United States District Court, N.D. New York
J. MCAVOY, SR. U.S.D.J.
the Court is Defendants' motion to dismiss for failure to
prosecute and failure to follow a discovery order.
See dkt. # 73. The parties have briefed the issues
and the Court has determined to decide the motion without
case, Plaintiff alleges that Defendants, two Syracuse Police
Officers, used excessive force when arresting him on May 11,
2013. See Complaint, dkt. # 1. Plaintiff contends
that the officers failed to identify themselves when they
arrived at the scene of his arrest, and he fled. Id.
Plaintiff fell down, and two officers jumped on him and
tackled him to the ground. Id. They forced his hands
behind his back, “nearly dislocating his
shoulders.” Id. These officers then began to
knee Plaintiff in his side. Id. After about a dozen
such strikes, they handcuffed him. Id. While one
officer called in the arrest to supervisors, the other
officer punched Plaintiff in the head and face while kneeling
on his back. Id. Plaintiff alleges that the officers
handcuffed him so tightly that he suffered permanent nerve
damage in his wrists. Id. He also allegedly suffered
pulled muscles, sprained ribs, a chest wall contusion, a
swollen spleen, and other injuries. Id. Plaintiff
further contended that the officers who took him to jail
ignored serious medical needs that he faced, causing him
additional and serious pain. Id.
filed his complaint on December 24, 2014, along with a motion
for leave to proceed in forma pauperis. See
dkt. # 2. After Plaintiff filed the proper paperwork, on
April 22, 2015 Magistrate Judge David E. Peebles gave the
case a preliminary reading and issued a Report-Recommendation
that proposed that the Cour dismiss the claims against all
Defendant except the moving Defendants here. See
dkt. # 9. The Court adopted the Report-Recommendation on May
19, 2015. See dkt. # 10. Defendants filed a motion
to dismiss after Plaintiff served the Complaint. See
dkt. # 22. The Court granted the motion in part and denied it
in part on June 9, 2016. See dkt. # 33. T he Court
dismissed Plaintiff's medical indifference claim, but
permitted Plaintiff's excessive-force claim against the
moving Defendants to continue. Id. Defendants
answered the Complaint on July 25, 2016.
the parties engaged in discovery and the Magistrate Judge
addressed various discovery disputes, the Defendants on
August 7, 2017 filed the instant motion to dismiss for
failure to prosecute and failure to obey discovery orders
See dkt. # 73. When Plaintiff did not reply to the
motion by the deadline set by the Court, Defendants filed a
supplemental motion seeking dismissal. See dkt. #
77. Plaintiff responded to the motion, though after the
August 25, 2017 deadline set by the Court. See dkt.
# 80. Defendants responded to this filing by filing an
affidavit with the Court that pointed out the lateness of the
filing and again sought dismissal for failure to obey a Court
seek dismissal pursuant to Federal Rules of Civil Procedure
41(b) and 37(b)(2). Rule 41(b) provides that “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” Fed.R.Civ.P. 41(b).
“Involuntary dismissal for a plaintiff's failure to
prosecute is a matter committed to the discretion of the
trial court[.]” Colon v. Mack, 56 F.3d 5, 7
(2d Cir. 1995). Still, “the district court's
discretion is circumscribed.” Coronado v.
LeFevre, 173 F.3d 843, 843 (2d Cir. 1999). “Rule
41(b) dismissals are a ‘harsh remedy' that are
‘appropriate only in extreme circumstances.'”
Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998)
(quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996)). Courts should be especially hesitant to dismiss a
case brought by a pro se plaintiff based on
Id. (quoting Lucas, 84 F.3d at 535). A
court considering a motion under Rule 41(b) applies five
(1) the duration of the plaintiff's failure to comply
with the court order; (2) whether the plaintiff was on notice
that failure to comply would result in dismissal; (3) whether
the defendants are likely to be prejudiced by further delay
in the proceedings; (4) a balancing of the court's
interest in managing its docket with the plaintiff's
interest in receiving a fair chance to be heard; and (5)
whether the judge has adequately considered a sanction less
drastic than dismissal.
Id. at 112-113. “[N]o factor is dispositive,
” and the court “is not required to discuss the
factors on the record, ” though a court deciding to
dismiss a case stands a better chance of avoiding reversal by
providing “‘the appellate court . . . the benefit
of the district court's reasoning.'”
Id. at 113 (quoting Lucas, 84 F.3d at 535).
Rule of Civil Procedure 37(b)(2) permits a court to impose
sanctions, including dismissal of the action, when a party
“fails to obey an order to provide or permit
discovery[.]” Fed.R.Civ.P. 37(b)(2)(A).
“‘[A]ll litigants, including pro ses,
have an obligation to comply with court orders.'”
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302
(2d Cir. 2009) (quoting Minotti v. Lensink, 895 F.2d
100, 103 (2d Cir. 1990)). “Pro se litigants,
though generally entitled to ‘special solicitude'
before district courts, are not immune to dismissal as a
sanction for noncompliance with discovery orders.”
Id. (quoting Trestman v. Federal Bureau of
Prisons, 470 F.3d 471, 475 (2d Cir. 2006)). Such
dismissals require that “‘a warning has been
given that non-compliance can result in
dismissal.'” Id. (quoting Valentine v.
Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994)).
Because of the harsh nature of dismissal as a sanction, that
“‘remedy [is] to be used only in extreme
situations, and then only when a court finds
‘wiffulness, bad faith, or any fault' by the
non-compliant litigant.” Id. (quoting
Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759,
764 (2d Cir. 1990)). Courts use four factors in making this
“(1) the willfulness of the non-compliant party or the
reason for noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of the period of noncompliance;
and (4) whether the non-compliant party has been warned of
the consequences of . . . non-compliance.”
Id. (quoting Nieves v. City of New York,
208 F.R.D. 531, 535 (S.D.N.Y. 2002)).