United States District Court, S.D. New York
Candido Jerez, Plaintiff, Pro se, Stratford, CT.
For City of New York, Defendant: Daniel Harrison Oliner, Erica Michelle Haber, LEAD ATTORNEYS, New York City Law Department, New York, NY.
For Officer Hedges, Shield Number 10196, C.O. Semidey, #8738, Defendants: Daniel Harrison Oliner, LEAD ATTORNEY, New York City Law Department, New York, NY.
REPORT AND RECOMMENDATION TO THE HONORABLE ANALISA TORRES
FRANK MAAS, United
States Magistrate Judge.
The Defendants in this civil rights action brought by pro se plaintiff Candido Jerez (" Jerez") seek its dismissal pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure, for want of prosecution. For the reasons set forth below, I recommend that the Court grant the Defendants' motion.
On October 12, 2013, Jerez filed this action, in which he alleges that two correctional officers at the Otis Bantum Correctional Center at Rikers Island subjected him to excessive force. (See Compl. (ECF No.2); Am. Compl. (ECF No. 24)). Your Honor then referred the case to me for general pretrial purposes on February 11, 2014. (ECF No. 8). After the City identified the two " John Doe" correctional officers named in the original complaint, I held a telephone conference on August 7, 2014. During that conference, I directed that the complaint be deemed amended to name those officers and that all discovery be completed by November 7, 2014. I also directed that a further telephone conference be held on November 12, 2014. (ECF No. 22).
In early September 2014, the Defendants served Jerez -- at both Rikers Island and at an address he provided upon his release from custody -- with interrogatories, requests for the production of documents, and releases for the disclosure of Jerez's medical records. (See ECF No. 27). On November 10, 2014, after Jerez failed to respond, I directed that he serve his discovery responses and authorize the release of his medical records by November 21, 2014. (ECF No. 28).
On November 12, 2014, I held the previously-scheduled telephone conference, but defense counsel could not locate Jerez, who failed to appear. I therefore entered an order that same day directing Jerez to provide the Court and opposing counsel " with his personal cell phone (or 'Medicaid cell phone') number if he ha[d] one, " and scheduled a further telephone conference for January 9, 2015. (ECF No. 30). On November 17, 2014, I extended Jerez's time to respond to the Defendants' discovery requests to November 28, 2014, but cautioned that his failure to comply with this deadline would likely result in my recommendation that his case be dismissed for want of prosecution. (ECF No. 31).
Around this time, I received a letter from Jerez indicating that he has no phone. (ECF No. 32). Jerez further stated that he had come to the courthouse prepared to meet with me, but that this was " severely hard according to court proto[col]." (Id.). Accordingly, by memo endorsement dated November 18, 2014, I converted the January 9 telephone conference to an in-person conference as Jerez requested. (ECF No. 34). Moreover, I again cautioned Jerez that he must respond to the Defendants' discovery requests and provide authorizations by November 28, 2014. (ECF No. 34). Copies of my directives dated November 12, 17, and 18, were sent to Jerez at the last address that he had provided to the Court by both certified mail, return receipt requested, and by regular mail. The copies sent by certified mail were returned as unclaimed, but the duplicates sent to him by regular mail were not. Nevertheless, despite having been given repeated warnings, Jerez has failed to respond to the City's discovery requests. (See ECF No. 36).
Jerez was arrested on December 16, 2014, and he remains in custody at the Anna M. Kross Correctional Facility at Rikers Island. Because he could not appear at the January 9, 2015 conference in person, my Chambers requested that counsel for the Defendants make arrangements for Jerez to appear by telephone. At the scheduled date and time, however, the Department of Corrections notified the Defendants' counsel, Assistant Corporation Counsel Daniel Oliner, that Jerez was refusing to take part in the phone conference and would not leave his cell. Although a captain at the facility made a second attempt to convince Jerez to participate, he again refused to appear. The Court has not heard anything from Jerez since then.
Before the January 9 conference, the Defendants requested by letter dated December 29, 2014, that Jerez's case be dismissed for failure to prosecute pursuant to Rules 37(b)(2) and 41(b) of the Federal Rules of Civil Procedure. (Id.).
A. Legal Standard