United States District Court, N.D. New York
GREGORY GALBERTH Plaintiff, pro se
LETITIA JAMES New York State Attorney General Attorney for
J. STARLIN, ESQ. Asst. Attorney General
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE
pro se prisoner civil rights action, commenced
pursuant to 42 U.S.C. § 1983, has been referred for a
report and recommendation by the Honorable Thomas J. McAvoy,
Senior United States District Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3(c). Currently pending
before the Court is Defendants' second motion to dismiss
Plaintiff's amended complaint in its entirety pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure for
failure to prosecute. (Dkt. Nos. 153; 153-8.) Alternatively,
Defendants request an order (1) extending the time to conduct
Plaintiff's deposition and move for summary judgment, (2)
directing Plaintiff to appear at his deposition, and (3)
directing Plaintiff to pay costs incurred as a result of
Plaintiff's failure to appear at three properly noticed
depositions. (Dkt. No. 153-8 at 4.) Plaintiff has not responded
in opposition to Defendants' motion to dismiss despite
the Court sua sponte extending the time in which to
do so. (Dkt. No. 154.) For the reasons that follow, the Court
recommends that Defendants' motion be granted.
BACKGROUND AND DEFENDANTS' FIRST MOTION TO
commenced this action on December 7, 2015. The Court presumes
familiarity with the procedural history leading up to
Defendants' first motion to dismiss for failure to
prosecute. (Dkt. No. 103.) A complete discussion of that
history can be found in the Court's December 20, 2018,
Report-Recommendation on Defendants' first motion to
dismiss. (Dkt. 134.)
short, between January and November 2017, Plaintiff filed a
series of motions to amend the complaint, motions for
reconsideration, an appeal of the Court's Order denying
Plaintiff's letter motion to further supplement the
complaint, and submissions in support of these filings.
(See Dkt. Nos. 56, 59, 60, 61, 66, 67, 72, 77, 79,
80, 83, 85, 87.) All of Plaintiff's motions ultimately
were denied, as was his appeal. (See Dkt. Nos. 62,
76, 84, 88.)
then proceeded with attempting to depose Plaintiff. (Dkt. No.
153-8 at 3.) However, Plaintiff failed to appear at his
deposition on two separate occasions-May 3, 2018, and June
13, 2018-after being properly noticed. (Dkt. Nos. 134 at
8-11; 153-8 at 3.) Moreover, the Court had specifically
ordered Plaintiff to appear at the June 13, 2018, deposition
or risk facing sanctions, including dismissal. (Dkt. Nos. 93,
20, 2018, Defendants filed their first motion to dismiss for
failure to prosecute. (Dkt. No. 103.) Although the Court
found dismissal for failure to prosecute “would be
warranted, ” on December 20, 2018, it was recommended
that Defendants' motion to dismiss be denied without
prejudice in deference to Plaintiff's pro se
status. (Dkt. No. 134 at 16-18.) It was further recommended
that Plaintiff be afforded “one final chance to fulfill
his obligations and appear for his deposition.”
Id. at 17. The Court specifically warned Plaintiff
that “failure to appear at his deposition for
any reason whatsoever may result in this Court sua
sponte recommending dismissal of this action with
prejudice . . . for failure to prosecute,
failure to comply with a discovery order, and failure to
comply with a court order.” Id.
(emphasis in original). On March 26, 2019, the District Court
adopted the Report-Recommendation in full. (Dkt. No. 136.)
Judge McAvoy also granted Defendants' request for an
order directing Plaintiff to appear for a deposition.
Id. at 2.
March 26, 2019, Defendants served a notice of deposition on
Plaintiff scheduling his deposition for April 23, 2019, at
Marcy Correctional Facility (“Marcy”), where he
was then housed, and filed a status report with the Court
regarding the same. (Dkt. Nos. 137; 153-1 at ¶ 10.) By
Text Order issued March 27, 2019, Plaintiff was ordered to
appear for his deposition on April 23, 2019, as noticed by
Defendants, and warned that failure to appear for the
deposition could result in sanctions, including dismissal.
(Dkt. No. 138.) Subsequently, copies of the District
Court's March 26, 2019, Decision and Order and the March
27, 2019, Text Order mailed to Plaintiff at Marcy were
returned to the Court as undeliverable on March 29, 2019, and
April 3, 2019, respectively. (Dkt. Nos. 139, 140.) In each
case the word “Released” was written on the
envelope. (Dkt. Nos. 139, 140.)
notice of deposition scheduling Plaintiff's deposition
for April 23, 2019, was also returned as undeliverable. (Dkt.
No. 153-1 at ¶ 12.) Defense counsel then confirmed with
the New York State Department of Corrections and Community
Supervision (“DOCCS”) that Plaintiff had been
released from custody on or about February 27, 2019.
Id. Plaintiff had not informed either the Court or
defense counsel of his release or new address. (Dkt. Nos.
141; 153-1 at ¶ 12.)
April 10, 2019, the Court held all deadlines in abeyance and
directed Plaintiff to file “updated contact information
and correct address with the Court by 5/3/2019.” (Dkt.
No. 142.) The Court warned Plaintiff that failure to do so
“may be grounds for sanctions including but not limited
to dismissal for failure to follow Court orders and
directives.” Id. The Court mailed a copy of
this Text Order to Plaintiff at Marcy, his last known
address, which was returned as undeliverable on April 17,
2019. (Dkt. No. 143.)
1, 2019, Plaintiff filed a notice of change of address with
the Court. (Dkt. No. 144.) Plaintiff's notice indicated
he was located at Gracie Square Hospital, 420 East 76th
Street, New York, NY 10021 (“Gracie Square
Hospital”). Id. He requested that mail be sent
to him at Sylvia Rivera Law Project, 147 West 24th Street,
New York, NY 10011 (“Sylvia Rivera Law Project”).
Id. The Clerk was directed to update Plaintiff's
address on the docket accordingly. (Dkt. No. 145.) The Court
reset the case deadlines and further directed that a copy of
the docket and the orders previously returned as
undeliverable (Dkt. Nos. 136, 138, 142) be re-mailed to
Plaintiff at the address provided in Dkt. No. 144.
Id. Under these new deadlines, the discovery
deadline for the limited purpose of completing
Plaintiff's deposition was July 15, 2019. Id.
29, 2019, Defendants served Plaintiff with a notice of
deposition scheduling his deposition for June 25, 2019. (Dkt.
Nos. 153-1 at ¶ 16; 153-3.) This notice of deposition
was sent to Plaintiff at both the Gracie Square Hospital and