Opinion
02 Civ. 1218 (KNF).
March 1, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
Kevin Brown ("Brown"), proceeding pro se, brings this action against Dr. Gheorge Ionescu ("Dr. Ionescu"), pursuant to 42 U.S.C. § 1983, seeking injunctive relief and damages for a violation of his Fourteenth Amendment substantive due process right to be free from unwanted medical treatment, and for common-law battery. Before the Court is the defendant's motion, made pursuant to Fed.R.Civ.P. 41(b) and 37(b)(2), to dismiss the plaintiff's complaint. Dr. Ionescu contends he seeks relief, through this motion, because of the plaintiff's repeated failures to comply with the Court's orders. The defendant also seeks, pursuant to Fed.R.Civ.P. 37(b)(2), the attorney fees and costs he incurred in making the instant motion. The plaintiff opposes the motion; it is addressed below.
II. BACKGROUND
While he was a prisoner at New York State's Green Haven Correctional Facility ("GHCF"), Brown suffered with urological problems. In or about July 1999, Brown was referred to Dr. Ionescu for treatment of a kidney stone and removal of an infected ureteral stent that had become encrusted to Brown's ureteral wall. Dr. Ionescu removed part of the stent in March 2000, because of its encrusted state, and implanted another stent to facilitate healing of the ureter. In April 2000, Dr. Ionescu removed the remainder of the encrusted stent from Brown. During a March 2001 examination of Brown, Dr. Ionescu determined that Brown required additional surgery to remove kidney stones and the stent Dr. Ionescu had placed in Brown in 2000, which had become infected. Dr. Ionescu also determined to implant a new stent in Brown to aid in the removal of the kidney stones.
Brown contends he did not consent to Dr. Ionescu's performing any surgical procedure on him that would require placing another stent in his body. Brown also asserts he was assured by Dr. Ionescu that another stent would not be necessary. However, Dr. Ionescu placed another stent in Brown's ureter. He planned to remove that stent from Brown on April 19, 2001. When Brown met with Dr. Ionescu on that date, he refused to allow the stent to be removed.
In June 2001, Brown commenced this action, pro se, while he was still incarcerated at GHCF. After Dr. Ionescu answered Brown's complaint, each party filed a motion for summary judgment. In September 2004, the district judge to whom this matter was then assigned granted so much of the defendant's motion for summary judgment as pertained to Brown's Eighth Amendment claim, that Dr. Ionescu exhibited deliberate indifference to his serious medical needs, and denied the remaining grounds upon which each party sought judgment as a matter of law. Consequently, all that remains to be tried in this action is the plaintiff's Fourteenth Amendment claim, that Dr. Ionescu violated Brown's liberty interest in being free from unwanted medical treatment, and his common-law battery claim.
On May 10, 2006, the Court issued an order, following a telephonic conference with counsel to the parties, directing them to: (a) revise the parties' joint pretrial order; (b) advise the Court of the date on which they would submit opinion witness material to allow the Court to perform its gatekeeping responsibility, as described in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993); (c) advise the Court of the parties' interest in having a settlement conference scheduled; and (d) submit to the Court proposed voir dire questions and proposed requests to charge for the trial of the action, which was scheduled to commence on October 16, 2006. On May 19, 2006, the date by which the parties were to submit their joint pretrial order to the Court, the plaintiff's attorney advised the Court, through a writing, that the parties were revising their joint pretrial order and would submit it to the Court shortly. He also advised the Court that the parties had agreed to submit to the Court, on or before July 7, 2006, any appropriate opinion witness data and that the parties would advise the Court, on or before July 7, 2006, of their interest in participating in a settlement conference.
In December 2004, Brown engaged counsel.
On July 21, 2006, the parties made a joint request for additional time to submit Daubert-related material to the Court because the plaintiff was experiencing difficulties in obtaining his medical records. On July 31, 2006, the Court ordered the parties to submit to it, on or before August 16, 2006, the following: (i) their respective Daubert-related materials; (ii) any proposed voir dire questions; and (iii) any proposed requests to charge. The Court informed the parties that no additional application to enlarge the time for making those submissions would be entertained. The defendant complied with the Court's order and submitted his Daubert-related material to the Court on August 3, 2006. On August 16, 2006, the plaintiff's attorney made an application to be relieved of the obligation of continuing to represent Brown. However, none of the submissions expected by the Court from the plaintiff, and described above, was made.
On September 26, 2006, the parties attended a pretrial conference. As a result of the discussion had during that conference, the Court granted the request of Brown's attorney to be relieved of the obligation of continuing to represent Brown, and postponed commencement of the trial. On October 11, 2006, the Court issued an order directing the plaintiff, who was then representing himself, to submit to the Court, on or before November 30, 2006: (1) "such materials as he [deemed] necessary for the Court to [fulfill its Daubert] gatekeeping responsibility;" and (2) any proposed requests to charge and voir dire questions he wanted the Court to consider. The Court fixed January 8, 2007, as the date for the trial to commence.
In a December 4, 2006 writing to the Court, the defendant sought permission to file the instant motion. Thereafter, on December 12, 2006, a pretrial status conference was held with the parties. During that conference, the plaintiff informed the Court that he had been communicating with an attorney who had expressed interest in reviewing the plaintiff's records. The plaintiff asked the Court to enlarge the time for him to comply with the Court's orders. Meanwhile, the defendant renewed his request to file a motion to dismiss, because of the plaintiff's failure to comply with the Court's orders.
The Court granted the defendant's request. In an order issued on December 14, 2006, the Court directed the plaintiff to advise any attorney whom he might engage, to file a notice of appearance with the Clerk of Court, on or before December 28, 2006. The order also set forth a briefing schedule for the defendant's motion. That schedule required: (1) the defendant to serve and file his motion, on or before December 21, 2006; (2) the plaintiff to serve and file his response to the motion, on or before January 11, 2007; and (3) the defendant to serve and file any reply, on or before January 23, 2007. In addition, the Court directed the plaintiff to respond to the defendant's motion himself, if he failed to engage counsel seasonably. The Court also reminded the plaintiff that any failure to comply with an order of the Court might result in the dismissal of his complaint.
On December 22, 2006, the Court received a letter from an attorney the plaintiff was attempting to retain. The attorney informed the Court of his interest in representing the plaintiff, and asked for additional time to file a notice of appearance because he wanted an opportunity to consult with a medical expert before undertaking to represent Brown. Accordingly, the attorney reported that Brown was scheduled to meet with a physician on January 4, 2007. However, on January 9, 2007, the same attorney informed the Court that he determined not to represent Brown and asked the Court, in light of the delay he caused, to permit the plaintiff to file a response to the defendant's motion to dismiss by January 18, 2007. The Court granted the request, and directed the defendant to file any reply by January 31, 2007.
On January 16, 2007, the plaintiff attempted to file his response to the defendant's motion to dismiss with the Pro Se Office for this judicial district. However, as of that date, the defendant's motion to dismiss, although served on the plaintiff, had not been filed with the Clerk of Court as required by the Court's order. The defendant's motion to dismiss was received by the Clerk of Court on January 23, 2007. However, by February 13, 2007, the motion to dismiss had not been recorded on the docket sheet maintained by the Clerk of Court for this action. Therefore, on February 13, 2007, the Court issued a new order directing the defendant to file his motion on or before February 19, 2007. Thereafter, the defendant resubmitted his motion to the Clerk of Court who, on February 15, 2007, noted its receipt on the case docket sheet.
III. DISCUSSION
Fed.R.Civ.P. 41(b) Dismissal
Fed.R.Civ.P. 41(b) provides, in pertinent part: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Dismissing an action pursuant to Fed.R.Civ.P. 41(b) "is a harsh remedy to be utilized only in extreme situations." Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir. 1972). Moreover, the Court must remain mindful of the fact that pro se litigants, such as Brown, "should be granted special leniency regarding procedural matters." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). However, "while pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
In determining whether to dismiss an action under Fed.R.Civ.P. 41(b), the courts in this circuit consider the following factors: (1) the duration of the plaintiff's failure(s) to comply with a court's order(s); (2) whether the plaintiff had been advised that an additional failure(s) to comply with a court order(s) would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the litigation; (4) the court's interest in managing its docket and the plaintiff's right to due process and a fair chance to be heard; and (5) the efficacy of imposing a sanction(s) less harsh than dismissal. See Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988).
a) Duration of Failure(s) to Comply
When analyzing the duration of a plaintiff's failure(s) to comply with a court order, two things must be considered: (a) whether the plaintiff is at fault for failing to comply; and (b) whether the plaintiff's failure(s) was of significant duration.See Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994).
The defendant contends that, by failing "to provide his expert witness response, request to charge and voir dire," Brown failed to comply with three court orders dated: May 10, 2006, July 31, 2006 and October 11, 2006. However, the record shows that on May 19, 2006, the plaintiff complied with the May 10, 2006 order, except for that portion of the order that did not require the parties to take action prior to August 4, 2006. The record also shows that the plaintiff's attorney advised the Court, in accordance with the May 10, 2006 order, that the parties: (a) were revising their joint pretrial order; (b) had agreed to submit any Daubert-related materials to the Court on or before July 7, 2006; and (c) would, on or before July 7, 2006, advise the Court of their interest in having a settlement conference scheduled.
Brown failed to comply with the Court's July 31, 2006 and October 11, 2006 orders, but these failures were not caused solely by the plaintiff's actions. On August 16, 2006, Brown's attorney made an application to the Court, pursuant to Local Civil Rule 1.4 of this court, to be relieved of the obligation of continuing to represent the plaintiff. That application was made on the same date that the plaintiff's Daubert-related materials, proposed voir dire questions and proposed requests to charge were due to the Court. On September 26, 2006, the attorney's application to withdraw as counsel to Brown was granted by the Court.
The Court is mindful that, generally, absent extraordinary circumstances, a plaintiff is not excused from the consequences of his attorney's acts or omissions, because the plaintiff voluntarily chose the attorney as his or her representative. See Link v. Wabash, 370 U.S. 626, 633-34, 82 S. Ct. 1386, 1390 (1962); Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666-67 (2d Cir. 1980). However, in the case at bar, the Court has considered the long history of this litigation and the many conferences it has had with the parties as the case was being prepared for trial. The Court's intimate knowledge of this case enables it to conclude that the plaintiff has not been dilatory with respect to his approach to this litigation. For example, after his attorney was allowed to withdraw, the plaintiff attempted to engage different counsel. During a December 12, 2006 pretrial status conference, Brown advised the Court that an attorney he had attempted to engage informed him on November 30, 2006, that he would not be able to represent him. Since that time, Brown has endeavored to engage other counsel. The plaintiff's attempts to engage other counsel are evidenced in the record by correspondence the Court received dated December 22, 2006, and January 9, 2007, from an attorney who was exploring the prospect of representing Brown. In fact, after deciding not to represent the plaintiff and, in recognition of the delay the attorney realized he had caused to the progress of the litigation, he asked the Court, on Brown's behalf, to extend the time for Brown to file a response to the defendant's motion to dismiss. Once that request was granted, Brown responded to the motion promptly.
The plaintiff's failures to comply with the Court's orders have not been of significant duration — given the history of this litigation. Moreover, some of the delays in moving this case toward trial have been caused by the defendant. Therefore, the Court finds that this factor, the duration of Brown's failure(s) to comply with court orders, militates against dismissing the complaint.
b) Notice of the Risk of Dismissal
The defendant contends the Court "admonished plaintiff in [its] order of December 12, 2006 that dismissal may result for failing to comply with any order of the Court." However, after receiving this admonition, Brown complied with the Court's December 12, 2006 order, by presenting timely, to the Pro Se Office, for filing, his response to the defendant's motion to dismiss. The Court's December 12, 2006 admonition to the plaintiff was the first and only warning to him that any future failure by him to comply with a court order might result in the dismissal of his complaint. The defendant appears to construe the warning as having retroactive effect, since he contends the December 12, 2006 order alerted the plaintiff that his prior failure(s) to comply with court orders could form the basis for a dismissal of his complaint, notwithstanding the fact that Brown had never been so notified. In any event, the December 12, 2006 order cautioned Brown that a further failure(s) to comply with a court order(s) could be detrimental to his ability to continue to prosecute this action. See Alvarez, 839 F.2d at 932.
c) Prejudice to the Defendant
The defendant contends that, as a result of Brown's conduct in failing to comply with court orders, he has been: (a) prejudiced severely and hampered in "[his] ability to obtain information in a medical malpractice case necessary to formulate a defensive position;" (b) unable to determine whether this is a matter that should proceed to trial;" and (c) forced to "expend money and time defending an action which may have absolutely no merit to it." The defendant also contends the "plaintiff's claims, which sound in medical malpractice, must be supported by a medical expert."
For his part, Brown explains in his response to the defendant's motion that his claim is not one of medical malpractice, but is a claim of battery. Therefore, according to Brown, no medical expert testimony will be needed at the trial to show that he did not consent to the surgical procedure at issue in this action.
Based on the record before it, the Court is not persuaded that the defendant has been prejudiced by the plaintiff's failure to comply with court orders directing him, to submit to the Court,inter alia, such information concerning prospective expert witnesses as he deemed appropriate, to enable the Court to perform its Daubert gatekeeping function. While it is correct that in New York, a medical malpractice action premised on a lack of informed consent requires a plaintiff to present evidence from a medical expert, see, e.g., New York Public Health Law § 2805-d; New York Civil Procedure Law and Rules § 4401-a, the defendant has known since September 2004, when the previously assigned judicial officer resolved the parties' respective motions for summary judgment, that Brown's "lack of informed consent" cause of action was no longer to be tried and that the only viable common-law cause of action that remained to be tried was battery.
Under New York law, expert medical evidence is not required to establish the elements of a cause of action for battery, which are that a person "intentionally touches another person, without that person's consent, and causes an offensive bodily contact."Armstrong ex rel v. Brookdale Univ., 425 F.3d 126, 134 (2d Cir. 2005). A battery cause of action is distinct from a cause of action for medical malpractice that is based on a lack of informed consent. This is so because battery occurs, in a medical context, when a physician's patient "gives no consent" to the complained of touching whereas "an informed consent violation occurs when the doctor obtains consent without giving the patient appropriate information concerning risks and alternatives." Id.
In the instant case, Brown alleges the defendant placed a stent in his body, intentionally, without his consent: battery. As noted earlier, under New York law, Brown is not required to elicit testimony from a medical expert at trial to prove his cause of action for battery, and he stated explicitly, in his response to the instant motion, that he does not intend to offer any expert testimony at the trial.
If, as appears to be the case, Brown determined that he need not submit Daubert-related material to the Court because he did not need to offer opinion evidence at the trial, he cannot be faulted if the defendant misapprehended the nature of the action he must defend against and, as a result, expended resources unnecessarily. Dismissal of the complaint, based on this factor, is not warranted.
d) Balancing the Court's Docket and the Plaintiff's Due Process Interests
The plaintiff's failure to comply with two court orders is not an omission that impacted greatly on the Court's ability to manage its docket. The trial of this action did not commence as planned, in January 2007. However, the Court was advised that the defendant could not proceed to trial at that time because of a medical condition that he had to address. Therefore, regardless of Brown's compliance or lack thereof with court orders, the trial commencement date would have been postponed. Consequently, this factor does not support dismissal.
e) Efficacy of Lesser Sanctions
The relevant inquiry with respect to this factor is whether a sanction(s) less harsh than dismissal would remedy any prejudice the defendant suffered as a result of the plaintiff's failure to comply with court orders. See U.S. ex rel Drake v. Norden Systems, Inc., 375 F.3d 248, 257 (2d Cir. 2004). However, since the Court has found the defendant was not prejudiced by Brown's conduct, it does not need to consider this factor.
Failure to Comply with Court Orders under Rule 37(b)(2)
Fed.R.Civ.P. 37 grants a court broad discretion and authority to impose sanctions upon a party to a litigation that has failed to fulfill its discovery obligations. See Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 113 (2d Cir. 2002). A court may, among other things, dismiss an action "[i]f a party . . . fails to obey an order to provide or permit discovery." Fed.R.Civ.P. 37(b)(2). In the instant case, Brown did not make expert disclosures to the defendant, as he was required to do. However, as discussed above, Brown determined that an expert witness was not needed to establish the elements of the claims that remained to be tried and, consequently, he had no expert disclosure to make. In such a circumstance, no basis exists for dismissing Brown's complaint under Fed.R.Civ.P. 37. Such a dismissal is warranted when a litigant fails to obey a court's discovery order(s) "willfully, in bad faith, or through fault." John B. Hull, Inc. v. Waterbury Petroleum Products, 845 F.2d 1172, 1176-77 (2d Cir. 1988).
The Court has considered the defendant's request for an award of the costs and reasonable attorney fees he incurred in making this motion. Based on the facts and circumstances of this case, outlined above, such an award is not warranted.
IV. CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss the plaintiff's complaint, pursuant to Fed.R.Civ.P. 41(b) and 37(b)(2), and his requests for an award of the costs and attorney fees he incurred in making this motion, is denied.
SO ORDERED: