Opinion
9:13-CV-0030 (FJS/TWD)
07-06-2015
HERMAN CRUZ, Plaintiff, v. M. GROSSO, Defendant.
APPEARANCES: HERMAN CRUZ, 86-C-0468 Plaintiff pro se Sullivan Correctional Facility Box 116 Fallsburg, New York 12733 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendant Syracuse Regional Office 615 Erie Boulevard West, Suite 102 Syracuse, New York 13204-2465 OF COUNSEL: KEVIN M. HAYDEN, ESQ. Assistant Attorney General
APPEARANCES: HERMAN CRUZ, 86-C-0468
Plaintiff pro se
Sullivan Correctional Facility
Box 116
Fallsburg, New York 12733
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
Syracuse Regional Office
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204-2465
OF COUNSEL: KEVIN M. HAYDEN, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Frederick J. Scullin, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently pending before the Court is Defendant's motion pursuant to Federal Rule of Civil Procedure 37(d) to dismiss the complaint as a sanction for Plaintiff's failure to submit to a deposition, or, alternatively, to dismiss the complaint as a sanction pursuant to Federal Rule of Civil Procedure 11 for making a sworn material misrepresentation to the Court. (Dkt. No. 113.) Plaintiff has made no official response to the motion, but has sent the Court several letters and motions. (Dkt. Nos. 116, 117, 119, 120.) For the reasons that follow, I recommend that the complaint be dismissed.
I. BACKGROUND
In this action, Plaintiff Herman Cruz claims that Defendant M. Grosso failed to protect him, filed a false misbehavior report, made him subject to unconstitutional conditions of confinement, violated his right to due process, and unlawfully retaliated against him. (Dkt. No. 1.)
In the complaint, Plaintiff only reported filing one previous lawsuit in any state or federal court relating to his imprisonment. (Dkt. No. 1 at 3-4.) However, Plaintiff in fact filed at least eight additional actions and one petition seeking a writ of habeas corpus before filing this action. See Cruz v. Traynor, No. 12-CV-1454 (N.D.N.Y. filed Sept. 21, 2012) (dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915(A)(b)); Cruz v. Tichenor, No. 08-CV-0591 (N.D.N.Y. filed June 5, 2008) (dismissed for failure to prosecute); Cruz v. Lashway, No. 06-CV-0867 (N.D.N.Y. filed July 17, 2006) (dismissed on summary judgment); Cruz v. Church, No. 05-CV-1067 (N.D.N.Y. filed Aug. 25, 2005) (no-cause jury verdict); Cruz v. Thompson, No. 04-CV-1497 (N.D.N.Y. filed Dec. 29, 2004) (voluntarily dismissed); Cruz v. Hillman, No. 01-CV-4169 (S.D.N.Y. filed May 17, 2001) (settled); Cruz v. Wead, No. 97-CV-0846 (W.D.N.Y. filed Oct. 23, 1997) (dismissed on summary judgment); Cruz v. Senkowski, No. 90-CV-0289 (W.D.N.Y. filing date not available electronically) (petition for writ of habeas corpus dismissed for failure to prosecute). Plaintiff has under-reported his litigation history in at least two previous actions. In Cruz v. Zwart, filed after this case, and Cruz v. Traynor, Plaintiff reported filing only Cruz v. Church.
On March 22, 2013, the Court issued an Order granting Plaintiff's in forma pauperis ("IFP") application, but dismissed all claims against Defendant except for the retaliation claim. (Dkt. No. 8 at 16-17.) On June 4, 2014, the Court issued a Mandatory Pretrial Discovery and Scheduling Order. (Dkt. No. 59.) In that Order, the Court granted Defendant leave to take Plaintiff's deposition. Id. at 4-5. The Order stated that:
Defense counsel shall provide plaintiff[] with notice of the date of the deposition in the form provided in Rule 30(b)(1) and such notice shall be deemed sufficient if the notice is mailed to plaintiff[] at least fifteen (15) days prior to the scheduled date for the deposition. The deposition may not commence until at least fifteen (15) days after defense counsel has filed a notice of compliance with [mandatory discovery].Id.
The Order also stated that:
disagreement with any directive of security staff at the correctional facility at which the deposition is scheduled is not a ground on which plaintiff(s) may refuse to answer appropriate questions. The failure of the plaintiff(s) to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of the action pursuant to Fed. R. Civ. P. 37.(Dkt. No. 59 at 5.)
On August 12, 2014, defense counsel advised the Court that "Defendant Grosso . . . served Rule 26 disclosures on today's date." (Dkt. No. 67 ¶ 6.) On November 13, 2014, Defendant served a deposition notice on Plaintiff. (Dkt. No. 92-1 at 5.) The deposition was scheduled for December 2, 2014, at Upstate Correctional Facility ("Upstate"). Id.
On November 18, 2014, Plaintiff wrote defense counsel a letter in response to the notice of deposition stating that "it [would not] happen" because he believed that he would be released from Upstate before the deposition. (Dkt. No. 92-1 at 1-4.) In the correspondence, Plaintiff used such language as "your devil ass" and "cocksucker" when addressing defense counsel. Id. at 2. In response, Defendant moved to stay discovery, requested that the Court issue an "immediate order to show cause why sanctions should not be issued," and moved to dismiss. (Dkt. No. 92.) Alternatively, defense counsel requested the Court to issue an Order directing Plaintiff to appear for the deposition scheduled on December 2, 2014. Id.
The Court granted Defendant's request in part and denied it in part. (Dkt. No. 94.) Specifically, the Court denied the motion to show cause without prejudice but granted the motion seeking to compel Plaintiff to attend a deposition by stating that "Defendant is to timely serve an amended notice of deposition requiring Plaintiff's deposition to occur at a date and time between 1/2/2015 and 1/30/2015. Plaintiff's failure to appear for the re-noticed deposition may result in sanctions including dismissal of the action." Id.
Plaintiff was transferred to Clinton Correctional Facility ("Clinton") around December 5, 2014. (Dkt. No. 100.) On December 12, 2014, defense counsel complied with the Court Order and served an Amended Notice of Deposition to conduct Plaintiff's deposition on January 15, 2015. (Dkt. No. 102.) Plaintiff again responded that he would not submit to a deposition. (Dkt. Nos. 107, 108.)
On January 9, 2015, the Court issued an Order stating that Plaintiff's failure to appear for the scheduled deposition would result in sanctions, including the possible dismissal of his complaint. (Dkt. No. 109.) Due to a scheduling conflict, defense counsel changed the date of the deposition to January 16, 2015. (Dkt. No. 110.) Defense counsel served a second Amended Notice of Deposition on Plaintiff on January 14, 2015. (Dkt. No. 110-1.) The amended notice, along with a letter warning Plaintiff that his failure to appear and cooperate would result in a motion to dismiss and a motion for costs, was personally served on Plaintiff by Lieutenant Snow at Clinton. Id.
Plaintiff appeared for the video deposition on January 16, 2015. (Dkt. No. 113-4.) However, Plaintiff refused to be sworn in or answer any questions, stating "you're not going to depose me. Whatever the repercussions are in the case, I'll deal with that." Id. at 5. Defense counsel warned Plaintiff that Defendant would move to dismiss the complaint and seek costs. Id. at 6-7. Plaintiff refused to speak and the deposition was terminated. Id. at 7. Defendant incurred a charge of $170.85 for the deposition. (Dkt. No. 113-5.)
Citations to page numbers in Court documents refer to the page numbers assigned by the Court's electronic filing system.
On January 20, 2015, Defendant reported these facts to the Court in a status report. (Dkt. No. 111.) Plaintiff responded by filing a letter dated January 23, 2015, stating that he would not submit to a deposition. (Dkt. No. 112.)
Defendant now moves pursuant to Federal Rule of Civil Procedure 37(d) to dismiss Plaintiff's complaint as a sanction for Plaintiff's failure to submit to a deposition, or, alternatively, to dismiss the complaint as a sanction pursuant to Federal Rule of Civil Procedure 11 for making a sworn material misrepresentation to the Court. (Dkt. No. 113.) Plaintiff has made no official response to the motion but has sent the Court several letters and motions. (Dkt. Nos. 116, 117, 119, 120.)
II. ANALYSIS
A. Plaintiff's complaint should be dismissed under Rule 37(d) because, after an "analysis of the full record," Plaintiff's failure to submit to a deposition was "willful" and in "bad faith."
Defendant moves under Federal Rule of Civil Procedure 37(d) to dismiss the complaint as a sanction for Plaintiff's failure to appear at his properly noticed deposition. (Dkt. No. 113.) For the reasons discussed below, I find that dismissal of the complaint is warranted on this ground.
Under Rule 37(d), "[t]he Court where the action is pending may, on motion, order sanctions if [] a party . . . fails . . . to appear for that person's deposition." Fed. R. Civ. P. 37(d). Sanctions may include any of those listed in Rule 37(b)(2), including "dismissing the action or proceeding in whole or in part." Fed. R. Civ. P. 37(b)(2)(A)(v).
The term "appear" as used in Rule 37(d) is "strictly construed in this Circuit and only occurs where a deponent literally fails to show up for a deposition session." Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986). Where a deponent "physically appears at a deposition but refuses to be sworn and testify, then the proper procedure is to first obtain an order from the court, as authorized by Rule 37(a), directing him to be sworn and testify." Id. If a party then refuses to obey the court's order, Rule 37 "authorizes the court to impose . . . drastic sanction[s] [such as dismissal]." Sec. & Exch. Comm'n v. Research Automation Corp., 521 F.2d 585, 589 (2d Cir. 1975). "The imposition of a Rule 37(d) dismissal must be based on an analysis of the full record of the case," and where a "litigant's failure to comply with proper discovery constitutes willfulness, bad faith, or gross negligence," dismissal may still be warranted even absent a clear 37(a) motion to compel a party to testify at a deposition. See Plevy v. Scully, 89 F.R.D. 665, 667 (W.D.N.Y. 1981).
Here, defense counsel has requested the Court to compel Plaintiff to submit to a deposition. (Dkt. No. 92.) On two occasions the Court has ordered Plaintiff to comply with discovery and submit to a deposition, and on both of those occasions Plaintiff has refused to do so. (Dkt. Nos. 94, 109.) Though it is unclear whether Defendant, despite these multiple court orders, technically satisfied the obligation under Rule 37(a) to obtain an order directing that Plaintiff be compelled to be sworn in and testify, Plaintiff's noncompliance with Court orders amounts to willfulness or bad faith that justifies dismissal of the complaint.
Plaintiff refused to submit to the initially scheduled deposition because he did not want to be deposed until after he had been transferred to a new correctional facility. (Dkt No. 92-1.) In his refusal letter, he used such language as "your devil ass" and "cocksucker" when addressing defense counsel. Id. at 2. In response, Defendant requested that the Court issue an Order to show cause why sanctions should not be issued, moved to dismiss the complaint, or requested that the Court issue an Order directing Plaintiff to appear for the deposition. (Dkt. No. 92.) The Court granted the motion seeking to compel Plaintiff to attend a deposition, and notified Plaintiff that his failure to appear for the subsequently scheduled deposition could result in sanctions, including dismissal of the action. (Dkt. No. 94.)
Once Plaintiff was transferred to Clinton, Defendant served an Amended Notice of Deposition to conduct Plaintiff's deposition in January. (Dkt. No. 102.) Plaintiff again refused to submit to the second scheduled deposition but gave no justification why. (Dkt. Nos. 107, 108.) In response, the Court issued a second Order stating that Plaintiff's failure to appear for a deposition would result in sanctions, including the possible dismissal of his complaint. (Dkt. No. 109.)
Although Plaintiff appeared for the subsequently scheduled deposition, he refused to be sworn in or answer any questions, stating, "you're not going to depose me. Whatever the repercussions are in the case, I'll deal with that." (Dkt. No. 113-4 at 5.) When Defendant reported these facts to the Court in a status report, Plaintiff responded by filing a letter, again refusing to submit to a deposition. (Dkt. Nos. 111, 112.)
Given the aforementioned facts, the Court finds that Plaintiff was willful. Apart from the initial deposition, Plaintiff has provided no reason why he refuses to be deposed. He did not seek to adjourn the deposition, but instead refused outright to appear. When he did finally appear after the second Court warning, he refused to speak. All of his actions manifest an intent to willfully delay the proceeding. Plaintiff was also aware of the potential consequences of his actions. He has been warned twice by the Court, and said himself he would "deal" with "whatever repercussions" would result from refusing to submit to the deposition. Furthermore, other sanctions normally available under Rule 37 are inadequate in Plaintiff's case. See Plevy, 89 F.R.D. 665 at 667 (finding that monetary sanctions, due to Plaintiff's "indigency and incarceration," would be a "hollow gesture"). Accordingly, based on an "analysis of the full record of the case," and cognizant of Plaintiff's status as a pro se litigant, his failure to submit to a deposition warrants dismissal of the action.
B. Plaintiff's complaint should not be dismissed under Rule 11 because of the "special solicitude" extended to pro se plaintiffs.
Defendant argues that Plaintiff's complaint should be dismissed pursuant to Federal Rule of Civil Procedure 11 for "making a sworn material misrepresentation the Court." (Dkt. No. 113- 6 at 10.) Specifically, as noted above, in the complaint, Plaintiff only reported one prior lawsuit when he has in fact initiated at least eight more lawsuits and has made such material misrepresentations in other cases before this Court. For the reasons discussed below, I find that dismissal of the complaint is inadvisable on these grounds.
Rule 11 requires that a motion for sanctions "be made separately from any other motion." Fed. R. Civ. P. 11(c)(2). Furthermore, once the motion is served, "it must not be filed or presented to the court if the challenged paper, claim, defense, contention, or denial is withdraw or appropriately corrected within 21 days after service or within another time the court sets." Id. This so-called "safe harbor provision" permits the party to be sanctioned "the opportunity to withdraw the potentially offending statements before the sanctions motion is officially filed." Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 389 (2d Cir. 2003). A motion that fails to satisfy the safe-harbor provision must be denied. See Bryant v. Britt, 420 F.3d 161, 163 n.2 (2d Cir. 2005) (finding that because movant "failed to comply with Rule 11(c)[(2)]," there was "no error in the district court's decision" to deny sanctions).
Here, the docket reflects the Defendant failed to comply with the twenty-one day safe harbor provision. Therefore, dismissal of Plaintiff's complaint pursuant to Rule 11 is unwarranted. However, courts may still impose sanctions sua sponte "after notice and a reasonable opportunity to respond." Fed. R. Civ. P. 11(c)(1); see also Fed. R. Civ. P. 11(c)(3) ("On its own, the court may order a[] . . . party to show cause why conduct specifically described in the order has not violated Rule 11(b).") The Second Circuit has held that in order to impose sanctions sua sponte, the court must find that the party to be sanctioned acted with subjective bad faith. In re Pennie & Edmonds LLP, 323 F.3d 86, 90-92 (2d Cir. 2003). Bad faith can be inferred when a party's actions are "entirely without color" and are motivated by "improper purposes" such as harassment or delay. Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34, 38 (2d Cir. 1995). Furthermore, "pro se litigants, like any others, are subject to the strictures of Rule 11, and may properly be sanctioned for making material misrepresentations to the court." Dolberry v. Jakob, No. 9:11-CV-1018 (DNH/DEP), 2014 U.S. Dist. LEXIS 45457, at *17, 2014 WL 1292225, at *5 (N.D.N.Y. Feb. 28, 2014). Such sanctions could include dismissal of the plaintiff's complaint should the court find that a party acted in bad faith when he made material misrepresentations to the court. Id. However, this district has been reluctant to dismiss Plaintiff's complaints on these grounds "in light of the Second Circuit's oft-repeated admonishment to extend special solicitude to pro se litigants." See Cruz v. Zwart, No. 9:13-CV-1287 (TJM/DEP), 2014 WL 4771664, at *6 n.4 (N.D.N.Y. Sept. 24, 2014).
Lexis and Westlaw list different dates for this decision. The Court has used the date listed by Lexis, which reflects the date of the report-recommendation containing the quoted langauge.
The Court will provide Plaintiff with a copy of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
The report-recommendation containing the quoted language is not available on Lexis. --------
Here, Plaintiff made a material misrepresentation to the Court when in the complaint he disclosed only one prior lawsuit when he had in fact initiated at least eight more lawsuits, a misrepresentation he has made to the Court on other occasions. See Cruz v. Traynor, No. 12-CV-1454 (N.D.N.Y. filed Sept. 21, 2012) (dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915(A)(b)); Cruz v. Tichenor, No. 08-CV-0591 (N.D.N.Y. filed June 5, 2008) (dismissed for failure to prosecute); Cruz v. Lashway, No. 06-CV-0867 (N.D.N.Y. filed July 17, 2006) (dismissed on summary judgment); Cruz v. Church, No. 05-CV-1067 (N.D.N.Y. filed Aug. 25, 2005) (no-cause jury verdict); Cruz v. Thompson, No. 04-CV-1497 (N.D.N.Y. filed Dec. 29, 2004) (voluntarily dismissed); Cruz v. Hillman, No. 01-CV-4169 (S.D.N.Y. filed May 17, 2001) (settled); Cruz v. Wead, No. 97-CV-0846 (W.D.N.Y. filed Oct. 23, 1997) (dismissed on summary judgment); Cruz v. Senkowski, No. 90-CV-0289 (W.D.N.Y. filing date not available electronically) (petition for writ of habeas corpus dismissed for failure to prosecute).
Given that this is not the first time Plaintiff has made such a misrepresentation, the Court could reasonably find that Plaintiff acted in bad faith. Therefore, dismissal of the complaint under Rule 11 could potentially be warranted. However, in light of the special solicitude extended to pro se litigants in this Circuit, I recommend that the Court not dismiss the complaint pursuant to Rule 11. See Toliver v. Fischer, No. 9:12-CV-77 (MAD/ATB), 2014 U.S. Dist. LEXIS 12744, at *3-4, 2014 WL 411569, at *1 (N.D.N.Y. Feb. 3, 2014) (finding that "plaintiff's failure to list all of his prior lawsuits [was not] so unreasonable as to require the imposition of sanctions [pursuant to Rule 11]").
III. CONCLUSION
Weighing the aforementioned facts with the special solicitude that must be granted to pro se litigants, dismissal is warranted in this case under Rule 37 of the Federal Rules of Civil Procedure, but not under Rule 11. Therefore, I recommend that the Court dismiss Plaintiff's complaint without prejudice.
ACCORDINGLY, it is
RECOMMENDED that the Court GRANT Defendant's motion to dismiss (Dkt. No. 113) without prejudice; and it is further
ORDERED that the Clerk provide Plaintiff with copies of Dolberry v. Jakob, No. 11-CV-1018, 2014 U.S. Dist. LEXIS 41584, 2014 WL 1292225 (N.D.N.Y. Mar. 28, 2014) and Toliver v. Fischer, No. 9:12-CV-77 (MAD/ATB), 2014 U.S. Dist. LEXIS 12744, 2014 WL 411569 (N.D.N.Y. Feb. 3, 2014).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: July 6, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge