The opinion of the court was delivered by: John T. Curtin United States District Judge
In accordance with this court's prior orders, defendants have moved pursuant to Rule 41(b) of the Federal Rules of Civil Procedure to dismiss the complaint in this action for failure to prosecute (Item 194). Plaintiff has filed a responding unsworn declaration (Item 197) and memorandum of law (Item 198). For the following reasons, defendants' motion is granted.
This action was filed in February 1995, over seventeen years ago. Plaintiff sought money damages from several employees of the New York State Department of Correctional Services ("DOCS"), pursuant to 42 U.S.C. § 1983, based on alleged constitutional violations stemming from a search of his cell at the Attica Correctional Facility by Corrections Officer John Bennis in January 1994. Plaintiff claims that Officer Bennis illegally seized medications which resulted in the withholding of medical treatment, and planted a weapon which became the focus of a disciplinary proceeding at which plaintiff was deprived of his due process rights, all in retaliation for exercising his right of access to the courts through the initiation of other litigation and grievance proceedings.
In an order dated August 28, 1996, this court granted summary judgment in favor of defendants dismissing the complaint in its entirety. Then, in May 1998, Court of Appeals for the Second Circuit vacated the order of dismissal and remanded the case, finding genuine issues of fact with respect to those portions of plaintiff's retaliation claim concerning the cell search and the disciplinary proceedings. See Davidson v. Bennis, 152 F.3d 917, 1998 WL 391112 (2d Cir. 1998) (unpublished disposition).
On remand, this court appointed counsel to represent plaintiff, and then conducted a series of conferences to determine the scope and timing of discovery and to resolve several disputes regarding document production and deposition practice. In November 2000, the court issued an order directing plaintiff to appear for his own deposition, with the caveat that failure to appear could result in dismissal of the case (see Item 92). On the scheduled date plaintiff's counsel and defense counsel traveled from Buffalo to the Elmira Correctional Facility where plaintiff was being housed, but plaintiff refused to participate in the deposition because of a disagreement over whether the door to the deposition room should be closed or left ajar. As a result of this incident, defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 37(d) (Item 94).
In an order dated May 29, 2001, the court denied the motion and afforded plaintiff one more opportunity to submit to a deposition, again with the caveat that refusal to attend would result in dismissal of the case (Item 118). The court also recited examples of undue delays in the proceedings in this and other matters resulting from plaintiff's conduct, including his refusal to attend a court-ordered conference in June 1996 and his refusal to be deposed in relation to two other lawsuits pending in this court. The court found that plaintiff's conduct:
. demonstrated a preference for unnecessary delay over timely prosecution of his own claims. This series of incidents is also indicative of how plaintiff has often attempted to use the limited jurisdiction of his § 1983 actions to further goals completely unrelated to the subject matter of his case before the court. In the words of one State court jurist, plaintiff "appears to constantly be attempting to place obstacles in the way of ordinary and proper daily functioning of" correctional facilities, as well as this court.
Id. at 3-4 (quoting Davidson v. State of New York, Claim No. 72036, at 2 (N.Y.Ct.Cl. July 16, 1990) (Benza, J.), attached as Exh. B to Item 101).
Subsequently, an order was entered in all nine of plaintiff's cases then pending before this court staying all scheduled depositions until such time that plaintiff could provide assurances that his medical condition would allow him to participate (see Item 120). The court also suggested that the parties pursue the alternative of conducting the deposition by video conferencing, which was ultimately accomplished in this case on July 19, 2004.
After denying plaintiff's pro se motion for default judgment related to allegations of denial of medical treatment by DOCS' employees at the Elmira Correctional Facility in retaliation for bringing yet another lawsuit in this district (Davidson v. Desai, 03-CV-121S, assigned to Judge William M. Skretny), the court set a schedule for summary judgment in this case, reminding plaintiff to correspond with his assigned counsel and not directly with the court (see Item 166). As the time for filing the motion approached, the court received a letter from defense counsel indicating that upon further review of the file, and in light of the Second Circuit's prior ruling, he decided not to make the summary judgment motion. Accordingly, the court issued an order scheduling jury trial for November 14, 2005 (see Items 174 & 176).
Plaintiff continued to communicate directly with the court, reiterating his allegations of denial of appropriate medical treatment and requesting a video conference to address his concerns about trial accommodations. The court then issued an order scheduling a video conference for October 27, 2005, with the following caveat:
All concerned parties are directed to make every reasonable effort to accomplish the video conference in the interest of moving this case forward. Any conduct attributable to plaintiff counterproductive to this result, or otherwise deemed by the court to be a failure to adhere to the directives of this order, shall be considered grounds for dismissal of the action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). (Item 182). The trial was adjourned generally (id.).
The court and counsel made appropriate arrangements for the video conference to take place at the courthouse, but - notwithstanding the explicit warning in the scheduling order - plaintiff refused to participate at the scheduled time, complaining about the prison's policy requiring the presence of a corrections officer in the conference room. The court was unable to resolve the matter to plaintiff's satisfaction, and adjourned the video conference.
In the meantime, plaintiff's counsel moved to withdraw from his assigned representation, citing plaintiff's refusal to assist in the preparation for trial compounded by the inability of counsel to earn plaintiff's trust and confidence (see Item 179). In an order dated December 14, 2005, the court granted counsel's motion to withdraw and declined to appoint another attorney, noting not only plaintiff's ability to adequately present his case without the assistance of counsel, but also his demonstrated inability to engage in a ...