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Young v. Pickens

United States District Court, W.D. New York

March 2, 2017

ROGELIO YOUNG, Plaintiff,
v.
EDITH PICKENS, Defendant.

          REPORT & RECOMMENDATION

          Marian W. Payson United States Magistrate Judge

         PRELIMINARY STATEMENT

         Rogelio 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).

         By 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).

         BACKGROUND

         This 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).

         Shortly 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).

         On 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).

         On June 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.” (Id.).

         On June 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).

         According 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.

         DISCUSSION

         Rule 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).

         “All 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, ...


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