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Irvine v. Cazzolli

United States District Court, N.D. New York

November 21, 2017

JASON IRVINE, Plaintiff,
ALEXANDER J. CAZZOLLI, et al., Defendants.


          THOMAS J. MCAVOY, SR. U.S.D.J.

         Before 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 oral argument.

         I. BACKGROUND

         In this 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.

         Plaintiff 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.

         After 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 order.


         Defendants 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 “‘procedural deficiencies.'” Id. (quoting Lucas, 84 F.3d at 535). A court considering a motion under Rule 41(b) applies five factors:

(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).

         Federal 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 determination:

“(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)).

         III. ...

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