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Michel Toliver v. Commissioner of Nyc D.O.C. et al

November 3, 2011


The opinion of the court was delivered by: Denise Cote, District Judge:


The defendants have requested that the complaint in this case be dismissed pursuant to Rules 37(b)(2) and 41(b), Fed. R. Civ. P. The complaint is dismissed with prejudice.


The plaintiff Michael Toliver ("Toliver"), proceeding pro se, filed the complaint in this case on August 2, 2010, seeking relief pursuant to 28 U.S.C. § 1983 for violations of his constitutional rights.*fn1 Toliver alleges that retaliatory actions were taken against him by members of the New York City Department of Correction ("NYC DOC") for complaining that corrections officers assaulted him.

An initial pretrial conference was held on March 4, 2011 and by Order of the same day, discovery was scheduled to close on July 29, 2011. Toliver is currently an inmate at the Shawangunk Correctional Facility ("SCF"), a facility of the New York State Department of Correctional Services ("DOCS"). The defendants therefore arranged to take the plaintiff's deposition by video conference at the Southern District Courthouse on July 25. Toliver does not dispute that he was given notice of the deposition. The Court's July 7 Order to Produce Inmate for Deposition (the "Production Order") directed prison officials at SCF to make Toliver available on July 25 for the videoconference deposition.

The deposition commenced at approximately 11:15 a.m. on July 25.*fn2 At the outset, Toliver stated that he did not have a copy of the Production Order, and refused to go forward without "verification" from the Court. When defense counsel offered to hold a copy of the Production Order up to the camera for Toliver's examination, Toliver insisted that he had a right to a hard copy of the order. Defense counsel then contacted the Court and relayed to Toliver that the Court could fax a copy of the Production Order to SCF, or, in the alternative, Toliver could speak directly with the Court. Toliver stated that he would only be willing to go forward if a hardcopy were faxed and he had an opportunity to speak directly to the Court.

The Court thereupon joined the parties by telephone conference. Defense counsel explained that Toliver was unwilling to move forward with his deposition because he had not received a copy of the Production Order and because Toliver wanted to hear directly from the Court as to whether the deposition should go forward. The Court explained that it was not unusual for a prisoner's deposition to be taken by video conference, and told Toliver that "I want to give you an opportunity to be heard about it, is there anything would you [sic] like to tell me?" Toliver confirmed to the Court that he had received notice of his scheduled deposition from defendants, but claimed that that notice was insufficient to participate. He stated that he required "a copy of your Honor's indication and an order that [he] should be a participant today." The Court then explained to Toliver that no court order is necessary to require a party to a lawsuit to participate in a deposition, and that the Production Order merely allowed the deposition to go forward by videoconference. Toliver was further advised that failure to participate could result in sanctions being entered against him, including dismissal of his action. The Court then ordered Toliver to participate in the deposition. The parties then thanked the Court for joining their conference call.

After the telephone conference with the Court ended, defense counsel inquired whether Toliver was now ready to proceed. Toliver asked about the faxed copy of the Production Order. The parties went off the record for nearly an hour. At 12:28 p.m., Toliver confirmed that he had in his possession a faxed copy of the Production Order. He was still unwilling to proceed, however. Having demanded and received a faxed a copy of the Production Order, Toliver then insisted that the copy remain in his possession or be destroyed in front of him. Defense counsel stated that he had been informed by SCF officials that facility regulations required that a corrections officer retain control of the document. Toliver again stated that he was unwilling to go forward under those circumstances. Toliver demanded to speak with a Sergeant or other high-ranking officer with DOCS. He expressed concern that a document containing the caption of the case, including individually-named defendants would present a threat to his well-being and could result in retaliation by DOCS staff, even though the defendants in his action are members of the NYC DOC, which is a New York City agency, rather than the state facility at which the plaintiff is incarcerated.

Defense counsel then sought to confirm with Toliver that the dispute over control over the document would prevent Toliver from testifying because of a perceived security concern. After Toliver stated that this was "possibly" the case, defense counsel suggested that the parties adjourn the deposition. Toliver again asked to see a supervisory corrections officer. Upon the arrival of an SCF Inmate Record Coordinator ("IRC"), Toliver was again advised that facility regulations required that the document remain in the custody of SCF officials. The IRC stated that the document would be placed in Toliver's inmate legal folder.

After the IRC's departure, defense counsel asked Toliver whether it was still Toliver's position that he could not go forward with the deposition. Toliver responded that the IRC was a "civilian," and thus couldn't tell "what's going to happen to a document if it's a security concern."

In the midst of contesting the IRC's account of what would happen to the document, Toliver apparently greeted a particular corrections officer by name. Several minutes later, his dispute over the document still unresolved, Toliver raised a new issue. In response to defense counsel's request that Toliver state for the record why he was unable to participate, Toliver stated that the officer that he had greeted presented a security threat. According to Toliver, that officer had threatened Toliver and used racial and homophobic slurs against him following an earlier deposition in a different matter. Defense counsel again reminded Toliver of the Court's order to participate. In response, Toliver stated that the officer "has threatened bodily harm" and that Toliver had "been made a victim already after our deposition, I have been made a victim, physical victim already." He demanded the removal of the officer before proceeding.

Defense counsel sought clarification from Toliver as to whether Toliver would participate. Toliver stated that he would not, and demanded to see a Sergeant. When defense counsel offered to call the Court because of Toliver's security concerns, Toliver initially told him to stop, but later agreed to participate in such a call. Defense counsel was unable to reach the Court. Upon clarifying with Toliver that the presence of the officer outside of the deposition room would prevent Toliver from participating in the deposition, defense counsel sought to adjourn the deposition and requested that Toliver confirm that he understood. For awhile, Toliver refused to answer or say anything. When defense counsel indicated for the record that the deposition was adjourned, Toliver then stated that he was willing to proceed. Defense counsel, however, adjourned the deposition since there was no longer enough time to complete the deposition that day. The session, which began at 11:15, ended over two and a half hours later, at 1:54 p.m., without the deposition having begun.

By letter of July 26, 2011, defendants requested that Toliver's complaint be dismissed with prejudice for failure to prosecute, Fed. R. Civ. P. Rule 41(b), and as a sanction for failure to participate his deposition, Rule 37(b)2). On September 2, Toliver was ordered to show in writing why defendants' request should not be granted. By letters of September 9 and October 12, Toliver confirmed that he had refused to participate in the deposition.*fn3 Toliver alleged that he had previously been deposed by the same Assistant Corporation Counsel at the SCF in a different matter, that corrections officers had been present at that deposition, and that after the deposition he had been physically assaulted by officers in an adjacent hallway. Toliver claimed that similar circumstances at the start of the July 25 deposition put him at renewed risk and that concern for his own safety prompted his refusal to participate. Toliver further claimed that defense counsel exploited Toliver's position as an inmate to "intimidate . . . and leave me vulnerable for officers [sic] retaliation," and that defense counsel "continued asking [Toliver] ...

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