United States District Court, N.D. New York
LEE A. RUFFIN, Plaintiff,
MARY ANN MACK, et al., Defendants.
RUFFIN PLAINTIFF PRO SE
ERIC T. SCHNEIDERMAN ATTORNEY GENERAL FOR THE STATE OF NEW
YORK THE CAPITOL ALBANY, NEW YORK 12224 ATTORNEY FOR
E. VALDER, ESQ. ASSISTANT ATTORNEY GENERAL
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
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.
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.
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.
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
(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 ...