Opinion
1:19-cv-2598-MKV
07-21-2022
RICHARD LEBRON, Plaintiff, v. RAUL RAMOS, M.D., Sight Medical Director, North Infirmary Command; WOLF, Registered Nurse, Hemo-Dialysis Nurse, North Infirmary Command; CORREA, correction Officer, North Infirmary Command; NWAGWU, Correction Officer, North Infirmary Command, Defendants.
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OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE
Plaintiff Richard Lebron, an inmate proceeding pro se and in forma pauperis (“IFP”), brings this action under 42 U.S.C. § 1983 against Defendants Raul Ramos, M.D., Natanyah Wolfe, RN, Correction Officer Renso Correa (“CO Renso”), and Correction Officer Nwaokoma Nwagwu (“CO Nwagwu”) (collectively, “Defendants”), alleging violations of his civil rights based upon the medical care he received at Rikers Island. (Amended Complaint (“Am. Compl.”) [ECF No. 4]). Specifically, Plaintiff alleges that in the late fall of 2018, Dr. Ramos discontinued Plaintiff's Methadone prescription and refused to allow him to be examined by a renal specialist. (Am. Compl. at 4). Plaintiff alleges that these actions caused him to suffer from high blood pressure and deterioration of his kidney condition. (Am. Compl. at 4). Plaintiff further alleges that in March 2019, he began bleeding after Nurse Wolfe cut his dialysis catheter with a scissor, and COs Correa and Nwagwu refused to call a medical emergency. (Am. Compl. at 5).
Since Plaintiff filed his initial complaint in March 2019, this case has been marked by significant and repeated delays due to Plaintiff's non-compliance with his discovery obligations. The discovery deadline in this case has been extended five times, Defendants have re-served on Plaintiff the same interrogatories and requests for productions multiple times, and Plaintiff has repeatedly failed to appear for meet and confers with Defendants and at the Court ordered postdiscovery conference. Significantly, in this action for deliberate indifference to medical needs, Plaintiff has yet to provide Defendants with HIPAA authorizations, which have been outstanding for over a year, despite repeated requests and Court orders.
Defendants now move to Dismiss Plaintiff's Amended Complaint for failure to prosecute and for failure to comply with the Court's orders. [ECF Nos. 115]. Plaintiff has not filed an opposition. For the reasons stated below, Defendants' motion is granted.
BACKGROUND
I. Plaintiff Initiates This Action And The Court Attempts To Locate Volunteer Counsel
Plaintiff commenced this action on March 22, 2019 by filing the initial complaint only against Dr. Ramos [ECF No. 1]. Shortly thereafter, prior to serving the complaint, Plaintiff amended his complaint to add the other defendants. The Court subsequently granted Plaintiff IFP status. [ECF No. 7]. After service was made and all Defendants had answered [ECF Nos. 11, 16, 17, 24, 25, 28, 29-32], on November 21, 2019, the Court ordered the Clerk of Court to attempt to locate pro bono counsel to represent Plaintiff for the limited purpose of conducting discovery. [ECF No. 36].
In February 2020, this case was reassigned to me. After six months of an unsuccessful search for volunteer counsel, the Court ordered that the case should proceed with Plaintiff appearing pro se, and scheduled an initial pretrial conference to be conducted telephonically on July 21, 2020. [ECF No. 37]. At the July 2020 initial pre-trial conference, Plaintiff informed the Court that he had obtained counsel and would be represented going forward. [ECF No. 41]. As a result, the Court adjourned the initial pre-trial conference and ordered that counsel for Plaintiff file an appearance by August 12, 2020. [ECF No. 41].
Pro bono counsel timely appeared [ECF Nos. 42-43], but moved to withdraw as counsel two months later after receiving and reviewing plaintiff's full medical records from Bellevue and the Department of Corrections [ECF No. 47]. The Court initially denied counsel's motion without prejudice for failure to file an affidavit that satisfied the requirements of Local Rule 1.4 [ECF No. 49], but ultimately, after counsel filed an affidavit in support of her motion to withdraw [ECF No. 51], the Court granted counsel's motion. [ECF No. 53]. The Court ordered Plaintiff to file a letter by January 6, 2021 advising the Court whether he had retained substitute counsel or whether he would proceed pro se. [ECF No. 53]. The order warned that “[f]ailure to comply with this Order and the deadline herein may result in sanctions, including the preclusion or dismissal of claims.” [ECF No. 53]. The Court subsequently extended Plaintiff's deadline to retain Pro bono counsel an additional thirty days and again warned Plaintiff that “[f]ailure to comply with this Order and the deadline herein may result in sanctions, including the preclusion or dismissal of claims.” [ECF No. 55]. However, Plaintiff did not timely file a letter advising the Court whether he had retained substitute counsel or whether he would proceed pro se. Accordingly, on February 8, 2021, almost two years after Plaintiff initiated this action, the Court ordered that the case needed to move forward with Plaintiff proceeding pro se and scheduled an initial case management conference for March 9, 2021. [ECF No. 58]. Given Plaintiff's pro se status, the Court attached to its order copies of the Court's individual rules, a Discovery Guide, that provides a basic overview of discovery procedures and the initial pretrial conference, and a blank copy of the model Case Management Plan and Scheduling Order for cases pending before me. [ECF No. 58]. The next day, the Court received a letter from Plaintiff advising the Court that he intended to proceed pro se. [ECF No. 59].
II. Plaintiff Fails To Comply With His Discovery Obligations For Over a Year
A. Plaintiff Misses The First Fact Discovery Deadline
The initial pretrial conference in this case was held as scheduled on March 9, 2021. [ECF No. 62]. Immediately following that conference, the Court filed a scheduling order, in which it directed Defendants to provide to Plaintiff HIPAA-compliant medical record release authorizations and for Plaintiff to return executed authorizations to Defendants within a week of receipt. [ECF No. 62]. The Court also directed Defendants to submit a proposed order authorizing the deposition of Plaintiff at the Elmira Correctional Facility where Plaintiff was incarcerated. [ECF No. 62]. The Court admonished the parties, in bold underlined text, that any failure to comply with the deadlines in the scheduling order “ may result in sanctions, including preclusion or dismissal of claims or defenses. ” [ECF No. 62].
That same day, the Court entered the Case Management Plan and Scheduling Order, which directed Plaintiff to provide HIPAA-compliant medical record release authorizations to Defendants no later than one week from the date Plaintiff received them. [ECF No. 63]. The Court ordered that fact discovery would close on June 11, 2021. [ECF No. 63]. The Case Management Plan and Scheduling Order again stated, in bold text, that “[f]ailure to comply with the deadlines set forth herein may result in sanctions, including preclusion at trial of information not provided or dismissal of claims or defenses.” [ECF No. 63].
Defendants timely filed a proposed order authorizing the deposition of Plaintiff to be conducted on May 13, 2021 via video conference at the Elmira Correctional Facility [ECF No. 64], which order the Court endorsed. [ECF No. 65].
Defendants sent Plaintiff demands for HIPAA authorizations three times: on March 11, 2021, April 19, 2021, and May 7, 2021. [ECF No. 74]. They also sent to Plaintiff initial requests for interrogatories and production of documents on March 23, 2021. [ECF No. 74]. Defendants received some of the HIPAA authorizations from Plaintiff on May 8, 2021, but Plaintiff advised Defendants that he needed additional time to have the remaining authorizations notarized and that he would then send the remaining authorizations to Defendants. [ECF No. 74]. Accordingly, Defendants requested, for the first time, that the Court extend the fact discovery deadline by thirty days to July 12, 2021. [ECF No. 69]. Because Defendants had not timely received from Plaintiff any initial disclosures, responses to requests for authorizations, responses to initial interrogatories, or responses to requests for production, Defendants also submitted a new proposed order authorizing the deposition of Plaintiff at the Elmira Correctional Facility on June 23, 2021. [ECF No. 73].
In a letter dated April 26, 2021, Defendants advised the Court that they had been advised by the correspondence unit at Elmira Correctional Facility that legal mail from Defendant's counsel had been signed for by Plaintiff. [ECF No. 69]. Nonetheless, upon conferring with Plaintiff, he advised Defendants that he did not receive the requests for authorizations, initial interrogatories, and requests for production of documents. [ECF No. 69]. Defendants therefore re-sent those discovery demands to Plaintiff on April 19, 2021. [ECF No. 69]. It is unclear from the record why Defendants re-sent those discovery demands a third time in May of 2021.
The Court granted Defendants' request to extend the fact discovery deadline for the first time and extended the deadline to July 12, 2021. [ECF No. 76]. The Court also endorsed Defendant's proposed order authorizing the deposition of Plaintiff at the Elmira Correctional Facility on June 23, 2021. [ECF No. 77]. Once again, the Court admonished the parties, in bold underlined text, that failure to comply with the Court's orders and the deadlines therein “ may result in sanctions, including dismissal of claims or defenses. ” [ECF No. 76].
B. Plaintiff Misses The Second Fact Discovery Deadline
On May 24, 2021, counsel for Defendants had a meet-and-confer session with Plaintiff, during which Plaintiff agreed to mail the remaining outstanding authorizations and discovery responses by May 26, 2021. [ECF No. 78]. When Defendants still had not received the discovery from Plaintiff on June 3, 2021, Defendants requested a conference to address the discovery issues and advised that they would likely request a second extension of the fact discovery deadline to give Defendants enough time to obtain medical records once they received the HIPAA authorizations prior to Plaintiff's deposition, which was at that time scheduled for June 23, 2021. [ECF No. 78]. About a month later, in anticipation of a conference scheduled for July 6, 2021, Defendants filed a status letter in which they outlined their efforts to obtain discovery from Plaintiff and represented that they had still not received authorizations or discovery responses from Plaintiff. [ECF No. 79]. In that letter, Defendants also represented that Plaintiff had refused to appear for two scheduled phone conferences with Defendants for the purpose of collaborating on a joint status letter to submit to the Court in advance of the conference as required by the Court's order. [ECF No. 79].
That July 6, 2021 status conference was adjourned due to Plaintiff's hospitalization. [ECF No. 81]. In a subsequent order, the Court granted Defendants' second request for an extension of the fact discovery deadline and extended the deadline to August 31, 2021. [ECF No. 81]. The Court ordered Plaintiff to meet and confer with Defendants regarding outstanding discovery, to set deadlines for Plaintiff to produce all outstanding medical authorizations, to produce responses to Defendants' interrogatories and document demands, and ordered Plaintiff to sit for a deposition on or before the extended fact discovery cut-off. [ECF No. 81]. The Court directed the parties to submit a joint status letter on August 3, 2021, in anticipation of a further status conference. [ECF No. 81]. The Court admonished, in bold, capitalized, and underlined text, that “ PLAINTIFF IS ON NOTICE THAT FURTHER NONCOMPLIANCE WITH DISCOVERY OBLIGATIONS MAY RESULT IN SANCTIONS, INCLUDING PRECLUSION OF RELIANCE ON ANY MATERIAL NOT PROVIDED TO DEFENDANTS, PRECLUSION OF CLAIMS, AND/OR DISMISSAL OF THE CASE. PLAINTIFF ALSO RISKS DISMISSAL OF THE CASE FOR FAILURE TO PROSECUTE. ” [ECF No. 81].
C. Plaintiff Misses The Third Fact Discovery Deadline
On August 9, 2021, Defendants requested an extension of the deadline to submit a joint status letter, [ECF No. 84], which the Court subsequently granted [ECF No. 85]. Defendants represented that they had scheduled a meet-and-confer with Plaintiff for that same day, but that when Defendants appeared for the meet-and-confer, they were advised by New York State Department of Corrections and Community Supervision (“DOCCS”) that Plaintiff was on a religious callout and refused to appear for the meet-and-confer. [ECF No. 84]. Defendants rescheduled the meet-and-confer for the next day [ECF No. 84], but Plaintiff again failed to appear [ECF No. 87]. Accordingly, in anticipation of a status conference on August 13, 2021, Defendants filed a status letter only on their own behalf. [ECF No. 87]. In that letter, Defendants represented that they were still not in receipt of HIPAA authorizations or responses to any of their other discovery demands. [ECF No. 87].
On August 13, 2021, the Court held a status conference. [ECF No. 88]. At the status conference, Plaintiff represented that he had not provided responses to discovery requests because he was in the hospital with an infection. [ECF No. 89 at 4:23-5:2]. Plaintiff also represented that he could not send the medical authorizations because one of the correction officers in the prison law library refused to notarize the documents. [ECF No. 89 at 6:7-21]. As such, the Court ordered Plaintiff to send to Defendants the medical authorizations without notarizations by the end of the subsequent week. [ECF No. 89 at 7:16-17, 8:14-20]. Plaintiff responded that he would send the medical authorizations to Defendants the subsequent Monday morning, August 16, 2021. [ECF No. 89 at 8:21-25].
The Court next inquired about Plaintiff's answers to Defendants' interrogatories and document demands. [ECF No. 89 at 9:1-3]. After Plaintiff indicated that he was unfamiliar with those requests, the Court ordered Defendants again to send to Plaintiff copies of the interrogatories and document demands, which Defendants agreed to do. [ECF No. 89 at 9:1517]. The Court again extended the deadline for completion of fact discovery, including Plaintiff's deposition, to October 30, 2021. [ECF No. 89 at 11:1-14]. At the conclusion of the status conference, the Court admonished Plaintiff that he carried the burden to give basic information to Defendants as part of his discovery obligations. [ECF No. 89 at 11:17-22]. The Court warned Plaintiff that if he did not comply with his discovery obligations, that the Court would enter an order precluding him from making arguments or relying on anything he had not turned over. [ECF No. 89 at 11:22-24]. The Court continued that if the pattern of noncompliance with discovery obligations continued, “it may result in your case being dismissed.” [ECF No. 89 at 11:25-12:1]. Plaintiff confirmed that he understood. [ECF No. 89 at 12:2-4].
Thereafter, the Court issued an order to memorialize the rulings from the status conference. [ECF No. 88]. The Court, for a third time, extended the fact discovery deadline, this time to October 30, 2021. [ECF No. 88]. The Court ordered Defendants to re-serve copies of the interrogatories, and for Plaintiff to produce all outstanding medical authorizations and responses to document requests and interrogatories. [ECF No. 88]. The Court admonished Plaintiff, again, in bold, capitalized, and underlined text, that “ PLAINTIFF IS ON NOTICE THAT FURTHER NONCOMPLIANCE WITH DISCOVERY OBLIGATIONS MAY RESULT IN SANCTIONS, INCLUDING PRECLUSION OF RELIANCE ON ANY MATERIAL NOT PROVIDED TO DEFENDANTS, PRECLUSION OF CLAIMS, AND/OR DISMISSAL OF THE CASE. PLAINTIFF ALSO RISKS DISMISSAL OF THE CASE FOR FAILURE TO PROSECUTE. ” [ECF No. 88].
D. Plaintiff Misses The Fourth Fact Discovery Deadline
On October 4, 2021, Defendants filed a letter representing that they had timely re-served their interrogatories and document requests, but that Plaintiff did not respond to the interrogatories or document requests by the Court's imposed deadline. [ECF No. 91]. Defendants represented that they had a meet-and-confer with Plaintiff on October 1, 2021, at which Plaintiff represented that he was “not sure” if he ever received Defendants' interrogatories and document requests and requested that Defendants send him yet another copy of the interrogatories and document requests. [ECF No. 91]. Accordingly, Defendants requested a fourth extension of the fact discovery deadline, this time for thirty days. [ECF No. 91].
Defendants subsequently filed another letter informing the Court that Defendants reserved their interrogatories and document requests on Plaintiff, but that during another meet-and-confer on October 18, 2021, Plaintiff represented that he still never received the interrogatories and document requests. [ECF No. 92]. Defendants spoke with Elmira Correctional Facility and confirmed that Plaintiff had not received any legal mail in the prior two weeks due to mail service issues there. [ECF No. 92]. To remedy this issue, Defendants got approval from Elmira Correctional Facility, on a one-time basis, to email the interrogatories and document requests to Plaintiff's guidance counselor, to then be hand-delivered to Plaintiff. [ECF No. 92].
As a result, the Court granted Defendants' fourth request for an extension of the fact discovery deadline and set the fact discovery deadline for November 30, 2021. [ECF No. 93]. The Court, again, specifically admonished Plaintiff, in bold, capitalized, and underlined text, that “ PLAINTIFF IS ON NOTICE THAT FURTHER NONCOMPLIANCE WITH DISCOVERY OBLIGATIONS MAY RESULT IN SANCTIONS, INCLUDING PRECLUSION OF RELIANCE ON ANY MATERIAL NOT PROVIDED TO DEFENDANTS, PRECLUSION OF CLAIMS, AND/OR DISMISSAL OF THE CASE. PLAINTIFF ALSO RISKS DISMISSAL OF THE CASE FOR FAILURE TO PROSECUTE. ABSENT EXTRAORDINARY CIRCUMSTANCES, THERE WILL BE NO FURTHER EXTENSION OF THE FACT DISCOVERY DEADLINE. ” [ECF No. 93].
E. Plaintiff Misses The Fifth Fact Discovery Deadline
On November 17, 2021, Defendants submitted a proposed order authorizing the deposition of Plaintiff at the Elmira Correctional Facility on November 30, 2021 [ECF No. 95], which the Court endorsed. [ECF No. 96]. On December 2, Defendants filed a letter requesting a fifth extension to the fact discovery deadline. [ECF No. 98]. Defendants represented that they had appeared for Plaintiff's deposition, but were informed by DOCCS that Plaintiff could not appear because he was receiving medical treatment. [ECF No. 98]. Moreover, Defendants advised the Court that they had met with Plaintiff and he advised them that he received Defendants' initial requests for interrogatories and production of documents and mailed his responses back. Defendants represented that they never received Plaintiff's responses. [ECF No. 98].
About a week later, Defendants filed a status letter in anticipation of a scheduled post-fact discovery conference. [ECF No. 101]. Defendants advised the Court that they had deposed Plaintiff on December 6, 2021. [ECF No. 101]. They also informed the Court that they received Plaintiff's responses to their interrogatories and document requests, but that these responses were incomplete. [ECF No. 101]. Specifically, Plaintiff did not answer several of the interrogatories and did not respond to any of the document requests. [ECF No. 101]. Defendants also advised the Court that, after the deposition, Defendants served follow-up post-deposition demands for discovery. [ECF No. 101]. Specifically, Defendants demanded HIPAA authorizations for the providers Plaintiff identified at his deposition, and a copy of his journal regarding his medical treatment about which Plaintiff also testified at his deposition. [ECF No. 101].
Thereafter, the Court filed an order granting Defendants' request for a fifth fact discovery deadline and extended the deadline to January 17, 2022. [ECF No. 103]. The Court scheduled a post-fact discovery conference for February 8, 2022. [ECF No. 103]. The Court, once again, specifically admonished Plaintiff, in bold, capitalized, and underlined text, with what the Court advised was a final warning: “ PLAINTIFF IS ON NOTICE THAT FURTHER NONCOMPLIANCE WITH DISCOVERY OBLIGATIONS MAY RESULT IN SANCTIONS, INCLUDING PRECLUSION OF RELIANCE ON ANY MATERIAL NOT PROVIDED TO DEFENDANTS, PRECLUSION OF CLAIMS, AND/OR DISMISSAL OF THE CASE. PLAINTIFF ALSO RISKS DISMISSAL OF THE CASE FOR FAILURE TO PROSECUTE. DISCOVERY IN THIS CASE HAS BEEN EXTENDED FIVE TIMES AND PLAINTIFF HAS BEEN REPEATEDLY WARNED THAT NONCOMPLIANCE WITH DISCOVERY OBLIGATIONS MAY RESULT IN SANCTIONS. THIS IS PLAINTIFF'S FINAL WARNING TO COMPLY WITH HIS DISCOVERY OBLIGATIONS. ABSENT EXTRAORDINARY CIRCUMSTANCES, THE FACT DISCOVERY DEADLINE WILL NOT BE EXTENDED AGAIN. ” [ECF No. 103].
F. Plaintiff Misses The Sixth Fact Discovery Deadline And Plaintiff Fails To Appear For Meet-And-Confer With Defendants And For A Court Conference
On January 14, 2022, Defendants filed a letter requesting a sixth extension to the fact discovery deadline. [ECF No. 105]. Defendants advised the Court that, after Defendants received Plaintiff's incomplete discovery responses, they advised him of the deficient nature of those responses and demanded that Plaintiff supplement them. [ECF No. 105]. Defendants provided plaintiff with another copy of their interrogatories and document requests. [ECF No. 105]. Moreover, in January 2022, Defendants advised Plaintiff that their demands for HIPAA authorizations, a copy of his journal regarding his medical treatment, and his supplemented responses to Defendants' interrogatories and document requests were outstanding and again requested responses to their demands. [ECF No. 105].
On January 19, 2022, Defendants filed another status letter. [ECF No. 106]. Defendants advised the Court that they had appeared for a scheduled meet-and-confer with Plaintiff that day regarding outstanding discovery items, but that they were advised by DOCCS that Plaintiff refused to appear. [ECF No. 106]. Accordingly, Defendants requested a conference with the Court to discuss sanctions and a contemplated motion to dismiss for failure to prosecute. [ECF No. 106]. The Court granted Defendants' request and scheduled a conference to discuss sanctions and motion practice. [ECF No. 110]. The Court advised the parties that they should be prepared to discuss Defendants' request at the February 8, 2022 post-fact discovery conference. [ECF No. 110].
On February 8, 2022, the Court held the conference at which Defendants appeared. [ECF No. 111]. However, DOCCS informed the Court that Plaintiff refused to attend the conference with the Court. [ECF No. 111]. Accordingly, the Court granted Defendants' leave to file a motion for sanctions. [ECF No. 111]. The Court directed Defendants to file their motion on or before February 22, 2022 and set Plaintiff's deadline to oppose the motion for March 22, 2022. [ECF No. 111]. On March 1, 2022, Plaintiff filed a sworn affidavit attesting that he never refused to attend any conference and that DOCCS “has been dishonest and disingenuous.” [ECF No. 114].
After Defendants' initial motion to dismiss was filed deficiently, Defendants refiled their motion and supporting documents a week later. [ECF Nos. 112, 115-17]. Defendants seek dismissal of the Amended Complaint with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and as Rule 37 sanctions for failure to comply with discovery. (Def. Br. 6-7). The Court ordered Defendants to serve their operative motion with all relevant filings on Plaintiff. [ECF No. 118]. The Court extended Plaintiff's deadline to oppose the motion to May 23, 2022 [ECF Nos. 118, 122], and warned Plaintiff, in bold, capitalized, and underlined text, that “ SHOULD PLAINTIFF FAIL TO FILE AN OPPOSITION TO DEFENDANTS' MOTION FOR SANCTIONS ON OR BEFORE MAY 23, 2022, THE COURT WILL CONSIDER DEFENDANTS' MOTION UNOPPOSED. ” [ECF No. 122]. To date, Plaintiff has not filed an opposition to Defendant's Motion to Dismiss for failure to prosecute and as discovery sanctions.
In support of their Motion to Dismiss [ECF No. 115], Defendants filed the declaration of Ana Maria Vizzo, counsel for Defendants, (Vizzo Decl. [ECF No. 116]) and a memorandum of law (Def. Br. [ECF No. 117]).
DISCUSSION
A plaintiff has a general obligation to prosecute his case diligently. If a plaintiff falls short of this obligation, a court may dismiss the action for failure to prosecute. See Fed.R.Civ.P. 41(b). The sanction of dismissal “may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.” Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994). In considering a Rule 41(b) dismissal, a district court must weigh the following five 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.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (internal citation omitted). “No one factor is dispositive” and the Court must weigh all five factors in determining whether dismissal is appropriate under Rule 41(b). United States ex rel. Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir. 2004).
The initial pretrial conference was held in this matter on March 9, 2021. [ECF No. 62]. Since that time, Plaintiff has failed to engage in the discovery process despite five extensions of his deadline to do so and multiple Court Orders that went unheeded and multiple warnings that were ignored. Plaintiff's intransience has resulted in a nearly sixteen-month delay in this case, during which time, the lead defendant initially sued by Plaintiff has died. See Smalls v. Bank of New York, No. 05 CIV 8474 (DC), 2008 WL 1883998, at *4-5 (S.D.N.Y Apr. 29, 2008) (dismissing case for failure to prosecute where plaintiffs ignored court orders, failed to respond to correspondence from defendant, and failed to contact the court for nearly two months); Lopez v. Cath. Charities of Archdiocese of New York, No. 00 CIV. 1247 (AGS), 2001 WL 50896, at *4 (S.D.N.Y. Jan. 22, 2001) (noting that “courts have granted [motions to dismiss for failure to prosecute] on delays of four months or less where circumstances warranted dismissal”).
Specifically, it has been almost fourteen months since Plaintiff originally agreed to mail the remaining outstanding authorizations and discovery responses by May 26, 2021. [ECF No. 78]. And it has been almost eleven months since he specifically represented to the Court that he would send the medical authorizations to Defendants by August 16, 2021. [ECF No. 89 at 8:2125]. It was not until December 2021, almost nine months after the initial pre-trial conference, that Defendants received any responses from Plaintiff. [ECF No. 101]. However, those responses were wholly inadequate. Plaintiff did not respond to several of the interrogatories and did not respond to any of the document requests. [ECF No. 101]. After their receipt of those inadequate discovery responses, Defendants advised Plaintiff of the deficient nature of those responses and requested that Plaintiff supplement them. [ECF No. 105]. At the Court's request, Defendants even provided Plaintiff with another copy of their interrogatories and document requests. [ECF No. 105]. Despite this, Plaintiff has still not responded to Defendants' discovery requests despite numerous orders directing him to do so. [See, e.g., ECF Nos. 81, 88, 93, 103].
Moreover, throughout this process, Plaintiff failed to appear for meet-and-confers with Defendants on four separate occasions. [ECF Nos. 79, 84, 87, 106]. In one of those instances, the meet-and-confer was specifically ordered by the Court. [ECF No. 81]. Even setting aside Plaintiff's refusal to appear for the post-fact discovery conference, for which Plaintiff offers an excuse [see ECF No. 114], Plaintiff has demonstrated a pattern of indifference to his discovery obligations in this case.
Plaintiff's repeated failure to comply with or respond to Court Orders or take any other action on his own initiative to prosecute the case is even more concerning where he has been repeatedly warned of the consequences of such inaction. In the Court's Case Management Plan and Scheduling Order, the Court specifically warned the parties, in bold text, that “[f]ailure to comply with the deadlines set forth herein may result in sanctions, including preclusion at trial of information not provided or dismissal of claims or defenses.” [ECF No. 63]. As Plaintiff's disregard for his discovery obligations became clear, the Court repeatedly warned him, on at least four separate occasions, each time in bold, capitalized, and underlined text, that further noncompliance with discovery obligations may result in sanctions, including dismissal of the case. [ECF Nos. 81, 88, 93, 103]. At the status conference on August 13, 2021, the Court specifically warned Plaintiff, that if he did not comply with his discovery obligations, it may result in the dismissal of this case. [ECF No. 89 at 11:22-12:1]. Plaintiff represented to the Court that he understood that obligation. [ECF No. 89 at 12:2-4]. Nonetheless, Plaintiff has continued to disregard his discovery obligations.
The Court's interest in managing its docket efficiently also outweighs any interest of Plaintiff in keeping this case open. Plaintiff has made no attempt to prosecute his case on the merits and due to Plaintiff's inaction, the Court has issued numerous orders and held multiple hearings in order to cajole Plaintiff into prosecuting his own case. See, e.g., Bell v. Carey, No. 18CIV2846PAEOTW, 2022 WL 558144, at *3 (S.D.N.Y. Feb. 24, 2022) (“Virtually no progress had been made in the three years during which this Court has presided over it-again, in spite of Judge Wang's patient grants of requests to extend filing deadlines and admonitions that the case could be dismissed if progress remained sluggish.”); Komatsu v. City of New York, No. 20CV10942VECRWL, 2022 WL 1446545, at *10 (S.D.N.Y. Apr. 21, 2022), report and recommendation adopted, No. 20-CV-10942 (VEC), 2022 WL 2188170 (S.D.N.Y. June 17, 2022) (“The Court has afforded Plaintiff ample opportunities to fulfill his discovery obligations and comply with the Court's orders requiring him to provide the necessary HIPAA authorization. He failed to comply each time.”).
Finally, the Court has considered lesser sanctions and granted five extensions in an effort to encourage Plaintiff to comply with his obligations, but at this point there is nothing in the record to suggest that a lesser sanction than dismissal will suffice to address the plaintiff's failure to cooperate in discovery and to prosecute his case. See Singleton v. City of New York, No. 14-cv-9355 (DLC), 2015 WL 9581781, at *2 (S.D.N.Y. Dec. 30, 2015); see also Southridge Partners II, LP v. SND Auto Grp., Inc., No. 3:17-cv-1925(KAD), 2020 WL 5074296, at *3 (D. Conn. Aug. 27, 2020) (concluding that “no lesser sanction will suffice given [plaintiff's] apparent abandonment of any effort to prosecute its claims and failure to communicate to the Court a contrary intention”). However, under the circumstances, the lesser sanction of dismissal without prejudice (rather than with prejudice) would be appropriate in order to strike the appropriate balance between the right to due process and the need to manage the Court's docket and avoid prejudice to Defendants by keeping this lawsuit open with no activity. Amoroso v. County of Suffolk, No. 08-CV-826 (JFB)(ETB), 2010 WL 2985864, at *3 (E.D.N.Y. July 21, 2010); see also Barker v. City of New York, No. 19-cv-2582 (JGK), 2020 WL 589048, at *2 (S.D.N.Y. Feb. 5, 2020).
The Court is mindful of Plaintiff's pro se status. The Court is also mindful that, at times, Plaintiff had legitimate excuses for missing deadlines, including that he had to be hospitalized on one occasion for an infection [ECF No. 89 at 4:23-5:2], and that there have been occasional mail issues at Elmira Correctional Facility [ECF No. 92]. However, Defendants and the Court have been more than accommodating to Plaintiff. The Court has extended the fact discovery deadline five times and afforded Plaintiff over sixteen months to allow him to meet his most basic discovery obligations. Defendants have attempted numerous meet-and-confers with Plaintiff to move his own case forward and yet he failed to appear at several of those meetings. On one occasion, when Plaintiff was having difficulty receiving his mail, Defendants made the effort to seek and received approval from Elmira Correctional Facility, on a one-time basis, to email the interrogatories and document requests to Plaintiff's guidance counselor, to then be hand-delivered to Plaintiff. [ECF No. 92]. Though the Court and Defendants have been accommodating, “[t]his case cannot proceed without the plaintiff's prosecution of it and his availability and willingness to respond to discovery requests.” Ortega v. Mutt, No. 14-CV-09703 (JGK), 2017 WL 1133429, at *2 (S.D.N.Y. Mar. 24, 2017) (citation omitted). Accordingly, the Court grants Defendants' Motion to Dismiss this case.
The Court also notes that in April 2021, Defendants advised the Court that Dr. Ramos had passed away. [ECF No. 68]. Defendants advised the Court that as soon as they identified the representative of the estate for Dr. Ramos, they would inform the Court and Plaintiff. [ECF No. 68]. Several months later, Defendants filed a statement of death for Dr. Ramos and advised the Court that pursuant to an investigation of the Surrogate Court proceedings, there has not been a representative appointed for Dr. Ramos's Estate. [ECF No. 97]. Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, “if a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” More than 90 days has lapsed since Defendants filed the Statement of Death for Dr. Ramos and no motion for substitution has been made. Accordingly, dismissal of this action against the decedent Dr. Ramos is mandatory pursuant to Rule 25(a)(1).
CONCLUSION
For the reasons stated herein, Defendants Motion to Dismiss Plaintiff's Amended Complaint for failure to prosecute and for failure to comply with the Court's orders is GRANTED and the Amended Complaint is DISMISSED without prejudice.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue).
The Clerk of Court is respectfully requested to mail a copy of this Order to the pro se Plaintiff at the address of record.
The Clerk of Court is respectfully requested to terminate docket entry 115 and to close this case.
SO ORDERED.