Opinion
18 Civ. 9269 (PMH)(PED)
12-29-2021
Jennifer Duncan, Plaintiff, v. Sullivan County, et al., Defendants.
HONORABLE PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Paul L.Davison, U.S.M.J.
I. INTRODUCTION
Before the Court are joint applications by Defendants to dismiss this action pursuant to Federal Rules of Civil Procedure 37(b), 37(d), and 41(b), for Plaintiff's failure to prosecute, failure to respond to discovery, and failure to comply with the Court's orders. Defendants Marc Isaacs, Michael Allen, Samuel Roberts, and Samuel Spitzberg (collectively the “State Defendants”) filed a motion to dismiss on November 8, 2021. [State Defendants' Motion to Dismiss at Dkt. 227; Memorandum of Law at Dkt. 228; Attorney Declaration with Exhibits at Dkt. 229; Reply in Support at 246.] Defendants Sullivan County, Joseph Todora, and William Moon (collectively the “County Defendants”) joined the State Defendants' application and filed a supplemental motion on the same day. [County Defendants' Motion to Dismiss at Dkt. 230; Affidavit of Defendant Moon at Dkt. 231; Attorney Declaration with Exhibits at Dkt. 232; Replies in Support at Dkt. 247-48.] Defendant Constantina Hart joined both applications and also filed a supplemental motion. [Defendant Hart's Motion to Dismiss at Dkt. 233; Attorney Declaration with Exhibits at Dkt. 234; Reply in Support at Dkt. 249.]
Plaintiff objects and filed her initial response on November 22, 2021. [Attorney 1 Declaration with Exhibits at Dkt. 241; Memorandum of Law at Dkt. 242; Plaintiff's Declaration with Exhibits at Dkt. 243.] On November 24, 2021, Plaintiff sought an extension of time to file an additional response. [Dkt. 244.] I granted Plaintiff's request in part and allowed Plaintiff herself, not counsel, to file a supplemental affirmation by no later than December 6, 2021. I allowed Defendants to file responses to Plaintiff's supplemental affirmation by December 10, 2021. [Dkt. 245.] Plaintiff filed a supplemental affirmation on December 6, 2021with 21 additional exhibits. [Dkt. 253.] Defendants filed responses on December 10, 2021. [State Defendants' Response at Dkt. 254; Defendant Hart's Response at Dkt. 255; Defendant Moon's Response at Dkt. 256.]
Familiarity with the extensive record is assumed, and I set forth the background and procedural history only to the extent necessary to explain the basis for my recommendation. For the reasons below, I respectfully recommend that Your Honor GRANT Defendants' motions and dismiss the action with prejudice.
II. BACKGROUND
A. Initial Proceedings
Plaintiff commenced this action on October 10, 2018. [Complaint at Dkt. 1.] According to the Complaint, Plaintiff had been diagnosed with several severe medical conditions which substantially limit her activities of daily living. Plaintiff is hypersensitive to certain everyday household chemicals and, as a result, requires unique medical services and assistance. [Dkt. 1 at 9, ¶¶ 46-49.] The Complaint generally alleged that Plaintiff ceased receiving medical and disability benefits which had been funded through Medicaid, administered by the Sullivan County Department of Social Services, and provided through non-party entities. Plaintiff sought 2 “compensatory and punitive damages, declaratory judgment and preliminary and permanent injunctions to require defendants to provide service to which plaintiff is entitled and to cease and desist from interfering with the provision of those services.” [Dkt. 1 at 1, ¶ 1.]
Plaintiff originally brought this action against individuals and entities associated with the New York State Office of Temporary and Disability Assistance (“OTDA”) and the Sullivan County Department of Family Services (“DFS”). Of the remaining State Defendants, Defendants Spitzberg and Isaacs are current employees of the OTDA. Defendant Roberts was formerly the Commissioner but has since retired. Defendant Allen was formerly employed by the OTDA but has since left the agency. [Dkt. 228 at 3.] Plaintiff sued each of the State Defendants in his individual capacity. Of the County Defendants, Defendant Todora was the Commissioner of DFS and is now retired, and Defendant Moon is the current Deputy Commissioner. [Dkt. 232 at 2, ¶ 7.] Both are sued in their individual capacity. Defendant Hart was a staff attorney at DFS and is also sued in her individual capacity. [Dkt. 234 at 2, ¶ 4.]
Since the inception of this case, Plaintiff has been represented by Attorney Henry Christensen but has, nevertheless, maintained that she cannot meaningfully participate in the litigation. The Complaint stated:
Because of the extended and ongoing deprivation of services essential to her, Jennifer Duncan has been, and is, unable to participate fully or even reasonably or adequately in this or other litigation or administrative proceedings, will continue to be unable until aid has been restored, and she begs leave to supplement or amend her pleadings at such time as her services have been restored and she has had a reasonable time thereafter to recover her strength and functionality.[Dkt. 1 at 18, ¶ 110.]
Defendants filed motions to dismiss in January and February of 2019 [Dkt. 71, 87, and 3 89], after which Plaintiff filed her First Amended Complaint on April 15, 2019. [Dkt. 100.] Therein, Plaintiff repeated:
Because of the extended and ongoing deprivation of services essential to her, Jennifer Duncan has been, and is, unable to participate fully or even reasonably or adequately in this or other litigation or administrative proceedings and will continue to be unable until aid shall have been restored, and she begs leave to supplement or amend her pleadings at such time as her services have been restored and she has had a reasonable time thereafter to recover her strength and functionality and then to consult with counsel.[Dkt. 100 at 25, ¶ 135.]
Defendants filed motions to dismiss the Amended Complaint in April and May, 2019. [Dkt. 101, 108, 112, 118.] The State Defendants also moved, in the alternative, to stay the case pending a determination of Plaintiff's competency to proceed in this matter and, if necessary, to appoint a guardian ad litem. [Dkt. 102 at 10-12.] Plaintiff objected [Dkt. 133, 135] and, with regard to the State Defendants' motion to appoint a guardian, Plaintiff affirmed that her medical impairments:
. . . do not render her incompetent. When her aid is restored and she has an opportunity to regain her strength, she will be fully able to participate in her case.[Dkt. 133 at 3, ¶ 6.]
It is true that the Plaintiff is disabled and needs assistance with many activities of daily living. It is true, when that assistance is withheld, there are serious, terrible consequences to her and that, as alleged. . . until her aid is restored she will not be able to participate effectively in this litigation;. . . There is nothing permanently wrong with Plaintiff mentally, but she is being prevented, physically, from participating effectively in her case by the deprivation of her rights that is the subject of this action.[Dkt. 135 at 8.]
The Honorable Vincent Briccetti, presiding at the time, partially dismissed the Amended 4 Complaint on March 2, 2020. [Dkt. 143.] Judge Briccetti allowed Plaintiff's claims against the State Defendants to proceed “inasmuch as they concern these defendants' alleged failure to enforce OTDA's aid-continuing directives, ” and “Duncan's claims against Isaacs shall also proceed inasmuch as they concern Isaacs's alleged refusal to provide Duncan a fair hearing.” [Dkt. 143 at 31-32.] Judge Briccetti allowed Plaintiff to proceed against the remaining County Defendants concerning their “alleged failure [to] provide Duncan an agency conference, ” and dismissed her remaining claims. [Dkt. 143 at 32.] Finally, Judge Briccetti allowed Plaintiff to proceed against Defendant Hart concerning her “alleged refusal to (i) enforce OTDA's aid-continuing directives, (ii) accommodate Duncan's request for an agency conference, and (iii) provide Duncan her case file.” [Dkt. 143 at 32.]
In the same decision, Judge Briccetti denied the State Defendants' motion to stay the proceedings and appoint a guardian. He held, in pertinent part:
At this time, there is no reasonable indication that Duncan lacks capacity to maintain this action. Although the [First Amended Complaint] states Duncan “has been, and is, unable to participate fully or even reasonably or adequately in this or other litigation or administrative proceedings, ” (FAC ¶ 135), this allegation is belied by Duncan's commencement of the instant action and participation in this litigation. Moreover, it does not appear that Duncan's prior involuntary guardianship proceedings resulted in the appointment of a guardian to manage her affairs.[Dkt. 143 at 9-10.]
Following Judge Briccetti's decision, Plaintiff filed the Second Amended Complaint on March 16, 2020. [Dkt. 146.] Therein she stated:
Because of the extended and ongoing deprivation of services essential to her, Jennifer Duncan has been, and is, unable to participate fully or even reasonably or adequately in this or other litigation or administrative proceedings and will continue to be unable until aid shall have been restored, and she begs leave to supplement or amend her pleadings at such time as her services have been restored and she has had a5
reasonable time thereafter to recover her strength and functionality and then to consult with counsel.[Dkt. 146 at 33, ¶ 162.] Plaintiff's factual allegations remained largely the same:
This action is brought for monetary damages, for declaratory relief and for preliminary and permanent injunctions. Jennifer Duncan seeks the immediate and permanent restoration of essential services and monetary damages for the pain and suffering and other personal injury she has endured and continues to endure on account of the deprivation of services and constitutional rights. This action also seeks compensation for the deprivation of rights promised by the Constitution and laws of the United States of which the plaintiffs have been deprived by the individual defendants acting under the color of state law.[Dkt. 146 at 33-34, ¶¶ 163-64.] Plaintiff sought compensatory and punitive damages, the “restoration of the principal” of the special needs trust, and a preliminary and permanent injunction that her full benefits be restored. [Dkt. 146 at 35-36.]
Your Honor was assigned to this case on March 17, 2020. Defendants filed Answers to the Second Amended Complaint in April and May, 2020 [County Defendants' Answer at Dkt. 158; Defendant Hart's Answer at Dkt. 160; State Defendants' Answer at Dkt. 162.] Your Honor issued a Civil Case Discovery Plan and Scheduling Order on May 12, 2020 directing the parties to complete initial disclosures by June 22, 2020. [Dkt. 166 at 1, ¶ 4.] Your Honor also required that all fact discovery and depositions be completed by November 9, 2020 and that all discovery be completed by January 11, 2021. [Dkt. 166 at 1-2, ¶¶ 5(d) and 6(a).]
B. State Defendants' Discovery Demands
The State Defendants served Plaintiff with initial discovery demands on June 30, 2020. [Dkt. 229-1.] The parties agreed to extend the deadline to respond to September 2, and again to September 11, 2020. [Hertzog Declaration, Dkt. 228 at 4.] The State Defendants served responses to Plaintiff's discovery demands on September 2, 2020. [Dkt. 228 at 4.] Plaintiff did 6 not respond, and Mr. Christensen sent counsel an email on September 2 indicating that he did “not know when [Plaintiff] and I will be able to work together to provide responses.”[Dkt. 228 at 4.] The next day, Mr. Christensen requested a conference call between all counsel, which was scheduled for September 4. At some point, Mr. Christensen informed counsel that he would be unable to attend that conference. [Dkt. 167-1.] On the September 11, 2020 deadline, Plaintiff did not serve her responses to discovery and instead, through counsel, sent another email stating that Plaintiff would not be able to respond. [Dkt. 228 at 4-5.]
The State Defendants declined to produce the emails because they contained Plaintiff's medical information. [Hertzog Declaration, Dkt. 228 at 4 n.3.]
By letter dated September 28, 2020, counsel wrote to Mr. Christensen regarding Plaintiff's failure to respond to discovery and requested a meet and confer. [Dkt. 167-1.] Counsel and Mr. Christensen spoke on October 6, and Mr. Christensen agreed to respond to a portion of the State Defendants' discovery demands by October 14, 2020. [State Defendants' Letter Summarizing October 6 Meeting, at Dkt. 167-2.]
C. County Defendants' and Defendant Hart's Discovery Demands
The County Defendants served Plaintiff with initial discovery demands on June 29, 2020. [Dkt. 232-1 and 232-2.] They also served Plaintiff with amended demands for interrogatories and documents on July 20 and 22, 2021. [Dkt. 232-3 and 232-4.] Defendant Hart served demands for disclosures and documents on June 29, 2020. [Dkt. 234-1, 234-2 and 234-3.]
Plaintiff did not respond by the extended September 11, 2020 deadline. On October 5, counsel for Defendant Hart wrote to Mr. Christensen seeking a meet and confer to address Plaintiff's outstanding discovery responses. [see Defendant Hart's Letter Motion at Dkt. 168.] 7 Counsel for the County Defendants wrote to Mr. Christensen on the same day also seeking a meet and confer. [see County Defendants' Letter Motion at Dkt. 169.] The meet and confer took place on October 9. [see Letter Motions at Dkt. 168-69.] Mr. Christensen indicated that he had been facing difficulties drafting discovery responses due to Plaintiff's health and that he would seek an extension of time from Your Honor. Counsel for the County Defendants and Defendant Hart stated they would not oppose a request for an extension. [see Dkt. 168-69.]
D. Initial Motions to Compel
Plaintiff did not respond to discovery demands by the October 14, 2020 deadline and had not, as of that date, sought an extension from Your Honor. Instead, on October 14, Mr. Christensen emailed all counsel that he had “begun assembling documents for you from my files but would like a few more days to have a more meaningful collection for you.” The same email stated that Mr. Christensen “anticipate[s] I will be asking the court for an extension of the scheduling order.” [October 14 Email at Dkt. 167-3 at 2.] According to counsel, Plaintiff still had not responded by October 21, and counsel for the State Defendants emailed Mr. Christensen again asking when she could expect Plaintiff's responses and production. [Dkt. 167-3 at 2.]
Mr. Christensen did not request an extension from Your Honor, and on October 26, 2020, the State Defendants filed a letter seeking leave to move to compel Plaintiff to provide discovery. [Dkt. 167.] Counsel informed the Court that at that time, Plaintiff had “failed to provide any responses whatsoever, ” despite counsel's efforts to meet and confer with Mr. Christensen. [Dkt. 167 at 1-2.] On October 27 and 28, Defendant Hart and the County Defendants filed letters joining in the State Defendants' request for a pre-motion conference. [Dkt. 168-69.]
Plaintiff wrote to the Court in response on October 28, 2020. [Dkt. 170.] The letter 8 primarily discussed Plaintiff's ongoing medical conditions:
There remain enormous obstacles for Plaintiff to make document productions and for pre-trial fact discovery to be produced by her. Not only does her effective participation require the kinds of PSA [“Protective Services for Adults”] and PCA [“Personal Care Assistance”] support and medical access that have been and are lacking, but also most of her files are inaccessible to her and likely dangerously moldy from having been in her former location and from having been left in the rain before being put in a storage container that she cannot get without help or resources she does not have.
...
Plaintiff asserts there are also needs for her disability to be accommodated in this litigation and for her to get life-sustaining help she requires - not only so that she can prosecute this litigation, but even more so that she can stay alive....Until this kind of support is in place, Plaintiff cannot stipulate to, or predict, a firm date when she will be able to respond to written demands or, for instance, prepare for or participate in depositions.[Dkt. 170 at 3.]
With regard to the State Defendants' discovery demands, Mr. Christensen conceded that he had responsive documents in his possession but, for the first time, objected to having to make any sort of production:
The Assistant Attorney General asked me, and without fully thinking it through, I agreed, to produce, at least, such documents as I have in my file that are responsive to requests to produce. I have a large file of documents in Plaintiff's case. Still, I know there are many important documents my client has that I do not have. My file was not assembled and organized according to what is privileged as attorney-client communication or work product and what is not, and I have devoted a great deal of time attempting to assemble a meaning production of responsive non-privileged documents, even in the absence of participation by my client. It will take me longer to complete that task, but, even so, it does not seem right for me to be making a partial and preliminary production like this while my client is being prevented, by the lack of service from Defendants, from consulting with me and informing me and being kept abreast of what is happening. In any event, even if I were to complete such a partial production, that would not lead to a proper or prompt conclusion of fact discovery. . . which cannot properly proceed until Plaintiff's health and abilities are restored.9 [Dkt. 170 at 3.] Plaintiff asked that any conference before Your Honor to address Defendants' motions to compel should also address a putative motion by Plaintiff for injunctive relief, phrased as “interim relief that will be most critical for her now and that will be most effective for the conditions she is currently dealing with.” [Dkt. 170 at 34.]
The State Defendants objected to Plaintiff's request for interim and injunctive relief on November 2, 2020. [Dkt. 173.] Counsel explained that the State Defendants were sued in their individual capacities and could not provide the relief Plaintiff sought, and that OTDA was not responsible for providing those relief services. [Dkt. 173 at 1-2.] The County Defendants objected on November 3 and explained that the County does not provide those services:
Plaintiff's attorney wants interim relief in the form of personal care services in her residence. The Defendant County simply cannot do that. They have no authority, or ability, to provide personal care services to Plaintiff.... Personal Care Services (PCA) are provided by home care agencies with approval certificates from the New York State Department of Health.[Dkt. 175 at 4.] Counsel explained that the County Defendants had engaged Plaintiff to work with “Maximus” in order to determine her Managed Long Term Care eligibility and to begin receiving the services she requested, but that Plaintiff had refused to engage in the process. [Dkt. 175 at 2-8.] According to Defendant Moon, Maximus is the contract agent for the New York State Department of Health responsible for evaluating Medicaid recipients that require managed long term care in a home setting and is the sole legal process to reinstate Medicaid personal care 10 services. [Moon Affirmation, Dkt. 231 at 2, ¶ 3; at 3 ¶ 8.]
For example, Defendant Moon stated that Plaintiff asked the County to provide services including a wheelchair, oxygen, and doctors' visits, which the County is not equipped to provide. [Defendant Moon's Reply, Dkt. 247 at 6-7, ¶ 17.]
“Maximus, ” also known as New York Medicaid Choice, is the State's managed care enrollment program. See https://nymedicaidchoice.com and https://www.nyconnects.ny.gov/ providers/new-york-medicaid-choice-maximus-902247. Retrieved November 24, 2021.
Your Honor held a pre-motion conference on January 6, 2021. [Transcript at Dkt. 229-2.] At the start of the conference, Your Honor directed Mr. Christensen:
[Y]our first obligation is to the Court, and your first obligation is to comply with the Court's direction. And so to the extent that you have documents or answers to interrogatories that are available, they need to be produced forthwith. [A]nd to the extent that that requires you to look at and isolate attorney-client privileged documents, you'll be obligated to do that in every case that you have.[Dkt. 229-2, at 3 Lines 13-20.]
Mr. Christensen acknowledged that he had documents in his possession and that Plaintiff was in possession of additional responsive materials:
I have a great deal of documents, some of which are responsive to requests that have been made. I have a great deal of documents that are attorney-client privileged that, you know, will be objected to. The documents that are unavailable at this time are those in possession of plaintiff, and I'll get back to that when I get into the need for some kind of interim relief.[Dkt. 229-2, at 4 Lines 4-12.] Mr. Christensen explained that, in addition to documents in his office, Plaintiff had documents physically in her possession, as well as more materials stored in a storage facility in Middletown, New York. [Dkt. 229-2 at 4 Line 21 to 6 Line 7.] Your Honor asked Mr. Christensen whether the action should be discontinued without prejudice to recommence at another time, which Mr. Christensen declined. [Dkt. 229-2 at 6 Line 15 to 7 Line 1.] Your Honor instructed:
[Y]ou're not going to be in a position with me to commence an action and then tell me that you can't prosecute. So that's not an acceptable result to me, and that's not appropriate for any plaintiff to think that that's how this is going to proceed because that's not how it's going to proceed.[Dkt. 229-2 at 7, Lines 2-7.] 11
Your Honor allowed Mr. Christensen to be heard on his application for a preliminary injunction, and you asked Mr. Christensen to explain “why it's your belief that [Plaintiff] needs something before she can comply with discovery demands.” [Dkt. 229-2, at 7 Line 24 to 8 Line 10.] Mr. Christensen explained Plaintiff's condition and indicated that his application for interim relief was actually for the ultimate relief Plaintiff sought in this litigation:
Mr. Christensen: Well, those are the things I'm talking about in terms of interim relief. Yes.
Your Honor: And those are ultimate relief requests as well, right?
Mr. Christensen: Yes.[Dkt. 229-2, at 14 Lines 6-10.] Counsel for the County Defendants explained that the County was providing Plaintiff case worker support of at least 30 hours per week as well as SNAP benefits and food delivery to Plaintiff's home, and that Plaintiff had been regularly calling and leaving messages with County officials including Defendant Moon, but that Plaintiff had not been cooperating with the Maximus process, which required a phone call to begin the process and an additional call to establish care. [Dkt. 229-2, at 19 Line 1 to 20 Line 17.]
Your Honor directed the parties to work with Plaintiff to complete the Maximus process within a week and to provide services permitted by the program. [Dkt. 229-2, at 26 Line 24 to 29 Line 5.] With regard to discovery, Your Honor directed:
I'm going to give plaintiff 45 days to respond. You have documents, Mr. Christensen, that you need to produce. Produce them. You have documents that you need to review for attorney-client privilege. Review them.... We need to track down the other documents.... We need to confirm that they're still at the warehouse and the condition of them so that you can begin to address whatever needs to be addressed there.
As to the interrogatories. . . I”m going to add 60 days for the interrogatories to be12
responded to, and we're going to have a conference shortly after that to schedule depositions.[Dkt. 229-2 at 29 Line 11 to 30 Line 11.]
After the January 6 conference, Your Honor directed the parties as follows:
Plaintiff's request for leave to file a motion for injunctive relief denied in light of Court's directive that all parties and counsel shall meaningfully participate, as permitted by law, to assist plaintiff in obtaining services through Maximus, as discussed at the conference. By 1/13/2021, the parties shall file a joint letter, limited to two pages, advising of the status of the Maximus process. By 2/22/2021, plaintiff shall respond to defendants' extant document requests and produce documents; ascertain the existence, content, and condition of any documents in storage and in plaintiff's possession; and serve a privilege log by category/topic. By 3/8/2021, Plaintiff shall serve responses to the extant interrogatories.[January 6, 2021 Minute Entry.]
Your Honor extended the time for the parties to file the joint status letter on the Maximus process to January 27, 2021. [Dkt. 181.] On January 27, the County Defendants filed a letter stating that they attempted, on four occasions, to engage Plaintiff in the Maximus process, but that Plaintiff had refused to provide the necessary information and to participate on the call. [Dkt. 182 at 2.] On the same day, Mr. Christensen filed a letter in response denying that Plaintiff had frustrated the Maximus process. [Dkt. 183.] Through February and March, Your Honor directed the parties to continue engaging in the Maximus process and file additional joint status letters. [see Status Letters at Dkt. 184, 187, 189.]
E. Plaintiff's Failure to Comply With February 2021 Deadlines
Plaintiff failed to comply with discovery demands by the February 22, 2021 deadline and instead filed a request to extend her time to respond on that day. [Dkt. 190.] Mr. Christensen explained that he had “nearly completed the separation of privileged and non-privileged 13 documents in our office files....I am now in a position to begin preparing a large production.” [Dkt. 190 at 1.] Mr. Christensen also stated that he was contracting an industrial hygienist to inspect Plaintiff's storage container for mold. He requested “at least” four additional weeks to comply. [Dkt. 190 at 2.] According to counsel for the State Defendants, Plaintiff had failed to respond to any discovery demands, and Mr. Christensen failed to inform counsel that he would not be able to comply with discovery obligations until that day. [Letter Response at Dkt. 191.]
On February 23, 2021, Your Honor denied Plaintiff's request for a four-week extension but extended the time for Plaintiff to produce written responses, documents, and a privilege log to March 12, 2021, and Your Honor reaffirmed Plaintiff's March 8, 2021 deadline to respond to outstanding interrogatories. Your order also reminded Mr. Christensen that the Court had directed him to produce documents already in his possession, and that failure to comply with the Court's orders may result in sanctions including dismissal:
Notifying the Court on the day that discovery is due is unacceptable. The Court reminds plaintiff's counsel that the documents subject to production pursuant to the Court's Order on 1/6/2021 are those in counsel's own files; with respect to documents in his client's possession, counsel was directed to ascertain the existence, content, and condition of any such documents.
...
Plaintiff is reminded that failure to comply with the Court's Orders may result in sanctions, including dismissal of this action.[Dkt. 192.]
F. Plaintiff's Failure to Comply With March 2021 Deadlines
On March 2, 2021, Counsel for the County Defendants filed a letter regarding the Maximus process stating that Plaintiff continued to refuse to provide information on the joint telephone calls between herself, Maximus, the County Defendants, and counsel, and that she had 14 refused to participate in a telephone call that day. [Dkt. 193.] Mr. Christensen did not file a response. Instead, on March 8, the deadline to answer interrogatories, Mr. Christensen filed a letter informing the Court that he would not comply with the deadline and sought more time to respond. [Dkt. 194.] Mr. Christensen acknowledged his failure to timely seek an extension:
It is my fault, and I take the blame, for not approaching the Court earlier about this ongoing crisis, beyond having referred to the problem in my letters of January 27 and February 22, 2021. Your Honor reprimanded me for seeking a time extension on the due date of a document production in February, and now I am asking for further time extension of all dates, after the close of business on a day when documents are due.[Dkt. 194 at 1.]
Mr. Christensen explained, at length, Plaintiff's ongoing medical conditions, that plaintiff “has been totally debilitated by this, ” and he described conflicts with Plaintiff's landlord which are outside of this litigation. [Dkt. 194 at 2.] Mr. Christensen stated:
I am doing the best I can to keep the litigation moving forward, and so is she, but she cannot do anything more while under these conditions, and I cannot meet deadlines when my client is fighting a constant attack on her very existence.... I have submitted draft interrogatory answer to her, but she cannot review them, and I do not know when she will be able to.[Dkt. 194 at 3.]
On March 10, 2021, Your Honor extended Plaintiff's time to respond to discovery and directed her to provide written responses to discovery demands, document production, a privilege log, and her responses to interrogatories by March 23, 2021. Your Honor's endorsement, “marked peremptorily against Plaintiff[, ]” also directed that “[n]o further extensions will be granted.” [Dkt. 195.]
Plaintiff did not comply with the March 23 deadline, and instead filed a motion for “Extension of time and Disability Accommodations.” [Dkt. 196.] Mr. Christensen once again 15 listed the services which Plaintiff had requested during the January 6, 2021 conference. Mr. Christensen sought a directive from the Court, which he termed a “reasonable accommodation under Title II of the Americans with Disabilities Act, ” granting Plaintiff a “one-week respite to recover from disability related injuries, ” and requiring the County Defendants to work with Plaintiff in the Maximus process. [Dkt. 196 at 2-3.] Mr. Christensen also sought an additional three weeks to respond to outstanding discovery demands. [Dkt. 196 at 3.] The next ten pages of Mr. Christensen's letter delineated, virtually verbatim, information concerning Plaintiff's medical condition that had been described in her Second Amended Complaint, and accused the County Defendants of failing to meaningfully participate in the Maximus process.
Mr. Christensen's letter did not address why he himself had failed to respond to discovery to the best of his ability, produce documents in his possession, provide a privilege log, or otherwise comply with Your Honor's directive. Instead, Mr. Christensen stated:
As to the litigation and the outstanding discovery requests, I ask the Court to consider how impossible it is for a sick, infected and injured woman who needs assistance she does not have, who has been stuck in a bathroom for weeks and months, who has no access to papers and files, and who must spend her entire day limited to lying or crawling around. . . to devote time and energy. . . to responding to interrogatories. ...
Your Honor has directed the undersigned to produce responsive non-privileged documents by March 23, and once again, it has not been done. I have prepared a response as to files in my possession to the document request of Defendant Hart, but Plaintiff has not been able to see it yet. I will have the response to the State Defendants done by tomorrow, but Plaintiff will not be able to review it for days or weeks.... I have provided her with the forms of medical records release authorizations requested by the Attorney General, and she has signed them, and they will be delivered shortly....There is no way she will be able to respond properly or meaningfully to interrogatory requests until she restores her health....[Dkt. 196 at 12.]
All Defendants responded to Plaintiff's request on March 24, 2021. [Dkt. 197-99.] The 16 County Defendants explained their efforts to work with Plaintiff through the Maximus process and referred to a statement by Mr. Christensen that Plaintiff “will not proceed in any call to Maximus until her ‘disability can be accommodated.'” [Dkt. 197 at 1-2.] The State Defendants objected to Plaintiff's request for accommodations and informed the Court that, as of that date, Plaintiff had failed to provide “any document or any discovery responses whatsoever.” [Dkt. 198 at 2.] Defendant Hart also stated that Plaintiff had failed to respond to any of her discovery demands. [Dkt. 199.] Your Honor referred the case to me the next day. [Dkt. 200.]
G. Plaintiff's Failure to Comply With May 2021 Deadlines
I held a telephonic case management conference on April 16, 2021, at which Plaintiff appeared with Mr. Christensen. [Transcript at Dkt. 211.] I asked Mr. Christensen to provide a realistic sense as to when he would be able to respond to the outstanding discovery demands, to which Mr. Christensen responded:
Well, Your Honor, I don't think I can give you a reasonable, reliable schedule until someone tells me when Ms. Duncan is going to have enough help and enough medical attention that she can participate.
...
I can start putting it together, and I have started putting it together, and I have started putting it together to the best of my ability, but there are lots and lots of parts of this case that I need her consultation and guidance and information that I can't get when she is struggling to get her next meal or her next boiled egg, or deal with another imminent crisis. And I-yes, I can start. I have started, and I have done lots and lots, but I can't get to the end of it.[Dkt. 211 at 6 Lines 2-15.]
I asked Mr. Christensen again to provide a realistic deadline to respond to discovery, to which he responded:
I can't see any way to get to the end of this until at least-at least a month after she has her services in place and has restored her strength, and it's-you know, it's so17
close, and it's so doable that she could be performing again.[Dkt. 211 at 10 Lines 9-13.]
I explained to Mr. Christensen that cases generally proceed with minimal client involvement when a lawyer is involved, and that the responsibility to respond to discovery falls on Mr. Christensen. [Dkt. 211 at 10 Lines 14-17.] Mr. Christensen responded:
Well, Your Honor, I don't have access to all of the documents, and I need her help, and her being well to have access to all of them, and I don't have full knowledge of the significance or lack of significance of certain documents and -- or even of what among certain documents constitutes work product, and I can't engage -[Dkt. 211 at 10 Lines 18-23.]
Mr. Christensen conceded that he had received Defendants' requests for medical releases, and that Plaintiff “signed those the day she got them, ” but he failed, without providing a reason, to produce them. [Dkt. 211 at 11 Lines 20-24.] I directed Plaintiff to produce those signed medical releases within the week. [Dkt. 211 at 11 Line 25; at 14 Lines 4-5.]
With regard to the remaining outstanding discovery demands, I explained to Mr. Christensen that objections concerning privilege are primarily legal issues handled by attorneys, that limited access to his client should not prevent him from providing responses, and that Mr. Christensen was obligated to respond to discovery even if his responses would require supplementation in the future. [Dkt. 211 at 15 Lines 11-20.] I also instructed him that I would entertain an application for sanctions if he could not comply with my discovery deadline. [Dkt. 211 at 15 Lines 22-24.] I directed Mr. Christensen to respond to discovery and prepare a privilege log by May 28, 2021, and that Mr. Christensen should confer with counsel on the method of preparing the log. [Dkt. 211 at 16 Line 23 to 17 Line 12.] 18
Plaintiff did not fully comply with the May 28, 2021 deadline. On May 28, Plaintiff served a response to Defendant Hart's demand for documents. [Dkt. 234-4.] Plaintiff's response did not include a privilege log as directed. Plaintiff also failed to respond to interrogatories. Plaintiff's response began with a lengthy “preliminary statement” which stated, in pertinent part:
Without PCA assistance, most of her waking hours are necessarily devoted to survival issues, and she cannot address clerical or administrative activities of any kind. Her recovering access to her files will require, among other things, substantial PCA assistance, which is one of the the things being sought in this litigation. Plaintiff reserves the right to supplement these responses after Plaintiff has substantial PCA assistance and access to her files.[Dkt. 234-4 at 1-2.] Mr. Christensen affirmed that the documents being produced were only those materials in his possession. [Dkt. 234-4 at 4.]
On May 31, 2021, Plaintiff served a response to the State Defendants' request for the production of documents, which contained only those documents in Mr. Christensen's possession. [Dkt. 229-4.] Plaintiff included a similar “preliminary statement” indicating that she would not continue with this litigation until she received additional services:
She will not be able to engage effectively in litigation activities for some additional weeks or months after receiving regular PCA service and appropriate and effective medical care.
...
She and her counsel will not be able to provide complete responses to these requests until she has had access to medical care, has had substantial in-home PCA service restored, recovers her health and recovers access to her files and documents. Plaintiff will supplement these responses after Plaintiff can access medical attention, after Plaintiff has PCA assistance, after Plaintiff's health recovers, and after Plaintiff achieves access to her files and can consult with counsel.[Dkt. 229-4 at 3-4.]
Plaintiff also served a response to the County Defendants' demand for the production of documents on the same day. [Dkt. 232-5.] Her response also included a “preliminary statement” 19 describing her medical condition and stating, in pertinent part:
She will not be able to engage in litigation activities for some weeks or months.... She and her counsel will not be able to provide complete responses to these requests until she has had access to medical care, has had substantial PCA service restored, recovers her health and recovers access to her files and documents. Plaintiff will supplement these responses after Plaintiff can access medical attention, after Plaintiff has PCA assistance, after Plaintiff's health recovers, and after Plaintiff achieves access to her files and can consult with counsel.[Dkt. 232-5 at 3.]
I held a subsequent case management conference on June 3, 2021. [Transcript at Dkt. 215.] Mr. Christensen informed me that he mailed the signed medical releases to counsel, and that he produced documents the day before the conference. [Dkt. 215 at 5 Lines 1-6.] He conceded that he did not provide responses to interrogatories. [Dkt. 215 at 5 Lines 22-25.] Mr. Christensen explained that it would be difficult for Plaintiff to review interrogatory responses, to which I suggested appointing a guardian or some other representative to act on Plaintiff's behalf. [Dkt. 215 at 7, Lines 1-17.] Mr. Christensen responded that Plaintiff “certainly has resisted that.” [Dkt. 215 at 7, Lines 16-17.] I adjourned the conference to allow defense counsel time to review the production, and I reminded Mr. Christensen of his obligations under Rule 37 to comply with court orders or face sanctions. [Dkt. 215 at 12 Line 20 through 13 Line 15.]
I held a subsequent case management conference on June 17, 2021. [Transcript at Dkt. 209.] Counsel for the State Defendants stated that Plaintiff had failed to respond to any interrogatories from any of the parties, the document production consisted of files only in Mr. Christensen's possession, and Mr. Christensen had not produced a privilege log, but he did agree to provide new medical releases. [Dkt. 209 at 6-7.] Counsel for the County Defendants advised that for the past month, Plaintiff had been calling Defendant Moon every night leaving him 20 detailed voicemail messages, each of which counsel had provided to the other defense attorneys. [Dkt. 209 at 7-8.] He also reiterated that the County does not provide health services, and that the services which Plaintiff sought could only be provided through Maximus. [Dkt. 209 at 8.] Mr. Christensen conceded that the County had been providing Plaintiff with available services, including 45 hours of weekly personal care assistance through case workers. [Dkt. 209 at 9-10.]
According to Defendant Moon, as of November 29, 2021, Plaintiff had left him 315 voicemail messages since May 2021, each lasting 5 to 6 minutes in length and each detailing Plaintiff's issues, in addition to 75 phone calls between Plaintiff and Defendant Moon. [Defendant Moon's Reply, Dkt. 247 at 2, ¶ 3.]
I asked Mr. Christensen what progress had been made to obtain documents in Plaintiff's possession. Mr. Christensen informed me that he had received a quote “from a mold remediation and investigation firm for what it would cost to evaluate the condition of the document in that storage unit.” [Dkt. 209 at 11 Lines 21-24.] He further explained:
There. . . is a further complication that plaintiff would like very much, and insists, in fact, on being present when that is opened, as her personal property and things that may be unrelated [to] this, but may be important to her in other respects.[Dkt. 209 at 12 Lines 9-13.] Mr. Christensen informed me that Plaintiff may have a laptop computer in her possession which “presumably has some things on there, but she needs to be less ill and stronger with support to begin to deal with those things.” [Dkt. 209 at 13 Lines 8-12.]
I again suggested the possibility of appointing a guardian to act on Plaintiff's behalf, to which Mr. Christensen expressed concern:
One of my concerns is guardian. . .you don't see how that guardian can replace the plaintiff and do the things that you are asking the plaintiff to do under these circumstances. If she can't-she can't provide interrogatory information to me, I don't see how a guardian can provide it to me.[Dkt. 209 at 13 Line 22 to 14 Line 3.] 21
I asked Mr. Christensen why the action should not be discontinued in light of the fact that discovery has not proceeded, to which he responded:
I think it would be very prejudicial to the plaintiff to dismiss the case at this stage.
I think that would result in any amount of damages being taken out of the case for one thing. And when the reason that she can't participate is not her willfulness in any way, and even her inability is not even her doing. If she had the support she should have, she wouldn't have this problem.[Dkt. 209 at 14 Lines 14-20.]
Next, Mr. Christensen asked me to schedule a hearing so that Plaintiff could offer “an explanation of what her medical. . . conditions are and what kind of support and accommodations she needs to function and fully participate in the litigation.” [Dkt. 209 at 14 Line 24 to 15 Line 16.] I asked Mr. Christensen if he could accommodate Plaintiff to answer interrogatories, to which he replied “I believe I can.” [Dkt. 209 at 16 Line 2.] However, Mr. Christensen specified that he did not know if or when he could respond to Defendants' document requests:
Your Honor, again, that's interrogatory answers. I can't-and perhaps, you know, perhaps we can do the document production as well. I just-I just don't know physically what may be involved before we can get to the end of that.[Dkt. 209 at 16 Lines 10-14.]
I asked Mr. Christensen if he knew what documents were in Plaintiff's possession and how he planned to obtain them. He explained that Plaintiff's storage unit likely included paper copies of aide time sheets, medical records, and documents sent to Plaintiff by Mr. Christensen over the years. [Dkt. 209 at 17 Lines 8-16.] I granted Mr. Christensen an additional 30 days to comply with the outstanding discovery demands. [Dkt. 209 at 18 Lines 1-3.] I scheduled a subsequent case management conference on July 28, 2021.
H. Plaintiff's Failure to Comply With July 2021 Deadlines 22
Plaintiff served an amended response to the State Defendants' request for production of documents on July 27, 2021, one day before the scheduled case management conference. [Dkt. 229-8.] The production did not include responses to the County Defendants' or Defendant Hart's demands, nor did it include interrogatory responses or a privilege log. The amended response began with a lengthy “preliminary statement” describing Plaintiff's medical condition and accusing Defendants of failing to provide her with adequate support: “While Defendants have begun within the past few weeks to provide some of the support she needs, it is not yet sufficient....” [Dkt. 229-8 at 1-5.] The “preliminary statement” continued, in pertinent part:
She [Plaintiff] will not be able to engage effectively in litigation activities for some additional weeks or months after receiving full-time in home PCA [personal care assistance] service and appropriate and effective medical care. ...
She and her counsel will not be able to provide complete responses to these requests until she has had access to medical care, has had substantially more in-home PCA service restored, recovers her health and recovers access to her files and documents.[Dkt. 229-8 at 3-4.] Plaintiff also raised objections as to attorney-client privilege, despite the absence of a privilege log. [Dkt. 229-8 at 5.]
At the July 28 case management conference, I directed the parties to meet and confer to discuss Plaintiff's outstanding discovery obligations by August 12, 2021. I held a subsequent case management conference on September 20, 2021, at which Plaintiff appeared (telephonically) with Mr. Christensen. [Transcript at Dkt. 226.] Mr. Christensen informed me that Plaintiff would agree to discontinue the action on the condition that Defendants waived any defenses as to the expiration of the statute of limitations and if Defendants provided “assurance of her receiving life-sustaining services during the interim period.” [Dkt. 226 at 4, Lines 11-19.] Mr. Christensen elaborated: 23
But her health issues will keep her from being able to meet the kind of schedule that the Court and counsel want her to meet to-you know, we just can't pretend she can do something she can't do. She needs disability supports and services and accommodations....[Dkt. 226 at 4 Line 25 to 5 Line 4.] Mr. Christensen then asked for a stay: “I think the discovery schedule should be put on hold until she has certain services that she needs.” [Dkt. 226 at 5, Lines 8-10.]
I asked Mr. Christensen to propose a solution. Instead, Mr. Christensen accused the County of failing to provide services: “all of these things could be solved by the County. They just need to work with her and assign people....” [Dkt. 226 at 6, Lines 12-14.] I asked Mr. Christensen if Plaintiff had engaged in the Maximus intake process. Mr. Christensen said that that process had not yet occurred and again blamed the County Defendants. [Dkt. 226 at 6-7.]
Counsel for the County Defendants explained that the County does not and cannot provide the medical and personal care services which Plaintiff had been requesting, and that the County is not the proper entity for Plaintiff to request those services. [Dkt. 226 at 11.] He also stated that the Maximus process had not come to fruition due to “a total lack of cooperation on the part of the plaintiff to cooperate with the representatives, ” and that the County provided Plaintiff with caseworker support, but Plaintiff's demands were beyond the County's abilities.[Dkt. 226 at 14 Lines 1-7.] He also explained that Plaintiff continued sending extensive 24 messages to Defendant Moon almost every evening and made unspecified demands concerning mail delivery and housing. [Dkt. 226 at 14 Lines 3-12.] I allowed Defendants to file pre-motion letters seeking leave to move to dismiss. [Dkt. 226 at 15.]
Defendant Moon explained that in August 2021, he approached a County social worker to work with Plaintiff to move the Maximus process forward. Plaintiff initially resisted and then outright refused to work with the social worker in November 2021. [Defendant Moon's Reply, Dkt. 247 at 5, ¶ 14.] Defendant Moon also explained that the telephone screening process through Maximus served as a “gatekeeping” function to determine eligibility for benefits and did not require a recitation or preparation of Plaintiff's entire medical history, but that Plaintiff has not cooperated with that process. Id. at 5-6, ¶ 15.
According to Defendant Moon, he personally wrote to the Liberty Post Office, on official County letterhead, to secure postal services for Plaintiff. [Defendant Moon's Reply, Dkt. 247 at 4, ¶ 11.]
I. Motions to Dismiss
On October 12, 2021, the County Defendants filed a pre-motion letter to dismiss, explaining that Plaintiff had failed to respond to: (1) the County Defendants' demand for interrogatories served June 29, 2020; (2) the demand for the production of documents served June 29, 2020; (3) the amended demand for interrogatories served July 22, 2021; and (4) the amended demand for the production of documents served July 22, 2021. [Dkt. 220.] On the same day, Defendant Hart filed a pre-motion letter seeking to move to dismiss indicating that Plaintiff had failed to respond to her first set of interrogatories dated June 29, 2021 and demand for disclosures dated June 29, 2020, and Plaintiff did not serve complete responses to Defendant Hart's demand for documents. [Dkt. 221.] The State Defendants filed a letter on the same day asking to move to dismiss the case with prejudice for failure to prosecute or, in the alternative, on the merits. [Dkt. 222.]
In response, Mr. Christensen first filed 30 pages of documents from 2014 to 2015 which appear to pertain to services Plaintiff had been receiving at that time. [Dkt. 223-1.] Later that day, Mr. Christensen filed a “cross letter motion for discovery and for pre-motion conference for interim relief.” [Dkt. 224.] Therein, Mr. Christensen restated Plaintiff's medical conditions and argued that, as a result of her disability, Plaintiff's failure to provide discovery was “excusable 25 and not willful.” Id. He also asked for permission to move for unspecified “preliminary injunctive relief.” Id. at 9. During the case management conference on October 19, 2021, I granted Defendants' applications to file the instant motions to dismiss, which were filed on November 8, 2021.
J. Plaintiff's Response
My scheduling order directed Plaintiff to file her response by November 22, 2021. On November 8, Mr. Christensen filed a letter motion for an extension of time to file a motion for preliminary relief [Dkt. 236], to which he attached what appear to be time sheets for in-home care services from 2014 [Dkt. 236-1] and a July 16, 2021 notice of termination of tenancy [Dkt. 236-2.] I stayed the deadline for Plaintiff to file any such motion pending the resolution of Defendants' motions to dismiss. [Dkt. 239.]
Mr. Christensen filed a declaration objecting to the motions to dismiss on November 22, 2021. [Dkt. 241.] Mr. Christensen stated that Plaintiff had produced her initial Rule 26 disclosures on or around June 22, 2020. [Dkt. 241 at 1 ¶ 3; see Plaintiff's Rule 26 Disclosure at Dkt. 241-1.] He affirmed, to the best of his knowledge, that Plaintiff had provided Defendants with all medical releases which they had requested. [Dkt. 241 at 1 ¶ 4.] He stated that she made an extensive document production, referring to the documents that were in Mr. Christensen's possession. [Dkt. 241 at 1-3, ¶¶ 5-10.]
Plaintiff herself submitted a 13 page affirmation with six exhibits on November 23, 2021. [Dkt. 243.] Plaintiff described, in great detail, her medical conditions and the effects of her solvent-induced encephalopathy, which causes her to experience severe neurotoxic reactions to certain everyday chemicals. She argued that she was not willfully withholding discovery, but 26 could not comply due to the County's alleged refusal to provide services:
It is not that I will not produce documents and answer interrogatories; it is that I cannot, on account of my disability while the defendants are withholding the disability supports and accommodations I need....I could be doing these things. . . within the constraints of my disability, if Sullivan County were providing the personal care aides and the adult protective services it is obliged to provide. The Defendants should not be heard to complain about my responses to discovery requests while they are depriving me of daily needs necessary for existence and of the means to produce discovery.[Dkt. 243 at 2-3.]
Large sections of Plaintiff's affirmation are unintelligible, consisting of shorthand, incomplete sentences, and lists of jumbled words and phrases. Towards the end of her affirmation, Plaintiff again asks for additional time to move for preliminary relief. [Dkt. 243 at 10-11.] Plaintiff attached six exhibits including medical records from 2015 and 2019, a care plan from 2009, and what appears to be a pamphlet containing general information about Plaintiff's diagnoses. [Dkt. 243-1 to 243-6.]
Plaintiff also filed a 45-page supplemental affirmation on December 6, 2021. [Dkt. 253.] At the start of her affirmation, Plaintiff stated:
The Court may think this case is only about resolving an issue of inadequate services in the past.... However, that is not all this case is about. The severe deprivation and lack of essential life-sustaining services continues at a very large degree to the present.[Dkt. 253 at 1-2, ¶¶ 1-2.] Plaintiff described, in detail, her medical impairments, limitations to her activities of daily living, concerns regarding her current residence, and concerns regarding her food and nutrition. She detailed the specific services she is requesting as well as specific past instances of chemical exposure and injuries. [Dkt. 253 at 2-19, ¶¶ 2-43.]
Plaintiff alleged that the County “continue[d] to take advantage of this resulting 27 deterioration” and “continue[d] to prevent me from preparing for my court matters by depriving me of food and essentials.” [Dkt. 253 at 4, ¶¶ 8-9.] She stated:
The way to break the cycles is to ensure that the existing agreements, instructions, stipulations, and directions to provide Aid to Continue and services from the past several years are finally followed, in full by the County.
...
The PENE cycles I experience due to paperwork, meetings, physical over-exertion, and more are part of my medical condition and I need to manage them properly, to prevent more severe and long-lasting medical and health damage. Yet these needs appear not to be taken account of by the County or the Court....[Dkt. 253 at 4-5, ¶¶ 10, 13.] She requested what she described as “23 hours per day of nursing home level of care.” [Dkt. 253 at 8-9, ¶¶ 15, 17-18.] In the next section of her affirmation, Plaintiff appears to have reviewed and responded to portions of Defendants' filings in shorthand similar to her initial affirmation. Plaintiff first address the State Defendant's motion point by point. [Dkt. 253 at 19-21.] She then responds to Defendant Moon's affirmations paragraph by paragraph. [Dkt. 253 at 21-44.]
Plaintiff attached 21 exhibits to her second affirmation. Plaintiff attached medical records from 2015 through 2019, including doctors' notes opining that Plaintiff required assistance for activities of daily living. [Dkt. 253-1 to 253-6, 253-16.] In relevant part, a March 19, 2019 medical note states that Plaintiff cannot safely visit a courtroom or attend hearings. [Dkt. 253-6 at 2-3.] She filed the same 2009 comprehensive care plan and information packet on her impairments that she attached to her original affidavit. [Dkt. 253-9 and 253-10; repeated at Dkt. 243-1 and 243-2.] She filed an undated list of accommodations, as well as an updated list of accommodations dated November 23, 2021. [Dkt. 253-17, Dkt. 253-20.] Plaintiff included a June 2010 stipulation of discontinuance concerning a hearing before the OTDA. [Dkt. 253-8.] 28 She also attached a request for a fair hearing with OTDA from October 2021 and application materials for services filed with DFS. [Dkt. 253-19.]
Plaintiff attached extensive correspondence between her and Mr. Christensen and Defendants: an April 2018 letter from Mr. Christensen to Defendant Moon seeking services for Plaintiff [Dkt. 253-11]; a nine page letter from Mr. Christensen to counsel for the County Defendants dated September 19, 2021 complaining about the Maximus process [Dkt. 253-12]; another four page letter from Mr. Christensen to County Defendants' counsel on the same day [Dkt. 253-13]; a September 18, 2021 memorandum by Mr. Christensen on the Maximus process [Dkt. 253-14]; an October 12, 2021 demand letter from Mr. Christensen that the County provide assistance to Plaintiff outside of the Maximus process [Dkt. 253-15]; 61 pages of emails from Mr. Christensen to various County employees, including Defendant Hart, from 2017 to 2018 concerning Plaintiff's benefits [Dkt. 253-18]; and an October 5, 2021 letter to Plaintiff from Defendant Moon asking Plaintiff to work with a licensed medical social worker employed by the County [Dkt. 253-21].
Plaintiff also filed a March 6, 2017 decision from the New York Supreme Court, Sullivan County, concerning a guardianship proceeding commenced by the County. [Dkt. 253-7.] The state court noted that past guardians had been appointed for Plaintiff, including in August 2016 when a guardian was appointed to assist Plaintiff in filling out the appropriate paperwork to reinstate her services. However, that guardian asked to be relieved “because of difficulties encountered in attempting to work with” [Dkt. 253-7 at 4-5.] Nevertheless, the state court declined appoint a guardian for Plaintiff, due to “Ms. Duncan's adamant refusal to have a guardian appointed to assist her; the Court's observation, based upon her last two Court 29 appearances, that Ms. Duncan appreciates and understand the nature of this proceeding, and she understands the consequences of not having a guardian appoint for her.” [Dkt. 253-7 at 10.]
III. LEGAL STANDARD
Under Federal Rules of Civil Procedure 37 and 41, “the court has broad authority to impose appropriate remedies to cure the harm visited on the discovering party and to deter other litigants from similarly refusing to comply with the court's scheduling and discovery directives.” D'Attore v. City of New York, Case No. 10 Civ. 1782 (JSR)(MHD), 2012 WL 5871604, at *3 (S.D.N.Y. Sept. 27, 2012), report and recommendation adopted, 2012 WL 5871602 (S.D.N.Y. Nov. 20, 2012) (internal citations omitted).
Rule 37(b) provides, in relevant part, “[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court . . . may issue further just orders . . . [including] . . . dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v). Rule 37(d) provides that the Court can order sanctions if “a party, after being properly served with interrogatories . . . fails to serve its answers, objections, or written response.” Fed.R.Civ.P. 37(d)(1)(A)(ii). In evaluating the appropriateness of sanctions under Rule 37, including dismissal, a court should consider: (1) the non-compliant party's willfulness or the reasons for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of noncompliance. Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (internal citations omitted).
Rule 41(b) provides, in relevant part, “[i]f the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). In evaluating sanctions under this rule, courts consider a parallel set of 30 factors: (1) the duration of the plaintiff's failure to comply with the court order; (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Razzano v. Remsenburg-Speonk Union Free Sch. Dist., 751 Fed.Appx. 24, 26 (2d Cir. 2018) (internal citations omitted). “No single factor is generally dispositive, ” and the Court will review the dismissal “in light of the record as a whole.” Id. (internal citations omitted).
It is within the Court's sound discretion to dismiss an action as a sanction under either rule. Daval Steel Prod., a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) (“A district court has wide discretion in imposing sanctions, including severe sanctions, under Rule 37(b)(2)”); In re Suffern Partners, LLC, Case No. 21 Civ. 6088 (KMK), 2021 WL 5359669, at *1 (S.D.N.Y. Nov. 16, 2021) (“dismissal under Rule 41(b) is subject to the sound discretion of the district courts”). Indeed, dismissal is appropriate “‘not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a sanction.'” Agiwal, 555 F.3d at 303 (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)).
Nevertheless, “dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds 'willfulness, bad faith, or any fault' by the non-compliant litigant.” Agiwal, 555 F.3d at 302 (citing Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990), cert. denied, 499 U.S. 943 (1991)). A “party's persistent refusal to comply with a discovery order presents sufficient evidence of willfulness, bad faith or fault.” 31 Masi v. Steely, 242 F.R.D. 278, 285 (S.D.N.Y. 2007) (internal citations omitted). “The burden of proof is on the nonmovant to show ‘that his failure is justified or that special circumstances make an award of [sanctions] unjust.'” Flores v. Entergy Nuclear Operations, Inc., 313 F.Supp.3d 511, 521 (S.D.N.Y. 2018), aff'd, 768 Fed.Appx. 139 (2d Cir. 2019), cert. denied, Case No. 19-269, 2019 WL 5686498 (U.S. Nov. 4, 2019) (internal citations omitted).
IV. DISCUSSION
It is undisputed that Plaintiff is severely disabled and requires unique and extensive assistance to function on a daily basis. Plaintiff has counsel, however, and through counsel Plaintiff has initiated a lawsuit by which she seeks monetary relief from seven individual defendants as well as injunctive relief restoring her benefits. Now, despite five (5) extensions of Plaintiff's deadline to comply with Defendants' discovery demands, and extensive prodding from the Court, Plaintiff has failed to provide more than token responses, and this case has stalled as a result. In effect, if not by design, Plaintiff's approach to this litigation amounts to a strategy of withholding discovery compliance in an effort to secure “interim” equitable relief which Your Honor has declined to award. The individual defendants, most of whom do not even arguably have any capacity to provide the services and benefits Plaintiff demands, are left on the sidelines.
Notably, Plaintiff does not contend that she has fully complied with Defendants' discovery demands, not does she deny having failed to comply with court-imposed deadlines or other court orders. She argues instead that she should be excused from addressing her obligations as a litigant because her disability prevents her from complying. Ignoring the role of counsel in prosecuting her claims, Plaintiff suggests that the Court should stay the action until such time as she is not “physically unable” to comply with scheduling orders. [Dkt. 242, p. 13.] 32
For the reasons set forth below, I recommend that Your Honor find that Plaintiff is not exempt from the Federal Rules, and that her failure to comply with her discovery obligations, court deadlines, and other court orders warrants dismissal of this action.
A. Plaintiff is Obligated To Comply With The Federal Rules and Court Orders
Plaintiff has consistently maintained that she is unable to participate in these proceedings due to her disabilities. [Dkt. 1 at 18, ¶ 110.] But it goes without saying that many severely disabled plaintiffs successfully prosecute federal lawsuits, and Plaintiff has advanced no convincing reason why her attorney cannot proceed with this case and comply with court requirements, despite her disability. There is no “disabled plaintiff” exception to the Federal Rules of Civil Procedure. See, e.g., Burgie v. Euro Brokers, Inc., Case No. 05 Civ. 968 (CPS)(KAM), 2006 WL 845400, at *17 (E.D.N.Y. Mar. 30, 2006), aff'd, 2007 WL 1704178 (E.D.N.Y. June 12, 2007) (“Plaintiff, like all other plaintiffs, including those who may also suffer from physical or mental disabilities, and including those whose counsel may also have serious medical histories, is required to prosecute her action and comply with court orders.”).
Accordingly, even disabled pro se litigants are subject to sanctions, including dismissal, for failure to comply with rules and court orders. See, e.g., Bonilla Mojica v. Berryhill, 397 F.Supp.3d 513, 528-29 (S.D.N.Y. 2019) (noting that applicants for Social Security disability benefits are not exempt from Rule 41(b) dismissal); Ortega v. Apfel, 5 Fed.Appx. 96, 97 (2d Cir. 2001) (affirming Rule 41 dismissal against pro se plaintiff alleging disabilities under the Social Security Act); Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 85 (S.D.N.Y. 2003) (Rule 37 dismissal of ADA complaint for pro se plaintiff's failure to comply with discovery); D'Attore, 2012 WL 5871604 at *4 (pro se civil rights action dismissed with prejudice under 33 Rules 37 and 41despite plaintiff's physical disabilities). Plaintiff, who has the benefit of counsel, is not exempt from the rules.
B. Plaintiff's Failure to Comply With Discovery Deadlines and Court Orders Warrants Sanctions
As detailed above, Plaintiff (and her counsel) have failed to comply with numerous discovery deadlines and other court orders, despite having been granted five (5) extensions of time which elongated her time to comply by nearly a year. The passage of time is extraordinary, and the representations of Plaintiff and her counsel indicate that the end is nowhere in sight. The resulting standstill is unfair to Defendants. Sanctions are warranted under Rules 37 and 41. Because both rules consider overlapping factors, I address them together in more or less numerical order. See D'Attore v. City of New York, 2012 WL 5871604, at *4-5.
1. Willfulness and Reasons for Noncompliance (Rule 37 Point 1)
Plaintiff's failure to produce discovery or comply with the Court's orders has been willful, because a “persistent refusal to comply with” discovery orders is “sufficient evidence of willfulness [and] bad faith.” Masi, 242 F.R.D. at 285. As discussed, Plaintiff and her counsel have offered no persuasive reason as to why she has yet to produce a privilege log or provide basic interrogatory responses. Plaintiff has not convincingly explained why documents in attorney Christensen's possession were not produced until after multiple orders to do so. Plaintiff's refusal to allow anyone to enter her storage unit unless and until she is able to be present stands as a roadblock to production of documents in her possession, custody, or control. Plaintiff has also failed to explain why she has not provided electronic records on her laptop to 34 her attorney for review and production.
As Defendants point out, Plaintiff's claim that she is completely unable to participate in discovery appears inconsistent with her ability to prepare and submit a 45-page affirmation, accompanied by 21 exhibits, in response to these motions. [Dkt. 253.] See D'Attore, 2012 WL 5871604 at *4 (non-complaint plaintiff's ability “to churn out documents when he wishes to do so” shows willfulness).
2. Efficacy of Lesser Sanctions (Rule 37 Point 2, Rule 41 Point 5)
When imposing sanctions, “a court should always seek to impose the least harsh sanction that will remedy the discovery violation and deter such conduct in the future.” Silva v. Cofresi, Case No. 13 Civ. 3200 (CM)(JCF), 2014 WL 3809095, at *3 (S.D.N.Y. Aug. 1, 2014). However, “‘deliberate and persistent noncompliance [will render] lesser sanctions inappropriate,' and a ‘district court is not required to exhaust possible lesser sanctions before imposing dismissal or default if such a sanction is appropriate on the overall record.'” Urbont v. Sony Music Ent., Case No. 11 Civ. 4516 (NRB), 2014 WL 6433347, at *3 (S.D.N.Y. Nov. 6, 2014) (internal citations omitted). Therefore, “[e]ven the most severe Rule 37 sanctions may be imposed. . .so long as a warning has been given that noncompliance can result in a sanction.” Id. (internal citations omitted).
Here, no sanction other than dismissal would be meaningful. Plaintiff has already, and repeatedly, been directed to comply with her discovery obligations, and she has been granted multiple extensions of time to do so. There is no indication that Plaintiff has any significant assets, so monetary sanctions are not an option. See D'Attore, 2012 WL 5871604, at *6 (“Plaintiff had no assets, so monetary sanctions would be useless. Further orders and extensions would be similarly futile because Plaintiff defied earlier orders.”); Battiste-Downie v. Covenant House, 471 Fed.Appx. 78, 79 (2d Cir. 2012) (“[T]he efficacy of lesser sanctions to correct such 35 behavior is doubtful, given that Battiste-Downie refused to respond to the discovery demands even after being ordered repeatedly by the District Court to do so.”). Plaintiff's only response to this state of affairs is to again demand “interim” injunctive relief which this Court has emphatically declined to provide. The Court is left with no alternative sanction apart from dismissal.
3. Duration of Noncompliance (Rule 37 Point 3, Rule 41 Point 1)
As discussed above, the duration of Plaintiff's noncompliance here is extraordinary. The initial scheduling order contemplated an end to fact discovery by November 9, 2020, and the completion of all discovery by January 11, 2021. Plaintiff requested and received five (5) extensions of her deadline to produce documents, answer interrogatories, and provide a privilege log, ultimately extending her interim deadlines to July 2021, but Plaintiff has not complied with any deadlines and fact discovery remains at a standstill as a result. Plaintiff's counsel has had ample time to overcome logistical obstacles associated with Plaintiff's disabilities, but there is no indication that he has attempted to do so. Thus, the duration of Plaintiff's noncompliance weighs in favor of dismissal. See e.g. Agiwal, 555 F.3d at 303 (affirming dismissal, finding that six months of noncompliance weighed in favor of dismissal).
4. Whether Noncompliant Party was Warned (Rule 37 Point 4, Rule 41 Point 2)
As early as February 23, 2021, Your Honor explicitly warned Plaintiff, in writing, that “failure to comply with the Court's Orders may result in sanctions, including dismissal of this action.” [Dkt. 192.] During a subsequent case management conference on April 16, 2021, I warned Plaintiff's counsel that I would “entertain a motion for sanctions” if he again failed to comply with an extended discovery deadline [Dkt. 211 at 15, lines 22-24], and in setting a further 36 deadline at a June 3, 2021 conference I again reminded counsel that “Rule 37 looms.” [Dkt. 215 at 13, line 9.] Plaintiff, whose counsel is presumptively familiar with the rules in any event, was clearly on notice that her case could be dismissed for noncompliance.
5. Prejudice to Defendants by Further Delays (Rule 41 Point 3)
Defendants have been prejudiced by Plaintiff's lengthy and ongoing delays. “[W]hen a plaintiff's delay is ‘lengthy and inexcusable,' prejudice can be presumed.” Romero v. RSK Constr., Inc., Case No. 18 Civ. 7424 (VEC)(RWL), 2021 WL 4312486, at *2 (S.D.N.Y. June 30, 2021), report and recommendation adopted sub nom., 2021 WL 3494725 (S.D.N.Y. Aug. 9, 2021) (citing U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 256 (2d Cir. 2004)). Moreover, here each of the individual Defendants is sued in an individual capacity, so they have each had the threat of judgment and monetary damages looming over them, even though this litigation has stalled. See Portorreal v. City of New York, 306 F.R.D. 150, 153 (S.D.N.Y. 2015) (“Defendants have had the threat of a possible judgment hanging over them for almost four years with no opportunity to defend and seek an end to the litigation.”).
Plaintiff's arguments to the contrary are without merit. She argues that her failure to provide a privilege log is “inconsequential, ” but her responses state that she did in fact withhold documents on the basis of privilege. She argues that Defendants have not been prejudiced because they should already have relevant documents in their possession, but in our adversarial system Plaintiff is“required to produce relevant materials in [her] possession during discovery, regardless of whether they may already be in the possession of the opposing party.” Burns v. Bank of Am., Case No. 03 Civ. 1685 (RMB) (JCF), 2007 WL 1589437, at *12 (S.D.N.Y. June 4, 2007). Moreover, Plaintiff herself acknowledges that she has in her possession evidence which 37 is not in Defendants' possession. [Dkt. 242 at 9.] This factor weighs in favor of dismissal.
6. Docket Management vs. Plaintiff's Right to be Heard (Rule 41 Point 4)
The Court's need to manage its docket and alleviate congestion on its calendar must be “carefully balanced against plaintiff's right to an opportunity for a day in court.” Ruzsa v. Rubenstein & Sendy Attys at L., 520 F.3d 176, 178 (2d Cir. 2008).
This case is more than three years old, and Plaintiff has consistently maintained that she is incapable of complying with the Federal Rules. Plaintiff and her counsel have been afforded ample time to press her claims, despite her disabilities, but Plaintiff has failed to comply with basic discovery requirements. See, e.g. Portorreal v. City of New York, 306 F.R.D. 150, 153 (S.D.N.Y. 2015) (“Plaintiff has been given multiple opportunities and ‘ample time to inform the Court that [s]he stood ready to press [her] claims' in an effort to strike a balance between the Court's docket and Plaintiff's right to be heard.”) (internal citations omitted). Instead, Plaintiff insists that she cannot comply with discovery until she receives the relief she seeks, in effect holding the discovery process hostage to her demands.
This factor, too, weighs in favor of dismissal. See D'Attore v. City of New York, supra, 2012 WL 5871604, at *5 (“By violating the court's orders requiring [her] to provide relevant information to defendants, [Plaintiff] has thwarted our ability to manage this litigation in an efficient and economical manner. Were this behavior to be ignored, we would undermine the stated institutional policies and leave to a litigant the choice of whether to comply with court mandates.”)
V. CONCLUSION
For the reasons set for above, I conclude, and respectfully recommend that Your Honor 38 conclude, that Defendants' motions should be GRANTED, and that this case be DISMISSED WITH PREJUDICE.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also FED. R. CIV. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Philip M. Halpern, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. Requests for extensions of time to file objections must be made to Judge Halpern. 39