RALPH BUCK PHILLIPS Plaintiff, pro se.
KRISTEN M. QUARESIMO, Asst. Attorney General, KELLY L. MUNKWITZ, Asst. Attorney General, Attorneys for Defendants.
ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Frederick J. Scullin, Senior United States District Judge. In this pro se complaint, brought pursuant to 42 U.S.C. § 1983, plaintiff alleges that while he was incarcerated at Clinton Correctional Facility, the defendants violated a variety of his constitutional rights by subjecting him to inadequate conditions of confinement, issuing false misbehavior reports, violating his religious rights, and obstructing his right to file grievances. ( See generally Compl.) (Dkt. No. 1). Plaintiff seeks declaratory, injunctive, and monetary relief.
Currently before the Court is defendants' motion pursuant to Rule 37(b) of the Federal Rules of Civil Procedure ("Rules") to dismiss the complaint as a sanction for plaintiff's failure to attend his scheduled deposition. (Dkt. No. 46). For the following reasons the court recommends that the motion be granted and plaintiff's complaint be dismissed.
Plaintiff filed this action on January 12, 2012. (Dkt. No. 1). His motion to proceed in forma pauperis was granted and service was ordered on April 9, 2012. (Dkt. No. 5). I issued a Mandatory Pretrial Discovery and Scheduling Order ("the Scheduling Order") on August 10, 2012. (Dkt. No. 32). The Scheduling Order grants defendants leave to take plaintiff's deposition and explains the proper procedure for doing so. (Dkt. No. 32 at 3-4). It specifically advises plaintiff 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. at 4.
When counsel for defendants arrived at plaintiff's facility for his noticed deposition on January 11, 2013, two corrections officers advised her that plaintiff refused to leave his cell. ( See Quaresimo Decl. ¶ 7 & Ex. C; Munkwitz Decl. ¶ 5). Plaintiff provided a letter to one of the corrections officers in which he stated that he "decided that any further litigation is merely an act of futility, " asserting that the judicial system is "as corrupted as those who have violated me." (Munkwitz Decl., Ex. A). Following plaintiff's refusal to appear, counsel for defendants sent plaintiff a Stipulation of Discontinuance. (Quaresimo Decl., ¶ 11 & Ex. D). Plaintiff did not respond. (Quaresimo Decl., ¶ 12).
Defendants subsequently filed a motion to dismiss. (Dkt. No. 46). Plaintiff did not respond to this motion. Based on plaintiff's failure to attend his deposition, his letter to counsel for defendants, and his failure to respond to the motion to dismiss, it appeared to the court that plaintiff intended to voluntarily dismiss this action. Therefore, the court issued an order giving plaintiff an opportunity to advise the court whether or not he intended to proceed with this action. (Dkt. No. 48 at 4) ("September Order"). The September Order " specifically warn[ed] plaintiff that if he continues to disobey orders of the court, dismissal of his case will be recommended. " ( Id. ). The court further explained that even a pro se plaintiff is required to comply with the court's orders. ( Id. ). The court directed plaintiff to advise the court within thirty days whether he intended to proceed with the action or withdraw it. ( Id. at 5).
The Clerk served the September Order on plaintiff via regular mail. (Dkt. Entry No. 48). However, the order was returned to the court as undeliverable with a notation on the envelope that plaintiff refused two attempts by facility staff to deliver the order to him. (Dkt. No. 49).
II. Motion to Dismiss
A. Failure to Prosecute
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the action, or comply with the Federal Rules or an order of the court. See Dansby v. Albany County Correctional Facility Staff, 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962)). The Second Circuit has held that, generally, a determination of whether to dismiss for failure to prosecute involves a consideration of: 1) whether plaintiff's failure caused a delay of considerable duration; 2) whether plaintiff was given notice that further delay would result in dismissal; and 3) whether defendants will be prejudiced by further delay. United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). The court must also carefully balance the need to alleviate court ...