United States District Court, N.D. New York
BURROUGHS, Plaintiff, pro se
KONSTANDINOS D. LERIS, Asst. Attorney General for Defendant
ORDER AND REPORT-RECOMMENDATION
T. BAXTER, U.S. MAGISTRATE JUDGE
matter has been referred to me for Report and Recommendation
by the Honorable David N. Hurd, United States District Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y.
before this court is the defendants' motion to dismiss
for lack of prosecution pursuant to Fed.R.Civ.P. 37(b). (Dkt.
No. 31). Defendants move to dismiss plaintiff's complaint
based on his failure to appear for his noticed deposition,
his failure to comply with this court's order to
participate in a telephone conference prior to a
court-ordered second deposition, and his failure to provide
Mandatory Disclosures or participate in discovery in general.
(Def.s' Mem. of Law) (Dkt. No. 31-9). In support of their
motion, they have submitted defense counsel's Declaration
with exhibits. (Dkt. Nos. 31-2-31-9, Leris Decl. & Exs.
A-G). Plaintiff has failed to respond to defendants'
motion or to request an extension of time to do so. For the
following reasons, this court agrees with defendants and will
recommend dismissal of the complaint.
Facts and Procedural History
filed this action pursuant to 42 U.S.C. § 1983 while he
was incarcerated at Great Meadow Correctional Facility. (Dkt.
No. 1). On September 6, 2018, United States District Judge
David N. Hurd reviewed the complaint and issued an order.
(Dkt. No. 13). In his September 6, 2018 Order, Judge Hurd
summarized the facts as stated in the plaintiff's lengthy
complaint (Dkt. No. 13 at 6-20), granted plaintiff's
motion to proceed in forma pauperis, dismissed many of
plaintiff's claims, and allowed others to proceed. (Dkt.
No. 13 at 47-49). Essentially, plaintiff alleged that he was
the victim of various constitutional violations following the
escape of inmates David Sweat and Richard Matt from Clinton
Correctional Facility (“Clinton”) in June of
2015. Plaintiff was released from incarceration on December
22, 2018, and filed a proper change-of-address with the court
on December 26, 2018. (Dkt. No. 20).
remaining causes of action in this case are Eighth Amendment
failure-to-protect claims against defendant Ronald Wood and
First Amendment retaliation claims against defendants Wood
and Steven Shattuck. (Dkt. No. 13 at 48). Defendants Wood and
Shattuck filed their answer to the complaint on January 25,
2015. (Dkt. No. 22). On January 25, 2019, the court issued a
Mandatory Pretrial Discovery and Scheduling Order
(“MPTO”), which provided for the mandatory
disclosure of specific discovery materials by both plaintiff
and defendants. (Dkt. No. 24 at 1-2). The MPTO also set forth
additional instructions for discovery as well as an order
granting defendants leave to take plaintiff's deposition
pursuant to Fed.R.Civ.P. 30(a)(2)(B). (Dkt. No. 24 at 2-4).
The MPTO also set deadlines for joinder and amendment,
discovery, and dispositive motions. (Dkt. No. 24 at 5-6).
“Attachment A” of the MPTO describes the
mandatory disclosures required based on particular types of
cases, making the parties' responsibilities very clear.
(Dkt. No. 24 at 7-8). With respect to depositions, the MPTO
specifically states that “[t]he failure of the
plaintiff(s) to attend, be sworn, and answer appropriate
questions may result in sanctions, including dismissal of the
action pursuant to Fed.R.Civ.P. 37. Objections made in good
faith in accordance with governing rules are not
prohibited.” (Dkt. No. 24 at 4).
37(d) of the Federal Rules of Civil Procedure provides that
if an individual fails to appear at his own deposition after
having received proper notice, the court may take various
steps to sanction the disobedient party. Fed.R.Civ.P.
37(d)(1)(A)(I). Section 37(d) cross references Rule
37(b)(2)(A)(v), which also authorizes the court to dismiss an
action for failure to comply with a discovery order. The
imposition of sanctions under Rule 37 is within the
discretion of the district court, and the sanction of
dismissal is a harsh remedy to be used “only in extreme
situations.” Bobal v. Rensselaer Polytechnic
Institute, 916 F.2d 759, 764 (2d Cir. 1990). In order to
impose such a severe sanction, the court must find
willfulness, bad faith, or fault on the individual from whom
discovery is sought. Id. The party in question,
particularly a pro se litigant, must have had prior
notice that violation of the court's order would result
in dismissal with prejudice. Simmons v. Abruzzo, 49
F.3d 83, 88 (2d Cir. 1995).
provided plaintiff with their mandatory disclosures on March
18, 2019 and filed the appropriate notice of compliance with
the court. (Dkt. No. 25, Leris Decl. ¶ 9 & Ex. A)
(Dkt. Nos. 31-1, 31-2). When defendants failed to receive any
mandatory disclosures from plaintiff, defense counsel sent
plaintiff a letter requesting service of the required
disclosures and notifying plaintiff that if he failed to
provide the documents, the defendants could object to any
documents that he sought to offer in support of his case at
trial. (Leris Decl. Ex. B) (Dkt. No. 31-3). When defendants
did not hear from plaintiff in response to the first letter,
on May 15, 2019, counsel sent a second letter. (Leris Decl.
Ex. D) (Dkt. No. 31-5). Defendants also state that, “to
date, ” plaintiff has neither provided documents, nor
has he indicated that responsive documents do not exist.
(Leris Decl..¶ 14, Def.s' Mem. of Law at 2).
also served plaintiff at his Rochester, New York address with
an notice of deposition on March 22, 2019. (Leris Decl..
¶ 16). The notice directed plaintiff to appear at the
Attorney General's Office in Albany, New York on June 12,
2019. (Leris Decl.. ¶ 16 & Ex. E). Defense counsel
states that the notice was not returned undeliverable, but
plaintiff did not appear for his deposition, and he did not
contact defense counsel to reschedule or to discuss why he
was not able to attend. (Leris Decl. ¶ 18 & Ex. F
(Depo. Transcript)). Defense counsel states that, as a result
of plaintiff's failure ...