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Wheeler v. Phillips

United States District Court, N.D. New York

March 31, 2014

PETER WHEELER, Plaintiff,
v.
KAREN PHILLIPS, Dept. of Programs, Mid-State Correctional Facility; S. Fall, Sergeant, Mid-State Correctional Facility, Defendants.

PETER WHEELER, Brooklyn, New York.

HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York, MICHAEL G. McCARTIN, ESQ. Assistant Attorney General, Attorney for Defendants, The Capitol, Albany, New York.

REPORT-RECOMMENDATION AND ORDER [1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Peter Wheeler ("Wheeler"), who was previously 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. ยง 1983 alleging defendants violated his rights. Compl. (Dkt. No. 1). Presently pending is defendants' motion to dismiss or in the alternative compel discovery and award appropriate sanctions pursuant to Fed.R.Civ.P. 37 for Wheeler's repeated failure to attend his disposition. Dkt. No. 52. Wheeler has failed to respond to the motion. For the following reasons, it is recommended that defendants' motion to dismiss be granted.

I. Background

On June 27, 2011, Wheeler commenced this action while in DOCCS's custody. Compl. On December 26, 2012, the Court issued a scheduling order in this action which provided, 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 this action pursuant to Fed.R.Civ.P. 37.

Dkt. No. 32 at 3-4 (subsection (1)(D)).

On March 21, 2013, Wheeler was mailed a Notice of Deposition informing him that his deposition was to be conducted on April 10, 2013 at 9:00 a.m. at the Office of the New York State Attorney General in Albany, New York. Dkt. No. 52-2. The Notice of Deposition was sent to Wheeler at the address which he had previously provided to the Court. Dkt. No. 15. Wheeler failed to appear for that deposition. Dkt. No. 52-1 at 2. Wheeler failed to contact defendants prior to the deposition to advise them that he did not intend to appear for his deposition. Id.

By letter motion dated April 17, 2013, defendants requested that the discovery and dispositive motion deadlines be extended due to Wheeler's failure to appear for a deposition. Dkt. No. 40. By text order dated April 19, 2013, the Court extended the deadline for the completion of discovery to May 17, 2013 and the deadline for the filing of dispositive motions to August 16, 2013. Dkt. No. 41. The text order provided, in relevant part, that "Plaintiff is reminded that his failure to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of this action." Id . The text notice was served on Wheeler by mail at the address which he provided to the Court.

On April 19, 2013, defendants sent Wheeler a second notice of deposition. The deposition was scheduled to be conducted on May 6, 2013 at 9:00 a.m. Dkt. No. 52-5. By letter motion filed May 3, 2013, Wheeler asked for an adjournment of the deposition scheduled for May 6, 2013. Dkt. No. 42. In that letter motion, Wheeler indicated he was attempting to retain Ernest Dubose Esq. to represent him in this matter.[2] Id . On May 3, 2013, the Court issued a text order denying Wheeler's request to adjourn the deposition. Dkt. No. 43. The text order which was mailed to Wheeler provided, in relevant part, that "Plaintiff is reminded that his failure to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of this action." Id.

On May 3, 2013, defense counsel contacted Attorney Dubose to ascertain if he was representing Wheeler. Dkt. No. 52-1 at 4. Mr. Dubose was uncertain if he was going to represent Wheeler and asked that the deposition be rescheduled for June, 2013. Id . Defense counsel advised Mr. Dubose that given the plaintiff's position and Mr. Dubose's request he assumed the May 6, 2013 deposition was adjourned. Id . He further advised Mr. Dubose that he would be making a motion to dismiss this claim for various reasons including Wheeler's failure to appear for a deposition. Id.

On July 16, 2013, Mr. Dubose contacted defense counsel to inquire regarding the status of defendants' motion to dismiss based upon Wheeler's failure to appear for a deposition. Dkt. No. 52-1 at 5. Mr. Dubose advised that he would be filing a notice of appearance by July 29, 2013 at which time he would ask for an extension of discovery so that Wheeler could appear at a deposition. Id . Mr. Dubose never filed a notice of appearance.

By letter motion dated August 1, 2013, defendants requested that the Court schedule a conference to address Wheeler's failure to appear for a deposition. Dkt. No. 44. On August 1, 2013, the Court issued a text order scheduling a conference for August 16, 2013. The text notice provided in part that "Plaintiff is reminded that his failure to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of this action." Dkt. No. 45. The Court issued an amended text order rescheduling the conference for September 3, 2013. The amended text order again advised ...


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