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Rivera v. Fisher

United States District Court, Second Circuit

July 11, 2013

JOSE RIVERA, Plaintiff,
MR. BRIAN FISHER, Commissioner of the New York State Department of Correctional Facility (DOCS), MR. RICHARD ROY, Commissioner/Inspector General of the New York State Department of Correctional Services (DOCS, I.G.), MR. JAMES CONWAY, Superintendant, Attica Correctional Facility, LIEUTENANT (LT.) J. GILMORE, Watch Commander of Attica Correctional Facility on January 11, 2007, SERGEANT (SGT.) MR. THOMAS C. HAPPELL, Correctional Supervisor of Attica Correctional Facility, C-Block Yard, on January 11, 2007, and CORRECTION OFFICER (CO) MR. DAVID SPOYER, Attica Correctional Facility C-3 yard entrance on January 11, 2007, Defendants.

PAUL A. GOLDBERGER, of Counsel New York, New York, and STACEY ANNE VAN MALDEN, of Counsel Bronx, New York, Attorneys for Plaintiff.

ERIC T. SCHNEIDERMAN, Attorney General, State of New York Attorney for Defendants.

KATHLEEN M. KAZOR, Assistant Attorney General, of Counsel Main Place Tower Buffalo, New York.


LESLIE G. FOSCHIO, Magistrate Judge.


This case was referred to the undersigned by Honorable Richard J. Arcara on August 10, 2011, for all pretrial matters. The matter is presently before the court on Defendants' motion to dismiss for failure to prosecute (Doc. No. 36), filed March 22, 2013.


On June 16, 2009, Plaintiff Jose Rivera ("Plaintiff"), an inmate then incarcerated at Attica Correctional Facility ("the correctional facility" or "Attica"), proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, based on an assault on January 11, 2007, by two other inmates, gang members in the C-Block exercise yard at the correctional facility, during which Plaintiff's face was slashed with a razor. Plaintiff maintains the assault was intended as retaliation against Plaintiff who previously acted as an informant at Sing Sing Correctional Facility ("Sing Sing"), where Plaintiff was incarcerated in the 1990s. Plaintiff alleges Defendants, employees of New York State Department of Corrections and Community Supervision ("DOCCS"), violated his Eighth Amendment rights by failing to protect Plaintiff from the assault and failing to maintain a prison policy requiring each inmate pass through a metal detector before entering an exercise yard. Plaintiff seeks relief for injuries sustained as a result of the assault, including permanent facial disfigurement, nerve damage, and other physical and psychological problems. The Complaint is supported by 66 pages comprising exhibits A through L ("Plaintiff's Exh(s). __"), including medical records, correctional facility reports, and inmate grievances filed by Plaintiff all in connection with the assault. By Decision and Order filed March 8, 2010 (Doc. No. 5) ("March 8, 2010 D&O"), Plaintiff's motion for appointment of counsel (Doc. No. 3) was denied. March 8, 2010 D&O at 13.

Copies of the interrogatories Plaintiff posed to each Defendant were filed on November 5, 2010 (Docs. Nos. 6 through11) ("Plaintiff's interrogatories"). To date, Defendants have filed no responses to Plaintiff's interrogatories. Defendants' answer was filed on December 31, 2010 (Doc. No. 13). A Scheduling Order filed February 15, 2011 (Doc. No. 16) ("First Scheduling Order"), established, inter alia, March 31, 2011 as the deadline for motions to join parties or amend the pleadings, December 31, 2011 as the discovery cutoff, with Plaintiff to initiate discovery through interrogatories and document requests by April 15, 2011. First Scheduling Order ¶¶ 1, 3. Expert witnesses were to be identified by Plaintiff by August 31, 2011, and by Defendants by October 31, 2011. Id. ¶ 4. On March 30, 2011, Plaintiff filed a declaration (Doc. No. 17) ("Plaintiff's Declaration"), advising Plaintiff had filed Plaintiff's Declaration to ensure his compliance with the First Scheduling Order's direction that all motions to join parties or to amend the Complaint be filed by March 31, 2011. Attached as exhibits to Plaintiff's Declaration are exhibits A thorough O (Docs. Nos. 17-1 through 17-5) consisting of more than 100 pages containing much information that would be responsive to Defendants' probable discovery requests were they to serve any.

According to an April 20, 2011 Text Order (Doc. No. 18), Plaintiff advised he had retained Kevin Bowman, Esq. ("Bowman"), as counsel, and Bowman was directed to file a notice of appearance within ten days. Bowman, however, never filed the notice of appearance as directed.

On August 10, 2011, Plaintiff moved to extend to August 31, 2011, the deadline for initiating discovery (Doc. No. 21) ("First Motion to Extend Discovery"), asserting Bowman was not approached to represent Plaintiff in this action until April 2011, that although Plaintiff executed a retainer agreement with Bowman on June 16, 2011, and Bowman did not receive the executed retainer agreement until July 21, 2011, after Plaintiff was transferred to another correctional facility, such that it was impossible for Plaintiff to initiate discovery by July 31, 2011. First Motion to Extend Discovery ¶¶ 4-7. Plaintiff indicated Defendants concurred with extending Plaintiff's discovery initiation deadline to August 31, 2011. Id. ¶ 7. On August 31, 2011, with the First Motion to Extend Discovery still unaddressed, Plaintiff filed Discovery Demands (Doc. No. 22), a Demand for Documents (Doc. No. 23), and a motion to extend the deadline for Plaintiff to identify expert witnesses and provide expert reports to October 31, 2011, advising Defendants did not oppose such request (Doc. No. 24) ("Motion to Extend Expert Disclosure"). Motion to Extend Expert Disclosure ¶ 3.

At a scheduling conference held on October 24, 2011, Defendants requested, and the undersigned granted, an extension of 60 days to respond to Plaintiff's discovery requests, and Plaintiff's First Motion to Extend Discovery and Motion to Extend Expert Disclosure were dismissed as moot. October 24, 2011 Minute Entry (Doc. No. 26). An amended scheduling order filed October 25, 2011 (Doc. No. 27) ("Amended Scheduling Order"), required mandatory disclosures be made by December 8, 2011, discovery be completed by August 31, 2012, and experts be identified by Plaintiff by October 12, 2012, and by Defendants on December 31, 2012. Amended Scheduling Order ¶¶ 1, 3, and 5. The docket contains no further activity until July 24, 2012 when Plaintiff's deposition was noticed for August 29, 2012 (Doc. No. 29).

On October 11, 2012, Plaintiff moved to amend the Amended Scheduling Order (Doc. No. 32), seeking an extension of 60 days of all deadlines to permit Bowman to address financial issues that had arisen between Bowman and Plaintiff. On October 15, 2012, Plaintiff's motion to amend was granted and the First Amended Scheduling Order (Doc. No. 34) ("First Amended Scheduling Order"), was filed, establishing December 12, 2012, as the deadline for Plaintiff to identify experts, February 28, 2013, as the deadline for Defendants to identify experts, and scheduling a settlement conference for February 20, 2013. First Amended Scheduling Order ¶¶ 2, 3. When Plaintiff's counsel, Bowman, failed to appear at the February 20, 2013 settlement conference, the settlement conference was rescheduled for March 21, 2013. February 20, 2013 Minute Entry (Doc. No. 35). Plaintiff's counsel also failed to appear at the rescheduled March 21, 2013 settlement conference, causing the undersigned to observe Defendants could move to dismiss the action based on Plaintiff's failure to prosecute, and to extend Defendants' deadline for filing dispositive motions to July 29, 2013. March 21, 2013 Minute Entry (Doc. No. 41).

On March 22, 2013, Defendants filed the instant motion seeking to dismiss the action based on Plaintiff's failure to prosecute (Doc. No. 36) ("Defendants' Motion"), the Memorandum of Law in Support of Defendants' Motion to Dismiss for Failure to Prosecute (Doc. No. 37) ("Defendants' Memorandum"), the Declaration of Brian P. Rider (Doc. No. 38) ("Rider Declaration"), and the Declaration of Assistant Attorney General Kathleen M. Kaczor ...

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