United States District Court, N.D. New York
SMITH, Plaintiff pro se
E. VALDER, Asst. Attorney General for Defendants
Andrew T. Baxter U.S. Magistrate Judge.
motion to dismiss for lack of prosecution and/or for
sanctions pursuant to Fed.R.Civ.P. 37(d) & 41(b) has been
referred back to me for Report and Recommendation by the
Honorable Brenda K. Sannes, United States District Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y.
72.3(c). (Dkt. No. 50). As directed, this court has
considered whether lesser sanctions would an effective remedy
to plaintiff's repeated non-compliance with his discovery
obligations and related court orders. This non-compliance
includes plaintiff's failure to participate in a December
21, 2017 telephone conference to address the issue. For the
following reasons, this court concludes that alternative
sanctions, such as monetary penalties, would be ineffective.
Therefore, this court recommends dismissal of the complaint
filed this action on April 27, 2015, while incarcerated.
(Dkt. No. 1). On July 27, 2015, Judge Sannes granted
plaintiff's motion for in forma pauperis
(“IFP”) status, and conducted an initial
screening of the complaint. (Dkt. No. 5). As a result, Judge
Sannes allowed plaintiff's First Amendment retaliation
and Fourteenth Amendment due process claims to proceed, and
dismissed the remainder of plaintiff's claims.
(Id.) On November 6, 2015, defendants moved to
dismiss plaintiff's due process claims pursuant to
Fed.R.Civ.P. 12(b)(6), and for summary judgment pursuant to
Fed.R.Civ.P. 56 as to plaintiff's retaliation claim.
(Dkt. No. 12). After being granted several extensions,
plaintiff filed a response on January 26, 2016. (Dkt. No.
23). On April 4, 2016, I issued a Report-Recommendation that
the district court grant dismissal of plaintiff's
retaliation claims, but deny the motion to dismiss the due
process claims against defendants Rufa, Prack, and
Hillenbrand. (Dkt. No. 27). On July 12, 2016, Judge Sannes
adopted this Report-Recommendation in its entirety. (Dkt. No.
that motion was pending, plaintiff notified the court that he
had been released from prison, and provided his new address.
(Dkt. No. 28). On July 26, 2016, the remaining defendants
filed their answer. (Dkt. No. 33). On the same day, this
court issued a Mandatory Pretrial Discovery and Scheduling
Order (“MPSO”). (Dkt. No. 34). Pursuant to the
MPSO, amended pleadings were due by November 27, 2016,
joinder of parties was to be completed by November 27, 2016,
the discovery deadline was January 27, 2017, and dispositive
motions were to be filed by March 27, 2017. (Id.)
The MPSO also provided that the “defendant(s) are
granted leave to take the deposition of plaintiff(s) . . .
with notice of the date of the deposition in the form
provided in Rule 30(b)(1) and such notice shall be deemed
sufficient if the notice is mailed to plaintiff(s) at least
fifteen (15) days prior to the scheduled date for the
deposition.” (Dkt. No. 34 at 4). The order further
warned plaintiff that his failure to “attend, be sworn,
and answer appropriate questions may result in sanctions,
including dismissal of the action pursuant to Fed.R.Civ.P.
37.” (Id. at 5). However, “[o]bjections
made in good faith in accordance with governing rules are not
prohibited.” (Id.) The MPSO contained other
important information about the discovery process and
provided for mandatory disclosures by both sides to assist
the parties in the conduct of discovery. (Id. at
September 20, 2016, defendants filed a notice indicating that
plaintiff had been served with defendants' Rule 26
Disclosure. (Dkt. No. 35). On January 26, 2017, defendants
filed a status report, and requested a thirty day extension
of the discovery deadline for the limited purpose of taking
plaintiff's deposition. (Dkt. No. 36). Defendants
reported that plaintiff, who resided in New York City, had
appeared approximately two hours late for his scheduled
deposition in Albany, New York on December 7, 2016. (Dkt. No.
36, at 1). By the time that plaintiff had arrived, no court
reporter was available. (Id.) Defendants also
reported that plaintiff failed to appear for his rescheduled
deposition on January 18, 2017. (Dkt. No. 36, at 2).
response to plaintiff's request, this court extended the
deadline for completion of discovery to February 28, 2017,
for the limited purpose of taking plaintiff's deposition.
(Dkt. No. 37). In the same text order, I warned plaintiff
“that his failure to comply with his discovery
obligations, including appearing for and participating in his
deposition, and/or the failure to comply with the orders of
this court may result in the imposition of sanctions,
including possible dismissal of his action.”
(Id.) A copy of this text order was served on
plaintiff via regular mail at his last known address.
February 27, 2017, defendants filed a letter request for
sanctions and/or dismissal of the action due to
plaintiff's failure to abide by this court's
discovery orders. (Dkt. No. 38). Defendants advised the court
that plaintiff had still not appeared for his deposition, and
communications from plaintiff and his parole officer had been
sporadic. The only direct communication from plaintiff was a
voicemail on February 23, 2017, stating that he was
“trying to get a travel pass now.” (Dkt. No. 38,
at 2). Plaintiff did not leave a telephone number where he
could be reached. (Id.)
court scheduled a telephone conference for March 17, 2017 to
address defendants' letter. In my text order, I warned
plaintiff “that his failure to participate in the
conference call, to comply with his discovery obligations
and/or the orders of this court may result in the imposition
of sanctions, including possible dismissal of his
action.” (Dkt. No. 39). A copy of this text order,
along with the call-in information for the telephone
conference, was served on plaintiff via regular mail.
this warning, plaintiff did not call in for the March 17,
2017 conference call, or notify the court that he was
unavailable. (Dkt. No. 39). This court granted defendants
leave to file a formal motion for sanctions or dismissal on
or before May 5, 2017. (Dkt. No. 40). On April 21, 2017,
plaintiff filed a letter with the court inquiring about the
status of his case. (Dkt. No. 41). He did not provide any
explanation for his failure to participate in the March 17,
2017 telephone conference. (Id.) In response to
plaintiff's letter, the clerk's office provided him
an updated copy of the docket sheet for this case.
5, 2017, defendants filed a motion to dismiss this action for
lack of prosecution. (Dkt. No. 43). Plaintiff filed a
response on June 26, 2017, a month after his deadline to
respond had expired. (Dkt. No. 44). Plaintiff, who
characterized himself as a “ward of the state”
due to his parole status, claimed that his parole officer had
failed to inform him of his “legal mail” in
connection with this proceeding. (Dkt. No. 44-1, at 3-4).
Plaintiff also described difficulties in obtaining a travel
pass from his parole officer, which had prevented him from
traveling from New York City to Albany for the deposition.
(Id. at 4). Finally, plaintiff claimed that his
limited income from public assistance made it difficult to
travel. (Id. at 4-5).
light of plaintiff's response, this court scheduled a
telephone conference for August 25, 2017 to address
defendants' motions and plaintiff's alleged
difficulties in appearing for his deposition. (Text Notice
dated August 7, 2017). A copy of this notice, along with a
direction to provide the court with a current telephone
number, was served on plaintiff via regular mail.
(Id.). Plaintiff never ...