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Ruffin v. Mack

United States District Court, N.D. New York

April 9, 2018

LEE A. RUFFIN, Plaintiff,
v.
MARY ANN MACK, et al., Defendants.

          LEE A. RUFFIN PLAINTIFF PRO SE

          HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL FOR THE STATE OF NEW YORK THE CAPITOL ALBANY, NEW YORK 12224 ATTORNEY FOR DEFENDANTS

          KATIE E. VALDER, ESQ. ASSISTANT ATTORNEY GENERAL

          REPORT-RECOMMENDATION AND ORDER [1]

          CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

         Plaintiff pro se Lee A. Ruffin (“plaintiff”), a former inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Senior Librarian Mary Anne Mack, Lieutenant (“Lieut.”) Michael McNally, and Corrections Officer (“C.O.”) Anthony Harper - who, at all relevant times, were employed at Riverview Correctional Facility (“Riverview”) - violated his constitutional rights under the First Amendment. See Dkt. No. 1 (“Compl.”); Dkt. No. 5. Presently pending before the Court is defendants' Motion to Dismiss pursuant to Rules 37 and 41(b) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Dkt. No. 80. For the following reasons, it is recommended that defendants' motion be granted.

         I. Background

         Plaintiff commenced this action on May 3, 2017. See Compl. On June 5, 2017, plaintiff notified the Court of his change of address. Dkt. No. 7. On July 14, 2017, the undersigned issued the Mandatory Pretrial Discovery and Scheduling Order, which set the discovery deadline for January 16, 2018. Dkt. No. 15; Dkt. No. 20-4 (“Valder Affirm.”) ¶ 3. A copy of this Order was mailed to plaintiff's updated address. See Text Entry dated June 6, 2017. On September 7, 2017, defendants served plaintiff with a Notice of Deposition for December 14, 2017. Valder Affirm. ¶ 5. On December 14, 2017, plaintiff failed to appear for his scheduled deposition. Id. ¶ 6. Plaintiff did not contact defendants or otherwise indicate that he was unable to attend the scheduled deposition. Id. ¶ 7. Defendants incurred costs of $77.80 for the December 14, 2017 deposition transcript. Id. ¶ 8.

         II. Discussion[2]

Defendants argue that “plaintiff's refusal to comply with the Court's various discovery orders is sanctionable by dismissal with prejudice.” Dkt. No. 20-2 (“Def. Mem. of Law”) at 4. Alternatively, defendants that if dismissal is too extreme, the undersigned “should require plaintiff to reimburse the costs incurred by [his] failure to appear” pursuant to Rule 37(b)(2)(A). Id. at 7.

         A. Fed.R.Civ.P. 41(b)

         Fed. R. Civ. P. 41(b) provides that a court may dismiss an action “[i]f the plaintiff fails to prosecute or comply with [the Federal Rules of Civil Procedure] or a court order . . .” Fed.R.Civ.P. 41(b); see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); Baptiste v. Sommers, 768 F.3d 212, 216 (2d. Cir. 2014); see also N.D.N.Y. L.R. 41.2(b). Since a Rules 41(b) dismissal “is a harsh remedy” . . . [it] is appropriate only in extreme situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d. Cir. 1996) (citation omitted). Further, where the plaintiff is proceeding pro se, “courts should be especially hesitant to dismiss for procedural deficiencies . . . .” Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (quoting Lucas, 84 F.3d at 535); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (“There are many cases in which we have said that a pro se litigant is entitled to ‘special solicitude'; that a pro se litigant's submissions must be construed ‘liberally'; and that such submissions must be read to raise the strongest arguments that they ‘suggest.'”). A determination of whether to dismiss an action pursuant to Rule 41(b) involves consideration of:

(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 with result in dismissal,
(3) whether the defendants are likely to be prejudiced by further delay in ...

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