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Galberth v. Bielwiez

United States District Court, N.D. New York

September 20, 2019

J. BIELWIEZ, et al., Defendants.

          GREGORY GALBERTH Plaintiff, pro se

          HON. LETITIA JAMES New York State Attorney General Attorney for Defendants

          KEITH J. STARLIN, ESQ. Asst. Attorney General



         This 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.[1]) 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.


         Plaintiff 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.)

         In 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.)

         Defendants 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, 95.)

         On July 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.


         On 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.)

         Defendants' 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.)

         On 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.)

         On May 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.

         On May 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 ...

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