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Gary Gillard v. Nancy Smith

June 13, 2011


The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge


This matter has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636 (b) and Local Rules N.D.N.Y. 72.3(c).

In this civil rights complaint (Dkt. No. 1), plaintiff alleges that, while he was incarcerated at Upstate Correctional Facility ("Upstate"), defendants violated a variety of plaintiff's constitutional rights, including the right to be free from cruel and unusual punishment; the right to constitutionally adequate medical care; the right to send and receive mail; and the right to be free from retaliation for the exercise of a constitutional right. Id. Plaintiff claims that the law library at Upstate is inadequate, he was denied legal copies, and he was denied access to the law library. Finally, plaintiff claims that Upstate's grievance program is inadequate, and he was subjected to various forms of retaliation relating to the grievance program. Finally, plaintiff alleges that he has been subject to discrimination because he is a sex offender.

Plaintiff seeks injunctive and substantial monetary relief.

Presently before the court is defendants' motion to dismiss this action as a sanction for plaintiff's failure to attend his deposition pursuant to Fed. R. Civ. P. 37. (Dkt. No. 65). Plaintiff has responded in opposition to the motion. (Dkt. No. 67). Plaintiff has also filed a motion for "Assignment of Case for Trial." (Dkt. No. 70). For the following reasons, this court recommends granting defendants' motion. The court will also order denial of the Motion for Assignment of Case for Trial.


I. Facts

Plaintiff filed this action on August 19, 2009. (Dkt. No. 1). On October 21, 2009, the Honorable Gary L. Sharpe granted plaintiff's motion to proceed in forma pauperis, denied plaintiff's September 17, 2009 motion for a preliminary injunction, and ordered service of the complaint on defendants. (Dkt. No. 8). On March 31, 2010, I issued a Mandatory Pretrial Discovery and Scheduling Order ("the Scheduling Order"). (Dkt. No. 56). In the Scheduling Order, the deadline for discovery was July 30, 2010. Id. The Scheduling Order also granted defendants leave to take plaintiff's deposition and explained the proper procedure for doing so. (Dkt. No. 56 at 3-5).

The Scheduling Order provides for fifteen days notice of the deposition and provides that the deposition may not take place until at least fifteen days after defense counsel provides plaintiff with the discovery mandated in another part of the Scheduling Order. Id. at 4. The Scheduling Order further states that plaintiff's disagreement with any security staff directive regarding the deposition is not a ground upon which to refuse to answer appropriate questions, and the Scheduling Order specifically states that "[t]he failure of plaintiff(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." Id. Objections that are made in good faith and in accordance with governing rules, however, are not prohibited. Id.

In his Declaration, defense counsel states that on July 19, 2010, plaintiff was mailed a "Notice of Deposition," informing him that he would be deposed at a correctional facility on August 31, 2010. McCartin Decl. ¶ 4. Exhibit A to the Declaration is a copy of the Notice of Deposition. Defs.' Ex. A. Defense counsel further states that because plaintiff was incarcerated in the Western District of New York at that time, he was going to be moved to Downstate Correctional Facility for the deposition. Id. Defense counsel states that on August 26, 2010, officials attempted to begin plaintiff's transportation to Downstate, but plaintiff refused to be transported. McCartin Decl. ¶ 5. Defendants' Exhibit B is a document entitled "Court Refusal Notice," dated August 26, 2010 and signed by plaintiff and an unidentified Corrections Officer. McCartin Decl. Ex. B.

Defense counsel also states that on August 30, 2010, corrections personnel again tried to transport plaintiff to Downstate, but he refused to go. McCartin Decl. ¶ 5. Defense counsel has included as Exhibit C to his Declaration a document entitled "REFUSAL NOTICE." The notice states that "On August 26, 2010, inmate Gillard, 01A1613, refused to attend his deposition in Gillard v. Smith 9:09-CV-945." McCartin Decl. Ex. C. The inmate refused to sign the document, and the corrections officer "Witness," C.O. B. Jaworski, signed the document on August 30, 2010 at 3:10 p.m. Id.

In his response to this motion for sanctions, plaintiff concedes that he refused to attend the "Court Order [sic] Deposition for good and just causes." (Dkt. No. 67 ¶ 1). Although plaintiff does not indicate to which date or dates he is referring, he states that he was on a visit with his family when he was called to pack his cell in order to be transported to Downstate. Id. Plaintiff claims that one of these family members was his mother, that he had not seen one of these individuals in over 20 years, and that they drove six hours to see the plaintiff. Id. ¶ 2. Plaintiff also states that he had an appointment for a medical procedure, scheduled for September 1, 2010, and was concerned that if he left the facility, and he was not returned in time, the procedure would have to be canceled. Id. ¶ 3. Finally, plaintiff claims that he was preparing for a pro se criminal trial and was concerned that if he were removed from the facility, he would be without his property and be unable to properly prepare for the trial. Id. ¶ 4.

II. Discovery Sanctions

Rule 37(d) of the Federal Rules of Civil Procedure provides that if an individual fails to appear at his own deposition after having received proper notice, the court may take various steps to sanction ...

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