MARTIN A. SANTIAGO, Plaintiff,
PATRICK M. JOHNSON, Physician Assistant, Upstate Correctional Facility; and N. SMITH, Nurse Administrator Upstate Correctional Facility, Defendants.
DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
This matter comes before the Court following a Report-Recommendation filed on April 29, 2013, by the Honorable Therèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d) of the Northern District of New York. Dkt. No. 14 ("Report-Recommendation"). The Clerk has sent the entire file to the undersigned, including the timely Objections by Plaintiff Martin A. Santiago ("Plaintiff") and by Defendants Patrick M. Johnson and N. Smith (collectively, "Defendants"). Dkt. Nos. 26 ("Defendants' Objections"); 31 ("Plaintiff's Objections"). For the following reasons, the Court approves and adopts the Report-Recommendation as modified by this Decision and Order.
The Court assumes the parties' familiarity with the factual and procedural background of this case as set forth in detail in the Report-Recommendation. See generally Report-Rec. The Court therefore recites only the facts and procedure necessary to address the parties' Objections.
Defendants twice notified Plaintiff of scheduled depositions in this case, each time warning Plaintiff that if he failed to attend the depositions, he could be subject to sanctions "including dismissal of this lawsuit in its entirety." Dkt. Nos. 20-4 ("Defendants' Memorandum"); 20-10. Plaintiff neither attended the depositions nor contacted Defendants to reschedule them. Dkt. No. 20-1 ¶¶ 6, 13. The court reporter present at each failed deposition charged Defendants $85.00. Id . ¶¶ 7, 15.
On October 24, 2012, Defendants filed a Motion pursuant to Federal Rule of Civil Procedure 37(b) to dismiss or strike the Complaint as a sanction for Plaintiff's failure to attend the depositions. Dkt. Nos. 1 ("Complaint"); 20 ("Motion"). Plaintiff did not oppose the Motion. See generally Dkt. In her Report-Recommendation, Judge Dancks recommends that the Court deny the Motion but order Plaintiff to reimburse Defendants for the $85.00 charge they incurred as a result of Plaintiff's failure to appear at the second deposition. Report-Rec. at 9. Judge Dancks also recommends that the Court compel Plaintiff to attend another deposition. Id.
III. STANDARD OF REVIEW
A district court must review de novo any objected-to portions of a magistrate judge's report-recommendation or specific proposed findings or recommendations therein and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int'l Bhd. of Teamsters , 167 F.Appx. 230, 232 (2d Cir. 2006); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 F.Appx. 47, 48 (2d Cir. 2011); Barnes, 2013 WL 1121353, at *1; Farid v. Bouey , 554 F.Supp.2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320 , 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument."). A district court also "may receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b)(3).
A. Defendants' Objections
1. Reimbursement for the First Failed Deposition
Judge Dancks recommends that the Court not order Plaintiff to reimburse Defendants for the first failed deposition charge, because she found that Plaintiff was incarcerated on the scheduled date of that deposition and therefore "failed to appear for reasons beyond his control." Report-Rec. at 6, 9. Defendants object to this portion of the Report-Recommendation. See Defs.' Objs. at 1. While admitting that Plaintiff's failure to appear at the deposition was due to factors beyond his control, Defendants argue that Plaintiff's failure to notify Defendants that Plaintiff had been reincarcerated as of the first deposition date was "fully within his control." ...