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Dunn v. Albany Medical College

June 7, 2010



Plaintiff Robert Dunn, Jr. ("Dunn" or "Plaintiff") initiated the instant employment discrimination suit against Defendant Albany Medical College ( "AMC" or "Defendant") on April 22, 2009 in the Northern District of Illinois. Compl. (Dkt. No. 1). Defendant subsequently filed a Motion to strike portions of that Complaint. Dkt. No. 32. While that Motion was pending discovery began. On March 19, 2010, Defendant filed a Motion for sanctions against Plaintiff for the latter's alleged failure to comply with his discovery obligations. On May 5, 2010, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York, the Honorable David E. Peebles, United States Magistrate Judge, issued a Report-Recommendation addressing that Motion for sanctions. Report-Rec. (Dkt. No. 55). Therein, Judge Peebles recommends dismissing Plaintiff's Complaint with prejudice as a sanction for Plaintiff's non-compliance with his discovery obligations and court orders. Id. Plaintiff filed objections ("Objections") to the Report-Recommendation on May 25, 2010 (Dkt. No. 57); Defendant opposed those Objections with a Memorandum of law filed June 4, 2010.

For the reasons that follow, Judge Peebles' Report-Recommendation (Dkt. No. 55) is adopted in part; Defendant's Motion for sanctions (Dkt. No. 47) is granted in part; Defendant's Motion to strike (Dkt. No. 32) is denied, and Plaintiff is granted leave to amend his Complaint.


Dr. Robert Dunn, acting pro se, filed the instantlawsuit against his former employer, Albany Medical College, asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981. In July 1992, AMC hired Plaintiff, who is African-American, for a three-year ophthalmology residency but dismissed him after only two years. Plaintiff alleges that the dismissal was due to his race.Further, Plaintiff asserts that while he was in the residency program, he was subjected to disparate treatment, racial intolerance, and harassment.

On June 21, 1994, nearly 16 years prior to filing his federal suit, Plaintiff, in response to his dismissal from AMC, filed a complaint with the New York State Division of Human Rights ("NYSDHR") and cross-filed with the Equal Employment Opportunity Commission ("EEOC"). After investigation, NYSDHR found no probable cause to support Plaintiff's allegations and dismissed his complaint on April 24, 1997. See Dkt. No. 18-5. Around the same time, the EEOC sent Plaintiff a Dismissal and Notice of Right to Sue letter, which he claims to have never received. In late 2008 he requested a copy, which the EEOC provided on January 22, 2009. Dkt. No. 18-6.

After receiving his Right to Sue letter, Plaintiff initiated the instant action on April 22, 2009 in the Northern District of Illinois. Compl. (Dkt. No. 1). Defendant moved to dismiss for lack of personal jurisdiction and improper venue, or alternatively, to transfer venue to the Northern District of New York. Dkt. No. 15. The Illinois Court denied without prejudice Defendant's Motion to dismiss, and pursuant to 28 U.S.C. § 1406, granted its Motion to transfer venue. Dkt. No. 27.

Plaintiff filed his Complaint using a Pro Se Complaint Form. See Dkt. No. 1. Paragraph 13 of that form provides space to describe the facts underlying his discrimination claim. Id. at 5. Plaintiff entered "see attachment." Id. Plaintiff's attachment to Paragraph 13 ("the Paragraph 13 attachment") purports to announce eight claims, subdivided into nineteen paragraphs. Many of these paragraphs are further subdivided, such that there are forty sub-parts, two of which are subdivided again into seven additional sub-parts. Id. Defendant seeks to strike the Paragraph 13 attachment, claiming it fails to comply with the pleading requirements of Rule 8 of the Federal Rule of Civil Procedure. Mot. to Strike (Dkt. No. 32). Plaintiff contends that his Complaint does comply with Rule 8, but requests leave to amend his Complaint if the Court finds otherwise. See Mem. in Opp'n to Def.'s Mot. to Strike (Dkt. No. 35-1) at 6.

On November 12, 2009, while the Motion to strike was pending before this Court, and, thus, prior to AMC's answering Plaintiff's Complaint, Magistrate Judge Peebles initiated discovery in the case. Magistrate Peebles ordered, pursuant to Federal Rule of Civil Procedure 26, that mandatory disclosure be exchanged by December 15, 2009, and initial written discovery demands be served, if desired, by December 31, 2009. See Uniform Pretrial Scheduling Order (Dkt. No. 40) at 2. In December of 2009, AMC served interrogatories and document demands upon Plaintiff. To date, and despite court orders requiring him to comply with his Rule 26 obligations, Plaintiff has neither provided voluntary disclosures to the defendant, nor responded to AMC's discovery requests.

On January 4, 2010, Dunn requested that his time to respond to AMC's interrogatories be extended until this Court resolved the outstanding Motion to strike; Judge Peebles denied the request and ordered Plaintiff serve mandatory disclosures and responses to Defendant's discovery demands by January 31, 2010. See Text Minute Entries dated January 4, 2010; January 5, 2010. On January 28, 2010, Plaintiff again requested time to comply with his discovery obligation and advised the Court of his intent to retain council. Dkt. No. 43. Plaintiff's request for additional time was denied. See Text Minute Entry dated January, 28, 2010. Shortly thereafter, Plaintiff moved for appointment of counsel (Dkt. No. 44); Magistrate Peebles denied the request without prejudice as Plaintiff had failed to show financial need. Dkt. No. 46. Magistrate Peebles, in denying Plaintiff's Motion, again advised Plaintiff that regardless of whether he retains counsel, he must comply with court orders including the prior order to serve discovery responses upon Defendant's counsel, and he warned Plaintiff that failure to do so could result in dismissal of his action. See Text Minute Entry dated February 26, 2010.

On March 19, 2010, Defendant, still having not received Plaintiff's responses, filed a Motion for sanctions ("Sanctions Motion") pursuant to Federal Rule of Civil Procedure 37, seeking dismissal of the Complaint. Dkt. No. 47. On April 2, 2010, Plaintiff again moved for, and was again denied, court-appointed counsel.*fn1 Dkt. Nos. 49, 50. Acting without counsel, Plaintiff opposed Defendant's Sanctions Motion, reiterating that he cannot appropriately respond to Defendant's discovery requests because AMC has not and need not answer Plaintiff's Complaint until the Motion to strike is resolved; Plaintiff alleges that this fact, which deprives him of knowing which facts are disputed, is compounded by his inability to retain counsel, leaving him unable to protect his legal rights in responding to AMC's interrogatories. See Dkt. No. 51-1 ¶ 19-20.

Magistrate Peebles rejected these arguments and recommends granting Defendant's Sanction Motion and dismissing Plaintiff's Complaint. Report-Rec. The Report-Recommendation finds that Plaintiff's continued failure to respond to AMC's interrogatories and non-compliance with court orders justifies a sanction of dismissal under Federal Rules of Civil Procedure 37 and 41(b).


This Court is to "make 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). "A [district] judge... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Where, as here, a party seeks judgment against a pro se litigant, the Court affords the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). Thus, pro se pleadings "must be read liberally and should be interpreted to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2nd Cir. 1994)). Nevertheless, a litigant's "pro se ...

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