United States District Court, N.D. New York
ANGEL FERRER, Pro Se, a/k/a Gary Michael King, c/o Lee Anne King, Brooklyn, NY, for plaintiff.
TIFFANY M. RUTNIK, ESQ., Assistant Attorney General, ERIC T. SCHNEIDERMAN, Office of the Attorney General, State of New York, Albany, NY, for defendants.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
Pro se plaintiff Angel Ferrer, who is also known as Gary Michael King and is a former New York State prison inmate, has commenced this action asserting civil rights claims, pursuant to 42 U.S.C. § 1983, against the superintendent and deputy superintendent of security of the facility in which he was confined at the relevant times. During the course of pretrial discovery in the action, the court entered an order that, inter alia, granted defendants' leave to take plaintiff's deposition. Despite that order, however, plaintiff failed to appear for deposition on three separate occasions. Based upon those failures, defendants now seek dismissal of plaintiff's complaint, pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that defendants' motion, which plaintiff has not opposed, be granted.
Plaintiff initiated this action on January 24, 2013. Dkt. No. 1. At the time, plaintiff was a New York State prison inmate in the custody of the New York State Department of Corrections and Community Supervision, and confined in the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Id. Following commencement of the action, plaintiff was granted leave to proceed in forma pauperis. Dkt. No. 13.
Following the joinder of issue, the court entered a standard mandatory pretrial discovery and scheduling order issued in all inmate cases, pursuant to Rule 16 of the Federal Rules of Civil Procedure, on September 6, 2013. Dkt. No. 26. That order set out certain obligations of the parties regarding discovery, specifically permitted leave to defendants to take plaintiff's deposition, pursuant to Rule 30(a)(2)(B) of the Federal Rules of Civil Procedure, and established deadlines for the completion of discovery and the filing of dispositive motions. See generally id. That order was mailed to plaintiff at Upstate, the address provided by him to the court and defendants at the time he commenced the action. Id. There is no indication in the court's records that the order was returned as undeliverable.
On November 12, 2013, defendants' counsel served a notice upon the plaintiff requiring him to appear for deposition in Albany, New York on December 6, 2013. Dkt. No. 45-1 at 7. According to the accompanying declaration of service, the notice was mailed to the plaintiff at the following address on November 13, 2013:
Id at 8. Plaintiff, however, failed to appear for that scheduled deposition. Id. at 2.
Following that failed deposition, defendants' counsel spoke twice by telephone with the plaintiff. Dkt. No. 45-1 at 10. During one of those conversations, Ferrer agreed to appear for deposition on December 17, 2013. Id. Defendants' counsel thereafter mailed a letter to the plaintiff at the above-mentioned Brooklyn address memorializing those telephone conversations regarding his failure to appear and the rescheduling of the deposition to December 17, 2013. Id. at 10-11. Despite his promise, however, plaintiff again failed to appear for deposition on December 17, 2013. Id. at 2.
Defendants' counsel and the plaintiff spoke again by telephone on December 17, 2014, regarding the scheduled deposition. Dkt. No. 45-1 at 2, 14. During that conversation, plaintiff agreed to appear for deposition on January 2, 2014. Id. That conversation was similarly confirmed in a letter sent to the plaintiff at the above-mentioned Brooklyn address on December 17, 2013. Id. at 14. Plaintiff failed yet again to appear for the deposition on January 2, 2014. Id. at 2. When plaintiff failed to appear, defendants' counsel placed on the record an account of a conversation she had with the plaintiff that day, in which he stated he was financially unable to attend the scheduled deposition. Id. at 17-24.
On January 3, 2014, defendants' counsel filed a letter motion requesting extensions of the discovery and dispositive motion filing deadlines, and an order directing the plaintiff to appear for his deposition. Dkt. No. 40. A telephone conference with the court was thereafter scheduled for January 10, 2014, and defendants' counsel was directed to inform the plaintiff of the date and time of the conference. Text Entry Dated 01/07/2014. Defendants' counsel has advised, however, that she was unable to reach plaintiff, and that her calls were unanswered and not directed to voicemail. Dkt. No. 45-1 at 3.
The telephone conference before the court went forward as scheduled on January 10, 2014, at which defendants appeared by counsel but plaintiff failed to participate. Dkt. No. 41. Defendants were granted an extension of the discovery deadline to March 6, 2014, and the dispositive motion filing deadline to June 6, 2014. Id. Defendants were also granted leave to file a motion to dismiss if plaintiff failed to appear at a deposition on a date to be chosen by defendants, and ordered by the court. Id.
By text order issued on January 10, 2014, plaintiff was directed to appear for deposition on February 21, 2014, in Albany, New York, and was expressly advised that his failure to appear on that date could result in dismissal of his complaint. Dkt. No. 42. According to court records, that order was mailed to and received by plaintiff. Dkt. Nos. 42, 44. Defendants thereafter served on plaintiff a notice of deposition scheduled for February 21, 2014, in Albany, New York. Dkt. 45-1 at 30-31. Plaintiff again failed to appear for his deposition on that date. Id. at 4. On March 18, 2014, defendants moved seeking dismissal of plaintiff's complaint based upon his failure ...