United States District Court, W.D. New York
RANDY L. DAVIS, Plaintiff,
ANTHONY J. ANNUCCI, et al., Defendants.
DECISION & ORDER
JONATHAN W. FELDMAN United States Magistrate Judge.
se plaintiff Randy Davis ("plaintiff") brings
the instant action under 42 O.S.C. § 1983, alleging that
defendants Anthony Annucci, Carl Koenigsmann, Michael
Cornwall, Jeffery Lieberman, Steven Wenderlinch, Dr.'
Wesley Canfield, and Dr. Ben Oakes ("Dr. Oakes")
(collectively "defendants")/ all employees of the
Department of Correctional Services, violated his civil
rights by not providing prompt medical care during his
incarceration. See Complaint (Docket # 1). Pending
before the Court is plaintiff's motion for "defu. it
judgment" [sic] . Docket # 30.
and Procedural History
commenced the instant action on April 2, 2014, alleging he
began experiencing numbness and pain in his left knee in July
2010. See Docket # 1. Plaintiff alleges he was seen
by defendant Michael Cornwall who ordered an x-ray. See
id. Between the initial July 2010 sick call and March
2014, plaintiff alleges he was transferred to multiple
correctional facilities where he was treated by various
correctional facility employees for his knee pain.
See Docket # 1. He was given crutches, x-rays were
taken, and plaintiff received pain medication. See
id. Despite this treatment, plaintiff alleges that the
pain and numbness in his knee worsened; See id.
alleges that on January 23, 2014, he saw Dr. Oakes for
treatment in relation to his knee pain and Dr. Oakes ordered
an electromyograiti ("EMG") . See id.
Plaintiff alleges he saw Dr. Oakes again on March 6, 2014, at
which point the EMG had not yet been completed. Id.
Plaintiff claims the EMG was completed at a local hospital in
Elmira, New York by a specialist oh March 13, 2014. See
id. Plaintiff alleges a staff member at Southport
Correctional Facility informed him on March 24, 2014 that he
had permanent nerve damage. See Docket # 1.
commenced this action on April 2, 2014. Id.
Defendants answered (Docket ## 14, 16), and on September 3,
2015, defendants filed a motion to amend their answer. Docket
# 19. This Court granted the motion to amend on September 13,
2016, Docket # 23, and subsequently issued an Amended
Scheduling Order requiring, inter alia, that the
amended answer be filed by February 20, 2017, and medical
records be provided to plaintiff by February 27, 2017. Docket
# 26. Defendants filed the amended answer on February 21,
2017. Docket # 27. The pending motion for "defult
judgment" [sic] followed on March 10, 2017. Docket # 30.
motion, plaintiff argues that the Court should sanction
defendants for their failure to comply with the Amended
Scheduling Order by dismissing the defendants' amended
answer and awarding the plaintiff relief. The Court construes
this as a motion for sanctions pursuant to Federal Rule of
Civil Procedure 16, rather than a motion for default judgment
under Rule 55, requesting dismissal of the action in favor of
plaintiff for failure to adhere to this Court's
scheduling order,  For the reasons that follow,
plaintiff's motion is denied.
to Federal Rule of Civil Procedure 16(f)(1), "on motion
or on its own, the court may issue any just orders, including
those authorized by Rule 37(b) (2) (A) (ii-vii), if a party
or its attorney . . . fails to obey a scheduling or other
pretrial order." Although this Court does not construe
the current motion as a motion for default judgment, possible
sanctions for discovery violations include rendering a
default judgment against a disobedient party or dismissing an
action in whole or in part. Fed.R.Civ.P. 37(b) (2) (A) . The
Second Circuit has determined that dismissal is an extreme
sanction, only to be deployed in rare situations because the
courts have a strong preference for deciding cases on their
merits. See Cine Forty-Second St. Theatre Corp. v. Allied
Artists Pictures Corp., 602 F.2d 1062, 1063-64 (2d Cir.
of sanctions is within the sound discretion of the district
court. See National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 642 (1976) .
However, the imposition of sanctions is limited by
considerations of due process. See Societe Internationale
Pour Participations Industrielles et Cbmmerciales,
S.A. v. Rogers, 357 U.S. 197, 209 (1958) . In
determining the ' appropriate sanction, the Supreme Court
and Second Circuit consider:
(1) the history of the failure to comply with court orders;
(2) whether the party violating the order was given ample
time to respond; (3} the effectiveness of alternative
sanctions; (4) whether the noricomplying party was warned of
and given the opportunity to argue against the impending
sanction; (5) the prejudice to the adversary caused by the
failure to comply; (6) whether the documents at issue would
normally be readily obtainable; and (7) the extent of the
party's personal responsibility*
Burke v. ITT Automotive, Inc., 139 F.R..D. 24, 33
(W.D.N.Y. 1991) . Generally, courts require that to impose
the most severe sanctions, "there must be some element
of culpability present." Burke, 13 9 F.R.D. at
32. The entry of default judgment as a discovery sanction, is
limited to cases that involve "willfulness, bad faith,
or any fault" of the disobedient party. Sony BMG
Music Entertainment v. Thurmond, No.
CV-06-1230, 2009 WL 4110292, at *2 (E.D.N.Y. Nov. 24, 2009)
(quoting Altschuler v. Samsonite Corp., 109 F.R.D.
353, 356 (E.D.N.Y. 1986)).
the Court finds that the defendants' actions do not
warrant sanctions in the form of a default judgment as
requested by pro se plaintiff. Plaintiff alleges
that defendants' amended answer did not comply with the
deadlines provided in the Amended Scheduling Order. Docket
#30. Although the Court recognizes the filing of the amended
answer was a day late, plaintiff fails to establish the
necessary culpability • of the defendants' late
filing. See Neufeld v. Neufeld, 172 F.R.D 115, 118
(S.D.N.Y. 1997)(providing "bad faith and willful
intransigence on the part of counsel were specifically
noted" in cases in which the Second Circuit upheld
dismissals}; Hollingsworth v. City of ...