United States District Court, W.D. New York
REPORT & RECOMMENDATION
W. Payson United States Magistrate Judge
Young (“Young”), proceeding pro se,
initiated this lawsuit against various defendants, all of
whom have since been dismissed from the action with the
exception of defendant Edith Pickens (“Pickens”).
(Docket ## 1, 51). The only claim remaining against her is a
claim for deliberate indifference in violation of Young's
constitutional rights. (Docket # 33).
Order of the Hon. Charles J. Siragusa, United States District
Judge, dated July 24, 2012, all pretrial matters in the
above-captioned case were referred to this Court pursuant to
28 U.S.C. §§ 636(b)(1)(A)-(B), and all dispositive
motions were referred to this Court for report and
recommendation pursuant to 28 U.S.C. §§
636(b)(1)(B)-(C). (Docket # 17). Currently pending before the
Court is Pickens's motion for sanctions under Rules
37(b)(2)(A) and (d) of the Federal Rules of Civil Procedure,
including dismissal of his claims with prejudice, as a result
of Young's failure to comply with his discovery
obligations and this Court's orders. (Docket # 68).
Despite the issuance of a motion scheduling order setting a
deadline for Young to respond, Young has not filed any
opposition papers or otherwise addressed the motion.
(See Docket ## 69, 70).
action was commenced on May 7, 2012; after several motions to
dismiss were litigated, Pickens filed her answer on April 17,
2015. (Docket ## 1, 52). During the intervening period,
Young's prosecution of the case was characterized by
repeated inattention to and disregard of his obligations,
resulting in the issuance by this Court of an order to show
cause why the case should not be dismissed for failure to
prosecute. (See Docket # 24). The Court ultimately
determined not to dismiss Young's case, but warned Young
that “any future incidents of prosecutive delinquency
or non-compliance with court-ordered deadlines or other
obligations may result in sanctions, including dismissal of
any or all of his claims.” (Docket # 30).
after Pickens filed her answer, this Court scheduled a Rule
16 conference, which Young failed to attend. (Docket ## 53,
54). The Court rescheduled the conference for October 14,
2015. (Docket # 53). Young attended the rescheduled
conference, and this Court issued a scheduling order setting
deadlines for the progress of the litigation. (Docket ## 55,
56). During the conference, the Court admonished Young
concerning the need to respond promptly to outstanding
discovery requests propounded by Pickens. (Docket # 67 at 2).
In its written scheduling order, the Court warned the parties
that any failure to obey the scheduling order could result in
sanctions, including dismissal of the action. (Docket # 55).
February 29, 2016, Pickens filed a motion to compel. (Docket
# 59). Despite the issuance of a motion scheduling order
setting a deadline for Young to respond, Young neither filed
any opposition papers nor otherwise addressed the motion.
(See Docket ## 60, 61).
3, 2016, Pickens served and filed a notice to depose Young on
June 27, 2016. (Docket # 64). Young sent a letter to this
Court dated June 24, 2016, the last business day before the
scheduled deposition, requesting an adjournment of the
deposition due to financial and familial obligations. Counsel
for Pickens responded by letter indicating that she did not
oppose the request for an adjournment, but requesting that
the deposition be adjourned on the condition that Young
provide available dates for his deposition. (Docket ## 65,
67). On June 27, 2015, this Court adjourned the deadline to
conduct Young's deposition until August 31, 2016, and
directed Young to provide available dates for his deposition
on or before July 8, 2016. (Docket # 66). The Court advised
Young that his “[f]ailure to do so may result in
the imposition of sanctions, including but not limited to
financial sanctions or dismissal of the action.”
30, 2016, this Court issued a decision and order granting in
part Pickens's motion to compel. (Docket # 67). In the
decision, the Court noted that Pickens's discovery
requests had been outstanding for nearly one year and that it
had admonished Young concerning the need to respond promptly
to those outstanding requests during the October 14, 2015
status conference. (Id. at 2). In its decision, the
Court directed Young to respond to the outstanding requests
on or before July 20, 2016, and again warned Young that an
“unexcused failure to respond by the court-ordered
deadline of July 20, 2016 may result in the
imposition of sanctions, including, but not limited, to
dismissal of his lawsuit.” (Id. at 3).
to Pickens, despite this Court's orders requiring Young
to provide a list of available deposition dates by July 8,
2016, and to provide discovery responses by July 20, 2016,
Young failed to do either. (Docket # 68-1 at ¶¶
15-16). On July 29, 2016, Pickens served a new deposition
notice upon Young, noticing his deposition for August 26,
2016. (Docket # 71 at ¶ 3 and Exhibit (“Ex.) A).
Young evidently did not appear for his scheduled deposition
or contact defense counsel to request an adjournment.
(Id. at ¶ 4 and Ex. B). On July 22, 2016,
Pickens filed the pending motion for sanctions, arguing that
Young's refusal to participate in discovery in violation
of this Court's orders warrants dismissal of the action
pursuant to Rule 37 of the Federal Rules of Civil Procedure.
(Docket ## 68, 71). As noted above, Young has not responded
to this pending motion.
37(b) of the Federal Rules of Civil Procedure provides, in
relevant part, that “[i]f a party . . . fails to obey
an order to provide or permit discovery, . . . the court . .
. may issue further just orders . . . [including orders] . .
. dismissing the action or proceeding in whole or in
part.” Fed.R.Civ.P. 37(b)(2)(A)(v). Similarly, a court
may dismiss an action if a party fails to attend a deposition
of that party. See Fed. R. Civ. P. 37(d).
litigants, including pro ses, have an obligation to
comply with court orders, ” and although pro
se litigants are generally entitled to “special
solicitude, ” they “are not immune to dismissal
as a sanction for noncompliance with discovery orders.”
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302
(2d Cir. 2009) (internal quotations and brackets omitted).
Rather, “[t]he severe sanction of dismissal with
prejudice may be imposed even against a plaintiff who is
proceeding pro se, so long as a warning has been
given that noncompliance can result in dismissal.”
Valentine v. Museum of Modern Art, 29 F.3d 47, 50
(2d Cir. 1994). Nevertheless, “dismissal with prejudice
is a harsh remedy to be used only in extreme situations, and
then only when a court finds ‘willfulness, bad faith,