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Steven Osborn v. (Gts/Rft) Dr. Ashock Goyle

February 9, 2011

STEVEN OSBORN, PLAINTIFF,
v.
(GTS/RFT) DR. ASHOCK GOYLE, MEDICAL PHYSICIAN, ONEIDA COUNTY JAIL, DEFENDANT.



DECISION and ORDER

Currently before the Court in this pro se civil rights action, filed by Steven Osborn ("Plaintiff") against Dr. Ashock Goyle of the Oneida County Jail ("Defendant"), are (1) Defendant's unopposed motion to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 37(b) as a sanction for his failure to attend two scheduled depositions in violation of a Court Order (Dkt. No. 16), and (2) United States Magistrate Judge Randolph F. Treece's Report-Recommendation recommending that Defendant's motion be granted, and that Plaintiff's Complaint be dismissed in its entirety as a sanction under Fed. R. Civ. P. 37(b) for willfully failing to attend a duly noticed deposition on February 16, 2010, in violation of the Court Order's of October 5, 2009, or, in the alternative, under Fed. R. Civ. P. 41(b) for willfully failing to prosecute this action and/or comply with various Court Orders (Dkt. No. 25). No Objection to Magistrate Judge Treece's Report-Recommendation has been filed. For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Plaintiff's Complaint is dismissed in its entirety.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his Complaint in this action on July 13, 2009. (Dkt. No. 1.) Generally, liberally construed, Plaintiff's Complaint alleges that Defendant violated his constitutional rights to adequate medical care under the Eighth and/or Fourteenth Amendments when, acting with deliberate indifference to Plaintiff's serious medical needs, Defendant failed to properly treat an ear injury that Plaintiff sustained after he was allegedly assaulted by deputies at the Oneida County Jail in April 2009. (Dkt. No. 1.) For a more detailed recitation of the factual allegations giving rise to Plaintiff's deliberate-indifference claim, the Court refers the reader to Paragraphs 6, 7 and 9 of Plaintiff's Complaint. (Dkt. No. 1, at ¶¶ 6, 7, 9.)

B. Defendant's Motion

On October 5, 2009, the Court issued a Scheduling Order that, inter alia, directed Plaintiff to attend a duly noticed deposition conducted by Defendant, and that specifically notified him that, inter alia, his failure "to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of the action pursuant to FED. R.CIV. P. 37." (Dkt. No. 13, at 4.)

On March 1, 2010, Defendant motion to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 37(b) as a sanction for his failure to attend two duly noticed depositions in violation of the Court Order's of October 5, 2009 (specifically, depositions scheduled for January 19, 2010, and February 16, 2010). (Dkt. No. 16.) Plaintiff did not submit a response to Defendant's motion by the originally scheduled deadline (March 15, 2010). (See generally Docket Sheet.)

As a result, as an extension of special solicitude to Plaintiff as a pro se civil rights litigant, on September 23, 2010, the Court issued an Order sua sponte extending Plaintiff's response deadline to November 5, 2010. (Dkt. No. 24.) In addition, Plaintiff was specifically and emphatically warned that his "failure to respond [to Defendant's motion] may, if appropriate, result in the granting of Defendant's Motion," which would eliminate the possibility of a trial in this action. (Id. at 1 [emphasis in original].) Despite receiving this warning, Plaintiff failed to submit a response to Defendant's motion. (See generally Docket Sheet.)

C. Magistrate Judge Treece's Report-Recommendation

On January 11, 2011, Magistrate Judge Treece issued a Report-Recommendation recommending that Plaintiff's Complaint be dismissed for the following two alternative reasons:

(1) as a sanction under Fed. R. Civ. P. 37(b) for wilfully failing to attend a duly noticed deposition on February 16, 2010, in violation of the Court Order's of October 5, 2009; or (2) under Fed. R. Civ. P. 41(b) for willfully failing to prosecute this action and/or comply with the Court's Orders of August 21, 2009, and December 8, 2009, directing him to notify the Court in writing of his proper address. (Dkt. No. 25, at 2-6.)

For the sake of brevity, the Court will not recite Magistrate Judge Treece's particular findings of fact and conclusions of law in this Decision and Order, which is intended primarily for the review of the parties.

Plaintiff has not filed any Objections to the Report-Recommendation and the time in ...


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