Opinion
22-CV-62
01-17-2024
JESSIE J. BARNES, Plaintiff, v. STACY DOMINIC, et al., Defendants.
BEFORE THE HON. CHRISTIAN F. HUMMEL
TRANSCRIPT OF PROCEEDINGS
(Chambers.)
THE COURT: On June 15, 2023, defendants filed a motion to dismiss pursuant to Rule 37 and Rule 41 of the Federal Rules of Civil Procedure based upon plaintiff's repeated failure to attend his own deposition, failure to comply with the Court's discovery order, and failure to prosecute this action. Docket No. 68. Despite having been given numerous extensions of time to file a response, plaintiff has failed to file a response to that motion. For the following reasons, the Court recommends that defendants' motion to dismiss be granted and plaintiff's complaint be dismissed without prejudice.
Plaintiff filed a complaint on January 21, 2023, asserting Eighth Amendment excessive force and failure to intervene claims against defendants arising out of incidents which occurred at the Upstate Correctional Facility on June 18, 2019, and August 6, 2019. Docket No. 1. Defendants filed an answer on July 29, 2022. Docket No. 34.
On August 1, 2022, the Court issued a mandatory pretrial discovery and scheduling order. Docket No. 36. That order granted defendants leave to take the plaintiffs's deposition. It provides in relevant part that disagreement with any directive of security staff at the correctional facility at which the deposition is scheduled is not a ground on which plaintiff may refuse to answer appropriate questions. The failure of plaintiff to attend, be sworn, and answer appropriate questions may result in sanctions including dismissal of the action pursuant to Federal Rule of Civil Procedure 37. Docket No. 36 at 5.
On March 6, 2023, defendants mailed a notice of deposition to plaintiff at the Mid-State Correctional Facility. Docket No. 68 at 1. Plaintiff's deposition was scheduled for March 24, 2023. Docket No. 53.
On March 24, 2023, defense counsel drove to the Mid-State Correctional Facility where plaintiff was housed to conduct his deposition. Docket No. 53. Plaintiff was produced for his deposition. Plaintiff refused to participate in the deposition because the correction officers would not remove his shackles. The correction officers would not remove his handcuffs and shackles because of his security status. Defense counsel left the correctional facility without taking plaintiff's deposition.
On March 27, 2023, defendants filed a letter seeking a Court conference to address plaintiff's refusal to be deposed and seeking extensions of the discovery and dispositive motion deadlines. Docket No. 53. A text order was issued scheduling a telephone conference for April 26, 2023. Docket No. 54. A telephone conference was conducted on the record on April 26 of 2023, text minute entry dated April 26, 2023. During that conference, plaintiff's refusal to participate in a deposition was addressed. The Court advised plaintiff that if he objected to being deposed in handcuffs, he should file a grievance at the correctional facility. During that conference, plaintiff became agitated and yelled at the Court before hanging up and terminating the conference.
On May 2, 2023, the Court issued a text order extending the discovery deadline until May 30, 2023, and directing that dispositive motions be filed by July 30 of 2023. Docket No. 58. The text order further advised plaintiff that failure to participate in Court-ordered conferences may result in the imposition of sanctions including the dismissal of this action. Docket No. 58.
Following that conference, plaintiff was sent a second deposition notice scheduling his deposition for May 23, 2023. Docket No. 62. On May 23, 2023, plaintiff filed a letter stating that he would not participate in the deposition until restraints were removed. Docket No. 59. On May 23, 2023, defense counsel drove to the Mid-State Correctional Facility to take plaintiff's deposition. Docket No. 62. Plaintiff was -plaintiff was produced for his deposition, but refused to be deposed unless his restraints were removed.
Defendants requested leave to file a motion to dismiss pursuant to Federal Rules of Civil Procedure 37 and 41. Docket No. 62. By text order dated May 30, 2023, the Court granted defendants leave to file a motion to dismiss pursuant to Federal Rules of Civil Procedure 37 and 41. Docket No. 63. On May 30, 2023, plaintiff filed a letter directed to Chief Judge Sannes objecting to being deposed by in restraints. Docket No. 64.
On June 15, 2023, defendants filed a motion to dismiss for lack of prosecution pursuant to Federal Rules of Civil Procedure 37 and 41. Docket No. 68. Plaintiff's response to that motion was due on July 6, 2023. Docket No. 68.
On June 29, 2023, plaintiff filed a letter motion seeking a 30-day extension of time to respond to this motion. On August 7, 2023, plaintiff filed a letter requesting a further extension of time to respond to this motion. Docket No. 73. On August 11, 2023, this Court issued a text order granting plaintiff an extension of time to respond to this motion until September 5 of 2023. Docket No. 76.
On September 1 of 2023, plaintiff filed a letter motion seeking a free transcript of the April 26, 2023, conference. Docket No. 77. On September 9, 2023, plaintiff filed a letter motion to compel production of a free copy of the April 26, 2023, proceeding and an extension of time to respond to the motion to dismiss for failure to prosecute. Docket No. 78. On September 15, 2023, this Court issued a text order denying plaintiff's motion to compel the court reporter to provide a free transcript of the April 26, 2023, conference. Docket No. 79. The Court extended plaintiff's time to file the response to the motion to dismiss until October 3 of 2023. Docket No. 79.
Plaintiff filed an appeal of the denial of his request for a free copy of the April 26, 2023, proceeding. Docket No. 80. By text order dated October 4, 2023, Chief Judge Brenda Sannes denied that appeal. Docket No. 81.
Plaintiff failed to file a response to the motion to dismiss for failure to prosecute by the October 3, 2023, deadline. On October 25, 2023, plaintiff filed a letter alleging his legal papers had been taken by correction officers. Docket No. 82.
On November 2, 2023, this Court issued an order scheduling an on the record telephone conference for November 17, 2023. Docket No. 84. The purpose of the conference was to address plaintiff's failure to file a response to the motion to dismiss. Docket No. 83. On November 17, 2023, the Court conducted two on the record telephone conferences with plaintiff and counsel for defendants. The first conference was terminated as it was very difficult to hear the plaintiff. During the second conference, the Court advised plaintiff of the consequences of failing to respond to the pending motion for dismiss for failure to prosecute. That conference was terminated after plaintiff began to yell and repeatedly talk over the Court.
On November 17, 2023, the Court issued a text order resetting the motion response deadline for December 11, 2023. Docket No. 85. The Court directed that plaintiff be provided with another copy of the motion to dismiss. Docket No. 68. The text order again advised plaintiff that failure to respond to the motion, failure to abide by Court-ordered deadlines, or failure to participate in court conferences may result in the imposition of sanctions to include dismissal of the complaint. Docket No. 85.
On December 1 of 2023, plaintiff filed a letter regarding the motion to dismiss. Docket No. 86. In that letter, plaintiff acknowledged receipt of the motion to dismiss, but asked the Court to correct an unspecified error and reset the response deadline. Docket No. 86.
On December 6, 2023, the Court issued a text order again extending plaintiff's response deadline until December 18, 2023. Docket No. 87. That text order indicated that as this motion had been pending since June 15, 2023, no further extensions would be granted. Docket No. 87. Plaintiff has never filed a response to that motion.
Federal Rule of Civil Procedure 41 (b) provides a Court may, in its discretion, order dismissal of an action based upon a plaintiff's failure to prosecute or comply with an order of the Court. The Court should exercise that discretion only when necessary to maintain the orderly and expeditious resolution of cases.
A determination of whether to dismiss a case pursuant to Rule 41 (b) is based upon consideration of the following five factors: one, the duration of plaintiff's failure to comply with the Court order; two, whether plaintiff was on notice that his failure to comply would result in dismissal; three, whether the defendants are likely to be prejudiced by further delay in proceeding; four, a balancing of the Court's interest in managing its docket with plaintiff's interest in having a fair chance to be heard; and five, whether the Court has considered a less -- whether the Court has considered a sanction less drastic than dismissal.
As to the duration of plaintiff's failure to comply, this factor weighs in favor of dismissal. The complaint in this matter was filed on January 21, 2022. Docket No. 1. As such, almost two years have elapsed since the filing of the complaint, yet plaintiff has not been deposed and discovery has not been completed. Moreover, defendants mailed plaintiff the first notice of deposition on March 6, 2023. Docket No. 68-1. As such, over ten months have elapsed since the service of the notice of deposition, and plaintiff has still not been deposed.
Second, as to whether plaintiff was on notice, this factor weighs in favor of dismissal. The scheduling order specifically advised plaintiff that a failure to attend sworn and answer appropriate questions may result in sanctions including dismissal of this action. Docket No. 36 at 5. In addition, following the court conference on April 26, 2023, the Court issued a text order which, among other things, advised plaintiff that the failure to participate in Court-ordered conferences may result in the imposition of sanctions including dismissal of this action. Docket No. 58.
On June 15, 2023, defendants filed a motion to dismiss for failure to prosecute pursuant to Federal Rules of Civil Procedure 37 and 41. Docket No. 68. Plaintiff has acknowledged receipt of that motion on multiple occasions. Docket Nos. 73, 75, and 86. That motion clearly advised plaintiff that the defendants were asking the Court to dismiss this action as a sanction for his failure to appear for his deposition and failure to comply with Court orders.
The third factor, whether the defendants are likely to be prejudiced by further delays in this proceeding, weighs in favor of dismissal. This action has already been pending for two years. For over nine months, plaintiff has refused to be deposed. On two occasions, defense counsel drove to the correctional facility where plaintiff was housed to take his deposition, and he refused to participate. In his letter of May 23, 2023, plaintiff advised the Court that he will continue to refuse to be deposed until such time as his restraints are removed for the deposition. Docket No. 59. Given the age of this case and plaintiff's continuing refusal to be deposed, defendants have been prejudiced as they cannot complete discovery or file a dispositive motion in this case.
The fourth factor addresses the balance between the Court's interests in functioning efficiently and the plaintiff's interest in having an opportunity to be heard. Plaintiff's action has been pending for over two years. Docket No. 1.
Defendants served their first notice of deposition on March 6, 2023. Docket No. 68 at 1. In the intervening ten months, plaintiff has refused to be deposed. The Court has conducted conferences in an unsuccessful attempt to get plaintiff to appear and participate in a deposition. The Court has granted defendants leave to file a motion to dismiss for failure to prosecute. Docket No. 68. Since that motion was filed, the Court has granted plaintiff four extensions of the response deadline. Docket Nos. 76, 79, 85, and 87. The Court has also conducted multiple on the record phone conferences with plaintiff and defense counsel to address plaintiff's continuing failure to respond to this motion. Text minute entry dated November 17, 2023. Despite all of the conferences and extensions, plaintiff has failed to respond to this motion. Thus, this factor weighs in favor of dismissal.
Finally, the Court must consider whether the imposition of a lesser sanction than dismissal would be appropriate. Given plaintiff's in forma pauperis status, the imposition of monetary sanctions is an empty gesture. Given plaintiff's refusal to be deposed and his stated intention to continue to refuse to be deposed while in restraints, there is no means available for this Court to move the matter forward in an efficient manner.
The same is true with respect to plaintiff's response to this pending motion. Despite having been given four extensions of time to respond to this motion extending over six months, plaintiff has failed to respond to this motion. In the absence of any effective lesser sanction, this factor weighs in favor of dismissal.
Defendant further seeks plaintiff's -- further seeks to have plaintiff's complaint dismissed pursuant to Rule 37 of the Federal Rules of Civil Procedure based upon plaintiff's refusal to be deposed. Here, as set forth above, plaintiff has refused and continues to refuse to be deposed unless certain restraints are removed. As the Court and defense counsel have repeatedly advised plaintiff, the determination as to what shackles will be placed on plaintiff during his deposition is made by the Department of Corrections and Community Supervision, rather than the Court and defense counsel. Plaintiff's refusal to be deposed is another ground weighing in favor of the dismissal of plaintiff's complaint.
In view of the foregoing, it is the Court's recommendation that plaintiff's action be dismissed without prejudice. The Court is going to do an order reflecting that recommendation and will annex the transcript of this proceeding to that order.
(The matter adjourned at 11:56 a.m.)
CERTIFICATION OF OFFICIAL REPORTER
I, JACQUELINE STROFFOLINO, RPR, CRR, Official Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
JACQUELINE STROFFOLINO
JACQUELINE STROFFOLINO, RPR, CRR FEDERAL OFFICIAL COURT REPORTER