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Burroughs v. Mitchell

United States District Court, N.D. New York

September 3, 2019

LORCEN BURROUGHS, Plaintiff,
v.
JOYCE MITCHELL, et al., Defendant.

          LORCEN BURROUGHS, Plaintiff, pro se

          KONSTANDINOS D. LERIS, Asst. Attorney General for Defendant

          ORDER AND REPORT-RECOMMENDATION

          ANDREW T. BAXTER, U.S. MAGISTRATE JUDGE

         This 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. 72.3(c).

         Presently 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.

         I. Facts and Procedural History

         Plaintiff 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).

         The 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.[1] (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).

         II. Discovery Sanctions

         A. Legal Standards

         Rule 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).

         B. Application

         Defendants 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).

         Defendants 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 ...


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