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Smith v. Rufa

United States District Court, N.D. New York

January 3, 2018

JASON SMITH, Plaintiff,
v.
A. RUFA, et al., Defendants.

          JASON SMITH, Plaintiff pro se

          KATIE E. VALDER, Asst. Attorney General for Defendants

          REPORT-RECOMMENDATION

          Hon. Andrew T. Baxter U.S. Magistrate Judge.

         Defendants' 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 with prejudice.

         I. Procedural History

         Plaintiff 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. 32).

         While 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 1-6).

         On 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).

         In 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. (Id.)

         On 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.)

         This 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. (Id.)

         Despite 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.

         On May 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).

         In 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 ...


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