United States District Court, N.D. New York
PAUL SMITH Plaintiff Pro Se Malone, New York, of Counsel.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, MICHAEL G. McCARTIN, ESQ., Assistant Attorney General, The Capitol Albany, New York, Attorney for Defendants.
REPORT-RECOMMENDATION AND ORDER 
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff pro se Paul Smith ("Smith"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this action while he was incarcerated pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights. Compl. (Dkt. No. 1). Presently pending is defendants' motion to dismiss the action pursuant to Fed.R.Civ.P. 37 for Smith's failure to attend his deposition and alternatively pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute or comply with a court order. Dkt. No. 68. Smith has failed to respond to the motion. For the following reasons, it is recommended that defendants' motion be granted.
On March 15, 2011, Smith commenced this action while in DOCCS custody. Compl. As is relevant to the pending motion, on May 29, 2012, the Court issued a scheduling order in this action which included, in relevant part, that
[t]he defendant(s) are granted leave to take the deposition of plaintiff(s) pursuant to Fed.R.Civ.P. 30(a)(2)(B). Defense counsel shall provide plaintiff(s) with notice of the date of the deposition... PLAINTIFF(S) SHALL TAKE NOTICE that... [t]he failure of the 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.
Dkt. No. 52, p. 3-4, (I)(D).
On July 11, 2012, Smith was mailed a Notice of Deposition informing him of his deposition to be held on August 17, 2012 at Great Meadow Correctional Facility. Dkt. No. 68-4. That deposition was commenced; however, when questioning began about the instant claim Smith got aggravated and upset that he was being deposed during Ramadan and that because of his fasting he was no longer feeling well. Smith Dep. (Dkt. No. 68-3) at 39-46. Smith reached the point where he refused to answer any further questions and the deposition was concluded, though it was incomplete. Id. at 46-47. Smith "did not object to his deposition proceeding during Ramadan, either in writing after receiving notice of the deposition date, nor verbally at the beginning of his deposition testimony." McCartin Decl. (Dkt. No. 68-2) ¶ 6.
Defendants then filed a motion for sanctions. Dkt. No. 64. The undersigned scheduled a telephone conference to discuss the issues with the parties, which was held on May 15, 2013. Dkt. No. 65. At the conclusion of the conference, the Court issued a written order denying defendants' motion for sanctions without prejudice and with leave to renew if Smith failed to appear and participate in a second deposition, which was to be conducted by defendants prior to Ramadan on July 9, 2013. Dkt. No. 66; see also McCartin Decl. ¶¶ 11-12.
On May 15, 2013, Smith was served with a notice of deposition stating that the deposition would be taken on June 27, 2013 at 11:00 AM at Great Meadow Correctional Facility. Dkt. No. 68-6 at 2. Smith then filed a letter with the undersigned requesting that McCartin come to Upstate Correctional Facility to conduct the deposition due to "the body count" and an unspecified "fear of [his] life...." Dkt. No. 67. However, the letter made clear that Smith received the deposition notice.
On June 20, 2013, an Upstate Corrections Officer went to Smith's cell "to ensure that he would be transported... to Great Meadow Correctional Facility for a deposition in the above-entitled action to take place on June 27, 2013. At that time, [Smith] refused to pack up and prepare himself to be moved." Charland Decl. (Dkt. No. 68-7) ¶ 3. Accordingly, an interdepartmental memorandum was authored which read "I, SMITH, PAUL..., am refusing to be sent to my upcoming Deposition Appearance... I understand that the Court will receive a copy of this as notice so that they are aware of my refusal and that my said refusal will result in a dismissal of this case." Dkt. No. 68-8. Smith refused to sign the document, as indicated by the Upstate Corrections Officer. Id .; see also Charland Decl. ¶ 4.
This motion followed. Dkt. No. 68. Smith has filed no opposition to said motion. Since this motion was ...