Opinion
9:21-CV-1202 (BKS/ML)
07-11-2023
SHARIF KING, Plaintiff, v. STEPHANIE DEMARS, Defendant.
SHARIF KING, Pro Se Plaintiff Five Points Correctional Facility. LETITIA A. JAMES, Attorney General for the State of New York Counsel for Defendant The Capitol. RACHAEL OUIMET, ESQ. Assistant Attorney General.
APPEARANCES:
SHARIF KING, Pro Se Plaintiff Five Points Correctional Facility.
LETITIA A. JAMES, Attorney General for the State of New York Counsel for Defendant The Capitol.
OF COUNSEL:
RACHAEL OUIMET, ESQ. Assistant Attorney General.
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
Currently before the Court, in this civil rights action filed by Sharif King (“Plaintiff”) against Stephanie Demars (“Defendant”), is Defendant's motion to dismiss for failure to prosecute and for sanctions pursuant to Fed.R.Civ.P. 37 and 41. (Dkt. No. 52.) For the reasons set forth below, I recommend that Defendant's motion be granted in part and denied in part.
I. BACKGROUND
A. Procedural History
On or about November 3, 2021, Plaintiff commenced this action by the filing of a Complaint. (Dkt. No. 1.) At that time, Plaintiff was confined to Great Meadow Correctional Facility (“Great Meadow”), located in Comstock, New York. (Dkt. No. 1.)
On December 29, 2021, Plaintiff filed a notice of a change of address indicating that he had been transferred to Five Points Correctional Facility (“Five Points”), located in Romulus, New York. (Dkt. No. 7.)
On January 13, 2022, United States District Judge Brenda K. Sannes issued a decision and order accepting Plaintiff's Complaint for filing to the extent that it asserted a retaliation claim against Defendant pursuant to the First Amendment and dismissing all other claims without prejudice pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 8.) Judge Sannes's order also included the following caution, “Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; their failure to do so will result in the dismissal of his action.” (Id. at 13 [emphasis in original].)
On March 18, 2022, Defendant filed an Answer. (Dkt. No. 15.) On March 18, 2022, the Court issued a mandatory pre-trial scheduling order which, inter alia, cautioned Plaintiff that “failure . . . to attend, be sworn, and answer appropriate questions [at a properly noticed deposition] may result in sanctions, including dismissal of the action pursuant to Fed.R.Civ.P. 37.” (Dkt. No. 16 at 5.)
On October 3, 2022, Defendant filed a letter motion requesting a telephone conference because Plaintiff refused to appear for a scheduled deposition. (Dkt. No. 26.) On October 4, 2022, the Court granted Defendant's letter motion to the extent that a telephone conference was scheduled for October 11, 2022 at 11:00 a.m. (Dkt. No. 27.) On October 11, 2022, the Court held the scheduled telephone conference, however, Plaintiff refused to join and hung up the telephone conference connection. (Minute Entry dated 10/11/2022.) On October 11, 2022, Plaintiff was directed to (1) appear in person before the Court on November 7, 2022 at 1:00 p.m., for an in-person hearing, and (2) file a letter on or before October 25, 2022, advising why he hung up the telephone at the telephone conference on October 11, 2022. (Dkt. No. 29.) The Court further cautioned Plaintiff that “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE .” (Id. [emphasis in original].)
On October 24, 2022, Plaintiff filed a letter discussing (1) the events on October 11, 2022, that resulted in his absence from the telephone conference, and (2) his desire to continue to prosecute the case. (Dkt. No. 32.)
On November 7, 2022, Plaintiff appeared for the in-person conference before the Court. (Minute Entry dated 11/7/2022.) The Court directed Plaintiff to appear for a deposition scheduled by Defendant and directed that the deposition be completed before December 16, 2022. (Dkt. No. 33.) The Court cautioned Plaintiff that “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS OR FAILURE TO APPEAR AT THE DEPOSITION MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE .” (Id. [emphasis in original].)
On December 14, 2022, Defendant filed a letter motion requesting a conference with the Court because Plaintiff again failed to appear for a scheduled deposition. (Dkt. No. 34.) On December 14, 2022, the Court granted Defendant's letter motion to the extent that a Court conference was scheduled for December 22, 2022 at 1:00 p.m., and Plaintiff was directed to appear in person for the hearing. (Dkt. No. 35.) The Court cautioned Plaintiff that, “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION OR ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE .” (Id. [emphasis in original].)
On December 16, 2022, the Court rescheduled the hearing scheduled to December 21, 2022 at 1:00 p.m. (Dkt. No. 37.) Again, Plaintiff was directed to appear in-person for the hearing and cautioned that “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION OR ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE .” (Id. [emphasis in original].)
On December 21, 2022, Defendant filed a letter, which stated that Plaintiff refused to appear in person for the Court ordered conference and attached a “Refusal/Waiver of Right to Be Physically Present At Court” form signed by Plaintiff. (Dkt. No. 39.) On December 21, 2022, the Court conducted the scheduled hearing and Plaintiff failed to appear as directed. (Minute Entry dated 12/21/2022.) The Court noted that Plaintiff has failed to appear for two scheduled depositions on separate dates. (Id.) In addition, the Court noted that Plaintiff was scheduled to be paroled and released from incarceration the following day on December 22, 2022. (Id.) The Court cautioned Plaintiff that “FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION OR ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE” and reminded Plaintiff of his responsibility to update the Court and opposing counsel of his mailing address. (Dkt. No. 40.)
On December 27, 2022, Defendant filed a status report, which stated that Plaintiff was released from DOCCS custody on December 22, 2022, and provided a forwarding address for Plaintiff. (Dkt. No. 41.) On December 27, 2022, the Court scheduled an in-person hearing for January 10, 2023 at 1:00 p.m. (Dkt. No. 42.) The Court directed the Clerk of the Court to mail Plaintiff a copy of the text order to his last known address at Five Points and to the forwarding address provided in Defendant's status report. (Dkt. No. 42.)
On December 27, 2022, Plaintiff filed a letter with the Court explaining his absence from the Court hearing on December 21, 2022. (Dkt. No. 43.)
On January 10, 2023, the Court conducted a hearing and Plaintiff failed to appear. (Minute Entry dated 11/10/2023.) The Court noted that Plaintiff was released from custody and has failed to update his address with the Court and opposing counsel. (Id.) The Court scheduled an in-person hearing for January 24, 2023 at 2:00 p.m. (Dkt. No. 44.) The Court directed the Clerk of the Court to mail Plaintiff a copy of the text order to his last known address at Five Points and to the forwarding address provided in Defendant's status report. (Id.) In addition, the Court cautioned Plaintiff that “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION OR ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE .” (Id. [emphasis in original].)
On January 13, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 42, which was sent to Plaintiff at “Bellevue Shelter.” (Dkt. No. 45.) On January 20, 2023, the Clerk of the Court received as undeliverable the Court's Minute Entry of 1/10/2023, which was sent to Plaintiff at “Bellevue Shelter.” (Dkt. No. 46.) On January 23, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 42, which was sent to Plaintiff at 400 East 30th Street, New York, New York. (Dkt. No. 47.)
On January 24, 2023, the Court conducted a hearing and Plaintiff failed to appear. (Minute Entry dated 1/24/2023.) The Court noted that Plaintiff failed to appear for the last two scheduled hearings in this matter, was released from DOCCS custody on December 22, 2022, and has failed to update his address with the Court and opposing counsel. (Id.) The Court scheduled an in-person hearing for February 23, 2023 at 3:00 p.m., and cautioned Plaintiff that “FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION OR ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE.” (Dkt. No. 48.)
On January 25, 2023, the Clerk of the Court received as undeliverable Minute Entries dated 12/21/2022, which were sent to Plaintiff at Five Points. (Dkt. No. 49.) On February 10, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 48 and Minute Entry dated 1/24/2023, which were sent to Plaintiff at Bellevue Shelter. (Dkt. No. 50.)
On February 23, 2023, the Court conducted a hearing and Plaintiff failed to appear. (Minute Entry dated 2/23/2023.) The Court noted that Plaintiff failed to appear for the last three scheduled hearings and has failed to update his address with the Court. (Id.)
On February 28, 2023, Defendant filed the pending motion to dismiss for failure to prosecute presently before the Court. (Dkt. No. 52.)
On March 6, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 44, which was sent to Plaintiff at Five Points. (Dkt. No. 53.) On March 6, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 48 and Minute Entry dated 1/24/2023, which was sent to Plaintiff at Five Points. (Dkt. No. 54.) On March 13, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 51 and Minute Entry dated 2/23/2023, which were sent to Plaintiff at Bellevue Shelter. (Dkt. No. 55.) On March 13, 2023, the Clerk of the Court received as undeliverable the Court's Text Order at Dkt. No. 51 and Minute Entry dated 2/23/2023, which were sent to Plaintiff at Five Points. (Dkt. No. 56.)
B. Defendant's Motion to Dismiss
Generally, in support of her motion to dismiss, Defendant argues that the Complaint should be dismissed for failure to prosecute, and, in the alternative, the Complaint should be dismissed for failing to submit to a deposition. (Dkt. No. 52, Attach. 1.)
More specifically, Defendant argues that the balance of the Cole-Hoover factors weigh in favor of dismissing Plaintiff's Complaint because (1) since initiating this action, Plaintiff has failed to provide the Court or Defendant with a reason for his failure to participate in discovery; (2) Plaintiff has been warned of the potential for dismissal if he failed to appear for a deposition; (3) Defendant will be prejudiced by further delay and prejudice can be presumed because Plaintiff's delay has been objectively unreasonable; (4) Plaintiff's due process rights have been adequately considered and protected; and (5) lesser sanctions are not appropriate and would likely not be effective given Plaintiff's history of ignoring correspondence from Defendant and the Court's orders. (Dkt. No. 52, Attach. 1 at 6-9.)
In addition, Defendant argues that the Court is empowered to impose sanctions when a party fails to attend its own deposition or fails to obey a discovery order. (Dkt. No. 52, Attach. 1 at 9-11.) Sanctions for failure to attend a party's own deposition include dismissal of the action and the payment of reasonable expenses caused by the failure. (Id.) Defendant argues that her counsel noticed Plaintiff of his deposition on September 15, 2022 (eighteen days before he was scheduled to appear via video conference for the deposition), and again on November 17, 2022 (fourteen days before he was schedule to appear via video conference for the second deposition). (Id.)
As relief, Defendant requests that the Complaint be dismissed with prejudice and that Plaintiff be sanctioned in the amount of $177.60 for the costs incurred to schedule properly noticed depositions that Plaintiff failed to appear for. (Id.)
To date, Plaintiff has not responded to Defendant's motion to dismiss. (See generally docket sheet.)
II. RELEVANT LEGAL STANDARDS
For reasons that are self-evident, this Court's local rules require that “[a]ll attorneys of record and Pro Se litigants immediately notify the Court of any change of address.” N.D.N.Y. L.R. 10.1(c)(2) (emphasis omitted). As one court has observed with respect to this requirement,
[i]t is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties or their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.Dansby v. Albany Cnty. Corr. Facility Staff, 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.) (quoting Perkins v. King, 84-3310, 1985 U.S. App. LEXIS 31736, at *4 (5th Cir. Mar. 19, 1985)).
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with an order of the court. Fed.R.Civ.P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J., adopting report and recommendation by Lowe, M.J.). That discretion should be exercised when necessary to “achieve the orderly and expeditious disposition of cases.” Link, 370 U.S. at 630-31. In addition, it should be exercised with caution and restraint because dismissal is a particularly harsh remedy, especially when invoked against a Pro Se plaintiff. Baptiste, 768 F.3d at 216-17.
Although Rule 41(b) grants a defendant leave to move for dismissal based on a plaintiff's failure to prosecute or comply with a court order (rather than grant the court explicit authority to dismiss sua sponte), “courts retain the ‘inherent power' to sua sponte ‘clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief.'” Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J.) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Indeed, the local rules of this Court recognize this authority and mandate that the Court exercise it under certain circumstances. See, e.g., N.D.N.Y. L.R. 41.2(a).
A determination of whether to dismiss an action pursuant to Rule 41(b) is informed by consideration of the following five specific 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.Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)); see Shannon v. Gen. Elec.Co., 186 F.3d 186, 193-94 (2d Cir. 1999); Lebarron v. Warren Cnty. Sheriff's Office, 13-CV-1572, 2016 WL 2621796, at *4, n.3 (N.D.N.Y. Apr. 6, 2016) (Hummel, M.J.) (quoting Barney v. Consol. Edison Co. of New York, 99-CV-0823, 2006 WL 4401019, at *16 (E.D.N.Y. July 19, 2006)) (“‘[C]ourts consider the same factors applicable to Rule 41(b) when considering dismissal pursuant to Rule 37.'”), report and recommendation adopted, 2016 WL 2636293 (N.D.N.Y. May 6, 2016) (Suddaby, C.J.).
Rule 37(d) of the Federal Rules of Civil Procedure provides that if an individual fails to appear at his own deposition after having received proper notice, the court may take various steps to sanction the disobedient party. Fed.R.Civ.P. 37(d)(1)(A)(i). Section 37(d) cross references Rule 37(b)(2)(A)(v), which also authorizes the court to dismiss an action for failure to comply with a discovery order. The imposition of sanctions under Rule 37 is within the discretion of the district court, and the sanction of dismissal is a harsh remedy to be used “only in extreme situations.” Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990). In order to impose such a severe sanction, the court must find willfulness, bad faith, or fault on the individual from whom discovery is sought. Bobal, 916 F.2d at 764. The party in question, particularly a Pro Se litigant, must have had prior notice that violation of the court's order would result in dismissal with prejudice. Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
III. ANALYSIS
After carefully considering the matter, I recommend that Defendant's motion be granted to the extent that it seeks dismissal of the Complaint for the reasons stated in her memorandum of law. (Dkt. No. 52.) The following is intended to supplement, but not supplant, those reasons.
Plaintiff was specifically informed of the requirement that he update his address with the Clerk of the Court or risk dismissal of his lawsuit when he was provided with Judge Sannes's decision and order dated January 12, 2022. (Dkt. No. 8 at 13.)
Based upon careful consideration of the foregoing relevant factors, I conclude that dismissal of Plaintiff's Complaint at this juncture is warranted. The inability of the Court to communicate with Plaintiff is due solely to his failure to prosecute or to provide the Court with his updated address. Plaintiff's failure to proceed in this action has a substantial injurious effect on the litigation, and there is no end to Plaintiff's inaction in sight. Notably, Plaintiff has demonstrated that he is aware of his obligation to notify the Court in writing of any changes to his address, having done so previously. (Dkt. No. 7.)
Pursuant to Local Rule 41.2(a), “the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). The last contact that Plaintiff had with the Court was a letter dated December 21, 2022, over five months ago. (Dkt. No. 43.)
Despite Plaintiff's awareness of his responsibility, he has failed to provide an updated address to the Court since his release from custody over five months ago. (See generally docket sheet.) Given Plaintiff's manifest disinterest in pursuing his claims in this action, I find that the need to alleviate congestion on the Court's docket and Defendant's interest in defending against the claims asserted by Plaintiff, outweigh his right to receive a further opportunity to be heard in this matter. As required, I have considered less-drastic sanctions, but reject them as ineffective. For example, I am persuaded that issuing an order reprimanding Plaintiff for his conduct would be futile, given that such an order would, in all likelihood, never reach Plaintiff due to his failure to provide the Court with a current address.
For each of these reasons and those set forth by Defendant in her moving papers (Dkt. No. 52), I recommend that Plaintiff's Complaint be dismissed with prejudice.
Moreover, Defendant has requested that Plaintiff be sanctioned in the amount of $177.60 for the costs incurred to schedule two properly noticed depositions that Plaintiff failed to appear for. Defendant's counsel submitted a sworn declaration, attaching invoices for the fees incurred when Plaintiff failed to appear for the noticed depositions on October 3, 2022, and December 1, 2022. (Dkt. No. 52, Attach. 2 at ¶¶ 12, 19; Dkt. No. 52, Attach. 2 at 16, 25 [invoices reflecting that Defendant incurred costs in the amount of $88.80 for each noticed deposition that Plaintiff failed to attend].)
I recommend that the Court impose a sanction against Plaintiff in the amount of $88.80. The Court's pre-trial scheduling order clearly stated that “Defense counsel shall provide plaintiff(s) with notice of the date of the deposition . . . and such notice shall be deemed sufficient if the notice is mailed to plaintiff(s) at least fifteen (15) days prior to the scheduled date for the deposition.” (Dkt. No. 16 at 5.)
On September 15, 2022, Defendant provided notice to Plaintiff that his deposition was scheduled for October 3, 2022. (Dkt. No. 52, Attach. 1 at 4; Dkt. No. 52, Attach. 2 at 13-14.) This notice complied with the requirements set forth in the Court's pre-trial scheduling order in that, it was provided eighteen-days in advance of the scheduled deposition. Thus, I recommend that Defendant be reimbursed for the costs incurred related to the noticed deposition on October 3, 2022, in the amount of $88.80.
On November 17, 2022, Defendant provided notice to Plaintiff that his deposition was scheduled for December 1, 2022. (Dkt. No. 52, Attach. 1 at 4-5; Dkt. No. 52, Attach. 2 at 1819.) This notice did not comply with the requirements set forth in the Court's pre-trial scheduling order because it only provided fourteen-days advance notice of the scheduled deposition. As a result, I find that the deposition notice for December 1, 2022, was not presumptively sufficient and Plaintiff should not be sanctioned costs for his failure to attend.
ACCORDINGLY, it is
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED with prejudice, pursuant to Fed.R.Civ.P. 41(b) and in the alternative, pursuant Fed.R.Civ.P. 37, based on his failure to prosecute and comply with this Court's orders and local rules of practice; and it is further
RECOMMENDED that Defendant's motion to dismiss for failure to prosecute (Dkt. No. 52) be GRANTED to the extent that it seeks dismissal of the Complaint and that Plaintiff be sanctioned costs in the amount of $88.80, and DENIED to the extent that it requests that Plaintiff be sanctioned costs in an amount greater than $88.80; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: 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 . 28 U.S.C. § 636(b)(1) (Supp. 2013); FED. R. CIV. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).