss an action based upon the failure of a plaintiff to prosecute, comply with an order of the court, or notify the court of a change of address. See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) ("The district court also has the power under Fed.R.Civ.P. 41(b) to dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.") (citations omitted); MTV Networks v. Lane, 998 F. Supp. 390, 393 (S.D.N.Y.1998); see also N.D.N.Y.L.R. 41.2 (b). Since a Rule 41(b) dismissal is a "harsh remedy," it is "appropriate only in extreme circumstances." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Furthermore, where the plaintiff is pro se, "courts 'should be especially hesitant to dismiss for procedural deficiencies. . . .'" Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (quoting Lucas, 84 F.3d at 535); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477(2006). To determine whether dismissal for failure to prosecute is appropriate, courts should consider:
1) the duration of plaintiff's failures; 2) whether plaintiff had received notice that further delays would result in dismissal; 3) whether the defendant is likely to be prejudiced by further delay; 4) a balancing of the need to alleviate court calendar congestion with a ...