United States District Court, N.D. New York
MARCUS ELDERKIN, Plaintiff pro se.
JAMES A. RESILA, ESQ., for Defendants.
ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable David N. Hurd United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In this civil rights complaint, plaintiff alleges that on July 9, 2014, when he was in custody at the Rennselaer County Jail, defendants used excessive force against him when he refused to submit to a strip search and then denied him proper medical care. (Complaint "Compl.") (Dkt. No. 1). Plaintiff seeks unspecified "financial compensation." (Compl. ¶ 8). Presently before the court is defendants' motion to dismiss for lack of prosecution and for discovery sanctions pursuant to Fed.R.Civ.P. 37, 41(b) and Local Rule 41.2. (Dkt. No. 18). Plaintiff has not responded to the motion. For the following reasons, this court agrees with the defendants and will recommend dismissal of the complaint.
I. Procedural Background
Plaintiff filed this action on July 25, 2014. (Dkt. No. 1). On August 20, 2014, the court granted in forma pauperis ("IFP") status and ordered service of the complaint on defendants. (Dkt. No. 4). Defendants filed an answer on September 24, 2014. (Dkt. No. 11). This court issued its Mandatory Pretrial Discovery and Scheduling Order ("MPO") on September 24, 2014. (Dkt. No. 13). The MPO set the deadlines for, inter alia, amendment of pleadings, discovery, and dispositive motions. ( Id. at 5-6) The MPO is very clear regarding the type of discovery that is required to be produced by both parties based on the claims in the action. ( Id. at 7-8; Attachment A). The MPO also contains an order, granting leave to take plaintiff's deposition. ( Id. at 4-5).
On October 14, 2014, plaintiff filed a change of address. (Dkt. No. 14). On December 19, 2014, defense counsel filed a letter-motion, requesting a telephone conference to discuss plaintiff's failure to provide discovery and his failure appear for his deposition. (Dkt. No. 15). In defense counsel's letter-motion, he stated that he had received plaintiff's October 14th change of address. ( Id. ) Counsel stated that, pursuant to the MPO, he produced defendants' mandatory disclosures on October 16, 2004. (Dkt. No. 15-1) On October 21, 2014, defense counsel served a Notice to take Deposition on plaintiff at his updated address. (Dkt. No. 15-2). The deposition was scheduled for December 12, 2014. ( Id. ) Counsel requested that, in the interim, plaintiff forward the court-ordered discovery as stated in the MPO to defense counsel. ( Id. at p.1).
Plaintiff never produced the requested/required discovery, and on December 9, 2014, defense counsel wrote a letter to plaintiff, requesting that he contact counsel's office on Thursday December 11, 2014 to confirm his attendance at the deposition. ( Id. Def.s' Ex. 3). The letter stated that "[s]hould you fail to appear for the deposition, we will assume you are no longer interested in pursing [sic] this action." ( Id. ) Plaintiff never responded to defense counsel's letter, and failed to appear for the December 12, 2014 deposition. (Dkt. No. 15 at 2). A copy of defense counsel's December 19th lettermotion was served on plaintiff at his last-known address. ( Id. )
On December 22, 2014, this court issued a TEXT ORDER, based upon defense counsel's letter-motion. (Dkt. No. 16). Plaintiff was ordered to notify the court, in writing, by January 16, 2015, of his current contact information, including a working telephone number, so that the court and defense counsel could communicate with him. ( Id. ) Plaintiff was warned that his failure to provide the information "may result in the imposition of sanctions, including the possible dismissal of plaintiff's action." ( Id. ) Plaintiff failed to respond to the court's order. On January 30, 2015, the court issued another order, stating that plaintiff had failed to provide his current contact information pursuant to the court's December 22, 2014 Order. (Dkt. No. 17). The court granted defense counsel leave to file a motion for dismissal. ( Id. ) Defendants filed their motion on January 30, 2015. A response to the motion was due on by February 17, 2015. (TEXT NOTICE dated Jan. 30, 2015). The notice was served on plaintiff by regular mail. ( Id. ) Plaintiff has failed to respond.
II. Motion to Dismiss
A. Legal Standards
1. Failure to ...