Opinion
20-CV-10942 (VEC) (RWL)
04-21-2022
TOWAKI KOMATSU, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION TO HON. VALERIE E. CAPRONI MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff, a prolific pro se litigant, filed this action claiming violation of his civil rights stemming from his arrest in December 2017. Throughout the course of the litigation, Plaintiff has repeatedly disobeyed court orders, inundated the Court with irrelevant correspondence, and steadfastly refused to comply with his discovery obligations. Despite multiple warnings from the Court that Plaintiff's willful misconduct could and would result in dismissal of his claims, he has remained intransigent. Defendants have moved to dismiss the case as a sanction pursuant to Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure and for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure 41(b). The Court agrees that dismissal at this juncture is warranted and therefore recommends that Defendants' motion be GRANTED and the case dismissed with prejudice.
FACTUAL BACKGROUND
Towaki Komatsu (“Plaintiff” or “Komatsu”), proceeding pro se, filed this action on December 25, 2020, against the City of New York and numerous police officers. The complaint asserts 31 causes of action, including that Komatsu was falsely arrested, subjected to excessive force, and maliciously prosecuted. The facts set forth are those relevant to the instant motion and are based on the allegations of the Second Amended Complaint (“SAC”). (Dkt. 151.) For purposes of the motion, the Court accepts the well-plead allegations as true and draws all reasonable inferences in favor of Komatsu.
On December 26, 2017, Komatsu was walking along a public corridor bordering a school and Prospect Playground in the Bronx. (SAC ¶ 11.) Two police officers stopped Komatsu and accused him of trespassing, which Komatsu denied. (SAC ¶ 12.) An argument ensued, and the officers issued Komatsu a verbal warning. (SAC ¶ 14.) As the police walked away, Komatsu followed them. (SAC ¶¶ 14-16.)
As Komatsu followed the police, one of the officers said, “I'm gonna EDP this guy.” (SAC ¶ 17.) EDP refers to “emotionally disturbed person.” Another officer said, “He's not EDP.” (SAC ¶ 18.) The officers subsequently proceeded to arrest and physically restrain Komatsu. (SAC ¶¶ 24-32.) After arresting Komatsu, the police took Komatsu to St. Barnabus Hospital to be diagnosed and treated for injuries sustained during his arrest. (SAC ¶ 33.) He was diagnosed as having an abrasion to one finger and a sprain to another finger; Komatsu claims he also had a bruised chin. (SAC ¶ 39.)
A Civilian Complaint Review Board report issued on March 19, 2018 found, falsely Komatsu alleges, that one of the officers believed that Komatsu was emotionally disturbed. (SAC ¶ 40(f).) The report also states that medical records from St. Barnabas show that Komatsu was identified as suffering from psychiatric problems. According to Komatsu, that is a lie; the records he received from St. Barnabas do not contain that information. (SAC ¶ 40(g).) Similarly, Komatsu alleges that the police lied during an Internal Affairs Bureau investigation, by saying that nurses at St. Barnabas agreed that Komatsu needed to be subjected to a psychological evaluation. (SAC ¶ 42(e).)
PROCEDURAL BACKGROUND
Plaintiff commenced this action on December 25, 2020. Since then, he has engaged in an array of vexatious conduct and violation of court orders. Among the more recent of those, he has insistently refused to comply with discovery requests and court orders to provide a Health Insurance Portability and Accountability Act (“HIPAA”) medical release without which Defendants cannot adequately defend the case.
A. Plaintiff's Vexatious Litigation And Failure To Comply With Court Orders
From early on, Plaintiff filed a barrage of lengthy letters and applications concerning matters irrelevant to the instant case and repeatedly used disrespectful and foul language. Examples of that behavior are catalogued in the Court's order dated August 3, 2021. (Dkt. 79 at 1-2.) His conduct was so egregious that the Court imposed filing restrictions requiring Plaintiff to seek leave from the undersigned before making further filings in the case (the “Filing Restriction Order”). (Id. at 9-10.) Any such request must include a one-page motion explaining why Plaintiff should be permitted to file the motion and a one-page statement under penalty of perjury stating that the submission is related to this case, that the submission is not frivolous or for any improper purpose, and that the filing complies with the Court's orders as well as the Federal Rules of Civil Procedure and the Court's Local Rules. (Id.)
Notwithstanding those restrictions, Plaintiff's vexatious conduct continued unabated. Indeed, the same day Plaintiff appealed the Filing Restriction Order (see Dkt. 83), he filed a letter in the instant case and several other cases addressed to Chief Judge Swain concerning matters irrelevant to this case. (Dkt. 86 (letter complaining about recent treatment by court security officers); see also, e.g., Dkt. 91 (nine-page filing complaining about court security officers and referencing multiple cases filed by Plaintiff other than the instant one); Dkt. 101 at 3 (Court order referencing Plaintiff's “continued filing of frivolous and vexatious letters”); Dkt. 103 (letter concerning Plaintiff's recent arrest for allegedly failing to use Metrocard); Dkt. 107 (Court order striking letter that “is vexatious, serves no purpose other than to insult and impugn a district judge and the integrity of the judiciary, and identifies no particular request for legal relief”).
Nor did Plaintiff cease use of disrespectful and foul language. (See, e.g., Dkt. 92 (letter motion referring to “Valerie's vile and subservient seal of approval”); Dkt. 102 (letter referring to Judge Caproni as a “con artist” who “lie[d]”); Dkt. 110 (letter referring to Judge Lehrburger as “Robert”); Dkt. 185 (“I am absolutely done tolerating bull shit by federal judges”).) Plaintiff even declared his intention to not demonstrate respect: “I have no intention going forward with showing respect to any federal judge” (Dkt. 91 at 8), and continued to use disrespectful language even after he had been admonished many times and the filing restrictions had been imposed. (See, e.g., Dkt. 138 (again referring to Judge Caproni as a “con artist” who “lied”)). As Judge Caproni clarified, however, the filing restrictions imposed on Plaintiff were not due to his use of disrespectful and inappropriate language, but rather his persistent filing of irrelevant and frivolous material. (Dkt. 115 at 3.) Similarly, the determination in this Report and Recommendation is not grounded on Plaintiff's use of particular language.
Plaintiff also directly violated the terms of the Filing Restriction Order. (See, e.g., Dkt. 96 & 98 (using second letter as continuation of first letter so as to exceed one-page limitation). Rather than following the direction to file a request for leave to file with an explanation of why he should be permitted to do so, Plaintiff simply included the substance of his letter or application in the leave application itself. (See, e.g., Dkt. 99 (“The preceding information explains why I should be permitted to file this letter”) (emphasis added); Dkt. 100 (same); Dkt. 110 (same); Dkt. 112 (same); see generally Dkt. 101 at 3 (Court order reminding Plaintiff that he must submit letter motion of no more than one page seeking leave to file a letter or application, and chastising Plaintiff for “cramming the filing itself into less than one page” which “flouts the filing restrictions”); Dkt. 115 at 3 (same).)
In a further effort to dissuade Plaintiff from his vexatious conduct and violations of the Court's orders, the Court warned Plaintiff, on September 8, 2021, that his case would be dismissed for continued violations:
Plaintiff continues to attempt to seek reconsideration of rulings for which reconsideration has already been denied. Plaintiff continues to violate the requirements of the filing injunction by failing to submit requests to file to Magistrate Judge Lehrburger, and by circumventing the requirement to seek leave to file before filing the document that is the same document requested to be filed. Continued violations of the Court's orders will result in sanctions, including dismissal of the case with prejudice.(Dkt. 120 at 2.)
See, e.g., Dkt. 32 at 2-3 (May 4, 2021 order denying Plaintiff's request that the Court reconsider its April 23, 2021 decision denying previous motion for reconsideration of decision filed on April 17, 2021).
Once again, however, Plaintiff persisted in his vexatious conduct and violation of court orders. He continued to file letters concerning irrelevant subject matter. (See, e.g., Dkt. 134 (letter addressing COVID-related restrictions on access to courtrooms and Plaintiff's treatment by court officers); Dkt. 166 (complaining about alleged “stalking” of Plaintiff by court officers); Dkt. 173 (letter demanding answers to questions about use of photograph of Plaintiff he claims was sealed in an earlier case and why the Bronx District Attorney did not provide him with a report in another case); Dkt. 182 (demanding that court take judicial notice of 209-page document Plaintiff prepared and filed in another case about his treatment by court officers); Dkt. 188 (discussing news articles about behavior of Assistant United States Attorneys in other matters).
He continued to file his letters and applications not as requests for leave to file a future document or application but rather as a vehicle for the document or application itself. (E.g., Dkt. 134 (“I am submitting this letter after having just read the sentence [from Judge Caproni's order] that confirms that Judge Caproni is illegally and flagrantly violating my [constitutional rights]”); Dkt. 141 (“This letter is in response to [defense counsel's] ... letter”); Dkt. 152 (“This letter is to provide you with new information that I discovered ...”); Dkt. 166 (“This letter is t[o] direct you to grant me an immediate change of venue .”); Dkt. 173 (“This letter is a supplemental response to your order .”); Dkt. 184 (“This letter is in response to .”).)
He continued to file requests for reconsideration of decisions denying reconsideration. (See, e.g., Dkt. 145 (denying letter application because the request was “essentially . a request to reconsider a decision made on a request to reconsider” in which the Court denied Plaintiff's application to file a premature motion for partial summary judgment and for Judge Caproni to recuse herself); Dkt. 159 (denying request because Plaintiff was “once again seeking reconsideration of matters already the subject of a request to reconsider, ” and noting that the filing is “vexatious and in violation of previous court orders”).)
On November 15, 2021, the Court issued an order scheduling an initial pretrial conference for December 7, 2021. (Dkt. 170.) Plaintiff clearly knew about the conference as he addressed it in subsequent letters to the Court. (See, e.g., Dkt. 173 (requesting authorization to bring electronic equipment to pretrial conference); Dkt. 182 (letter stating “if I learn that any shenanigans occur on 12/7/21 inside of the Daniel Patrick Moynihan courthouse that cause members of the public who may wish to attend our conference in this case from lawfully attending it, then I will immediately leave that conference. If anyone attempts to block me from leaving it under such circumstances, then I will shove that person out of my way and leave it.”).)
Despite knowing of the pretrial conference, Plaintiff willfully failed to appear. (See Dkt. 185 (letter stating that Plaintiff “will not voluntarily attend any hearing inside of a federal courthouse that I'm directed to attend as long as I continue to be illegally discriminated against by the U.S. Marshals Service ... and federal court security officers”); Dkt. 194 (making frivolous argument that Plaintiff purposefully did not attend the conference because “I'm acting in compliance with Judge Caproni's 9/26/18 directive to [stay away from court officers]”).)
The Court therefore issued an order to show cause requiring Plaintiff to appear on December 14, 2022 to demonstrate “why Plaintiff should not be held in contempt and why this case should not be dismissed with prejudice for failure to prosecute, defiance of court orders, and vexatious conduct pursuant to Fed.R.Civ.P. 41 and the inherent powers of the Court.” (Dkt. 189.) Despite threatening not to appear in court (see Dkts. 194-95), Plaintiff appeared at the show-cause hearing on December 14, 2022. Even there, however, and despite the Court's admonitions to stay on point, Plaintiff expounded on his alleged treatment by court officers, referenced his filings in other cases, debated the limits on number of persons allowed in court elevators during COVID-19, and resurrected for reconsideration issues for which reconsideration already had been denied. (See Dkt. 252 at 6-7, 14-24, 41-42.)
Because Plaintiff appeared at the hearing, the Court did not impose any sanction or recommend dismissal at that time. (See Dkt. 252 at 27.) The Court warned Plaintiff, however, about the consequences going forward: “the more you defy Court orders, the more you are building a case against yourself that your case will be dismissed ....” (Id.) Plaintiff responded, “I understand that.” (Id.)
Nonetheless, less than a day after the show-cause hearing, Plaintiff's vexatious conduct continued relentlessly, including violating the Filing Restriction Order, filing letters about irrelevant subject matter, and filing duplicative requests for the same relief previously denied. (See, e.g., Dkts. 200, 202, 203, 206, 208, 209, 210, 215); see generally Dkt. 214 (Dec. 22, 2021 Court order stating: “Plaintiff continues to file frivolous requests for relief; to seek relief based on alleged facts that are false; to make requests for relief that previously have been denied on multiple occasions; and to violate court orders. The Court has warned Plaintiff on multiple occasions that failure to abide by Court orders and to engage in the foregoing conduct will result in a recommendation to dismiss his case. This is the Court's final warning.”).)
Plaintiff's vexatious litigation conduct has permeated not only this case, but also others he has filed in this District. That has been especially so in Komatsu v. City Of New York, No. 20-CV-7046, a consolidated group of nine separate cases filed by Plaintiff. Early in that case, Plaintiff's extensive, gratuitous filings led Judge Ramos to impose restrictions on cases Plaintiff could file and filings he could make within those cases. No. 20-CV-7046 (Dkt. 45 at 3) (Dec. 15, 2020) (requiring Plaintiff to seek permission to file any new action and to submit a letter or motion in the then-existing consolidated action of nine cases); see also Komatsu v. City Of New York, No. 18-CV-3698 (Dkt. 621) (Aug. 9, 2021) (noting Plaintiff's repeated violation of court orders and imposing filing restrictions on Plaintiff)). And, just as in this case, Plaintiff has repeatedly defied court orders, culminating in an order to show cause why the case should not be dismissed for vexatious conduct and failure to comply with court orders. No. 20-CV-7046 (Dkt. 208) (Aug. 9, 2021); see also No. 18-CV-3698 (Dkt. 627) (Sept. 27, 2021) (dismissing Plaintiff's case for repeatedly failing to follow court orders, filing frivolous letters and applications, and continuing to employ foul and degrading language referencing judges and others).
B. Plaintiff's Refusal To Provide A HIPAA Medical Information Release
On at least three occasions since inception of the case, Defendants requested from Plaintiff a signed HIPAA medical release for records from St. Barnabas Hospital following the December 2017 incident at issue in this case. (See Dkts. 113, 207.) Plaintiff did not comply.
On December 17, 2021, Defendants filed a letter motion to compel Plaintiff to provide a properly executed medical release allowing Defendants to obtain Plaintiff's medical records, including both physical and mental health records, from St. Barnabas following the incident. (Dkt. 207.) As the letter motion explained, Defendants are entitled to obtain medical documents related to the incident pertaining to both physical injuries, which Plaintiff alleges in his complaint, and mental health records, which Plaintiff put at issue by asserting a false arrest claim. More particularly:
Defendants ... did not charge Plaintiff with any crime, but rather determined that Plaintiff was an emotionally disturbed person pursuant to New York Mental Hygiene Law (“MHL”) § 9.41. Under the MHL, officers may take a person into custody for the purpose of transporting him to a psychiatric hospital when the officer reasonably believes that the individual is emotionally disturbed and may pose a threat to himself or others. [Defendant officers] merely transported Plaintiff to St. Barnabas Hospital. Thus, to the extent that Plaintiff now asserts a claim for false arrest, he is necessarily challenging the officers' determination that they had a reasonable basis for believing he was emotionally disturbed and needed to be transported to a hospital in handcuffs for his safety or the safety of others. Thus, any mental health assessment conducted on the date of incident is also relevant to Plaintiff's claims. (Dkt. 207 at 2.) On January 4, 2022, Plaintiff filed a response refusing to produce the medical release, asserting that defense counsel had not presented any objective factual or legal grounds for doing so. (Dkt. 220.)
Rather than focus on Defendants' motion to compel, Plaintiff spent the majority of his filing complaining about flexibility in deadlines and a ruling in that regard from another of Plaintiff's cases. (Dkt. 220.)
On January 6, 2022, the Court issued an order granting Defendants' motion to compel. As the Court explained:
The Complaint alleges excessive force and physical harm for which Plaintiff received treatment at St. Barnabas. (Compl. 48.) The Complaint also alleges that the police took Plaintiff in custody under the allegedly fraudulent pretext that he was an emotionally disturbed person. (Compl. 28.) Plaintiff has thereby put his mental health status directly at issue.(Dkt. 222.) The order directed Plaintiff to produce a fully executed HIPAA release form no later than January 13, 2022, for all records from St. Barnabas from the day of the incident at issue and thereafter. The order warned about the consequences of failing to do so: “Failure to comply with this Order may result in dismissal with prejudice for failure to prosecute and/or failure to comply with Court orders and discovery obligations.” (Id.)
The next day, January 7, 2022, Plaintiff lodged an objection to the order with Judge Caproni. (Dkt. 224.) Judge Caproni overruled the objection. (Dkt. 226.) On January 8, 2022, Plaintiff then promptly filed a letter requesting immediate certification of the medical release order for interlocutory appellate review. (Dkt. 227.) Plaintiff again expressed his willfulness in refusing to comply with a court order, stating that “I certainly will not grant that release until a valid justification has been made.” (Id.) The same day, Plaintiff filed another letter on the same subject, quoting from an article about a different case where a court found an officer had no reason to believe that the plaintiff in that case was an EDP. (Dkt. 229.) In doing so, Plaintiff only further underscored the relevance and materiality of the medical records for which he was ordered to provide a release.
Plaintiff filed another letter dated January 7, 2022, which the Court construed as a motion for reconsideration, similarly demonstrating the relevance and materiality of the records at issue. The letter quoted from the SAC's description of a recorded conversation in which a person is heard saying “he's not EDP.” (Dkt. 228.) Although Plaintiff contends that the officers who took him to St. Barnabas did not genuinely believe that he was EDP, the hospital records remain highly relevant. The Court thus denied reconsideration and reiterated that the allegation from the SAC highlighted by Plaintiff “merely creates a fact issue and underscores the relevance and need for the HIPAA release.” (Dkt. 232.)
On January 14, 2022, Judge Caproni denied Plaintiff's request to certify the medical release order for interlocutory appeal and denied any request for a stay of the same. (Dkt. 234.) Plaintiff still did not provide the required medical release, and has not done so any time since.
C. Defendants' Motion To Dismiss And Plaintiff's Response
Not having received the HIPAA release as ordered, Defendants moved to dismiss the SAC on January 18, 2022. (Dkt. 236.) Defendants assert that Plaintiff's willful refusal to provide a HIPAA medical release warrants dismissal for failure to comply with court- ordered discovery pursuant to Fed.R.Civ.P. 37 and for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
In the days that followed Defendants' motion to dismiss, Plaintiff filed letters offering either excuses for not complying or outright refusals to comply. As one excuse, Plaintiff claimed that the Court had not identified the specific statements in his complaint that justify production of medical records, even though the Court's January 6, 2022 order specifically cited to the SAC. (Dkt. 237.) As another excuse, Plaintiff claimed not to have received the motion to dismiss, even though his letter purported to be “in response” to that very motion (Dkt. 241), and in his letter dated the day before he cited case law and argued the facts as further grounds why he should not have to sign a medical release. (Dt. 240.) Plaintiff also complained that he did not have a copy of the transcript from the December 14, 2021 show-cause hearing, even though that hearing preceded both Defendants' motion to compel and motion to dismiss. (Dkt. 241.)
At the same time, Plaintiff continued to declare his refusal to comply with the Court's order. In one letter, he invited the Court to issue a “contempt order against me for not complying with the baseless medical records release demand” so that he could file an appeal. (Dkt. 238.) In another he wrote, “I'm not going to compromise about my medical records and have no valid reason to. Immediately resign as a judge.” (Dkt. 239.)
Notwithstanding Plaintiff's recalcitrance, and the questionable nature of his excuses, the Court directed that Defendant order and provide Plaintiff with a copy of the December show-cause hearing transcript (Dkt. 243), confirmed that Plaintiff had received a copy of Defendants' motion to dismiss (Dkt. 247), and gave Plaintiff an opportunity to supplement his opposition as long as he did so within 30 days of service of a copy of the show-cause hearing transcript. (Dkt. 250.) Upon filing of proof of service of the transcript, the Court issued an order specifying March 17, 2022 as the date by which Plaintiff could file any further opposition to the motion to dismiss. (Dkt. 264.) The Court subsequently extended that date to March 18, 2022. (Dkt. 268.)
Rather than taking advantage of his opportunity to provide further arguments in response to Defendants' motion to dismiss, Plaintiff continued to file numerous letters making frivolous demands and raising irrelevant subject matter. (See, e.g., Dkt. 254 (seeking to move for sanctions against the New York City Law Department); Dkt. 255 (claiming he was assaulted, thus warranting extension of unspecified deadlines); Dkts. 257, 260, 263 (expressing dissatisfaction with having received a copy of the show-cause hearing transcript that was not in PDF format and text searchable); Dkt. 259 (debating the number of persons allowed in courthouse elevators pursuant to COVID protocols); Dkt. 271 (complaining about the Court's alleged lack of respect for Plaintiff); Dkts. 274, 275 (referencing Twitter post about remarks made by New York City's Mayor in regard to the police and requesting injunction preventing the police from allegedly interfering with the public's right to record police behavior).
On March 17, 2022, Plaintiff filed his “last response for which [the Court] set the 3/18/2022 deadline.” Plaintiff protested what he described as “abuse of discretion and clear lies by you and Valerie as both of you have been fraudulently and pretextually attempting to coerce me to forsake my privacy rights in this case about my medical records.” (Dkt. 276.)
LEGAL STANDARDS
A. Dismissal As A Sanction Pursuant To Rule 37(b)(2)(A)
The Federal Rules permit dismissal of an action as a sanction for failure to comply with discovery. “If a party . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include ... dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v); Peterson v. Apple Inc., No. 12-CV-6467, 2013 WL 3467029, at *5 (S.D.N.Y. July 10, 2013), R&R adopted, 2013 WL 3963456 (S.D.N.Y. Aug. 1, 2013). “Imposing sanctions pursuant to Rule 37 is within the discretion of the district court ..” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (internal quotation marks and citation omitted). While courts in the Second Circuit prefer that cases be decided on the merits, “the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Valentine v. Museum Of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (internal quotation marks and citation omitted).
When considering whether to dismiss a case pursuant to Rule 37, the Second Circuit considers four factors: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of . noncompliance.” World Wide Polymers, 694 F.3d at 159 (quoting Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009)). The factors are not exclusive; nor does each one have to be resolved against the party being sanctioned for dismissal to be appropriate. World Wide Polymers, 694 F.3d at 159 (quoting Southern New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir.2010)).
B. Dismissal For Failure To Prosecute Pursuant To Rule 41(b)
Dismissal for failure to comply with Court orders also may be granted pursuant to Rule 41(b), which provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). As with dismissal pursuant to Rule 37(b)(2)(A), dismissal under Rule 41(b) lies within the discretion of the district court. See Ruzsa v. Rubenstein & Sendy Attorneys At Law, 520 F.3d 176, 177 (2d Cir. 2008) (finding no abuse of discretion in dismissal pursuant to Rule 41(b)).
The Second Circuit has set forth five factors to be considered in determining whether dismissal is appropriate pursuant to Rule 41(b): (1) whether the plaintiff's failure to prosecute caused a delay of significant duration; (2) whether the plaintiff was given notice that failure to comply or further delay would result in dismissal; (3) whether the defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion balanced against plaintiff's right to an opportunity for a day in court; and (5) the efficacy of lesser sanctions. Ruzca, 520 F.3d at 177; United States Ex Rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004). “No one factor is dispositive, ” and the decision must be based on the entirety of the record. Drake, 375 F.3d at 254.
C. Plaintiff's Pro Se Status
Dismissal pursuant to either Rule 37(b)(2)(A) or Rule 41(b) is “a harsh remedy and is appropriate only in extreme situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Moreover, “pro se plaintiffs should be granted special leniency regarding procedural matters.” LeSane v. Hall's Securities Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001); see also Lucas, 84 F.3d at 535 (“district courts should be especially hesitant to dismiss for procedural deficiencies where ... the failure is by a pro se litigant.”). At the same time, “all litigants, including pro ses, have an obligation to comply with court orders.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir.1988). Accordingly, “[t]he severe sanction of dismissal with prejudice 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, 29 F.3d at 50; see also Agiwal, 555 F.3d at 302 (although pro se parties are treated with special solicitude, they “are not immune to dismissal as a sanction for noncompliance with discovery orders”).
This case, where clear warning of dismissal has been given, presents an extreme situation warranting dismissal. Indeed, courts have routinely dismissed cases brought by pro se plaintiffs with facts similar to those presented here. See, e.g., Workneh v. Super Shuttle International, Inc., No. 15-CV-5321, 2020 WL 3492000, at *8-11 (S.D.N.Y. June 8, 2020), R&R adopted, 2020 WL 3489483 (S.D.N.Y. June 26, 2020) (dismissing complaint based on, inter alia, pro se plaintiff's failure to provide HIPAA releases); Leibovitz v. City Of New York, No. 15-CV-546, 2019 WL 4307305 (S.D.N.Y. Aug. 27, 2019), R&R adopted, 2019 WL 4303343 (S.D.N.Y. Sept. 11, 2019) (same); Balkani v. City Of New York, No. 18-CV-3159, 2018 U.S. Dist. LEXIS 185005 (S.D.N.Y. Oct. 26, 2018) (same); Heendeniya v. St. Joseph's Hospital Health Center, No. 15-CV-1238, 2018 WL 5297806 (N.D.N.Y. Oct. 25, 2018) (same); Briel v. Fields, No. 12-CV-2868, 2015 WL 13745257 (E.D.N.Y. Nov. 10, 2015) (same).
DISCUSSION
There is a substantial overlap of the factors considered under both Rule 37(b)(2)(A) and Rule 41(b). See Peters-Turnbull v. Board Of Education Of City Of New York, 7 Fed. App'x 107, 110 (2d Cir. 2001) (“As the District Court noted ... there is little distinction whether the dismissal is technically made under Rule 41 or Rule 37”); Samonte v. Wanat, No. 13-CV-226, 2014 WL 1817605, at *7 (E.D.N.Y. May 6, 2014) (recognizing “overlap” and dismissing pro se action pursuant to both Rules). The Court will first address the analysis pursuant to Rule 41(b) and then any different or additional factors under 37(b)(2)(A). Regardless of which rule provides the framework, however, all relevant factors weigh in favor of dismissal of the case with prejudice.
A. Dismissal Is Warranted Under Rule 41(b)
The five factors relevant to dismissal pursuant to Rule 41(b) are: (1) whether the plaintiff's failure to prosecute caused a delay of significant duration; (2) whether the plaintiff was given notice that failure to comply or further delay would result in dismissal; (3) whether the defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion balanced against plaintiff's right to an opportunity for a day in court; and (5) the efficacy of lesser sanctions. Ruzsa, 520 F.3d at 177. The Court discusses each in turn.
1. Plaintiff's Failures To Comply Have Been Frequent And Enduring
Plaintiff has delayed proceedings in this case repeatedly by inundating the Court with irrelevant subject matter and repeated requests for relief that had already been denied and reconsidered. He has repeatedly failed to comply with the Court's Filing Restriction Order. He delayed proceedings by failing to appear for the initial pretrial conference held on December 7, 2021. But the single most enduring violation of the Court's orders is Plaintiff's refusal to provide an executed HIPAA authorization. Without the authorization, Defendants cannot obtain the medical records from the hospital to which he was taken by the Defendant officers, and which are material to any injuries incurred by Plaintiff and whether the officers had cause to bring him to the hospital for being emotionally disturbed.
The delay caused by Plaintiff's failure to provide the requisite medical release has lasted for well more than four months. First, Plaintiff failed to provide the requisite medical release in response to repeated requests by Defendant. Then Plaintiff opposed Defendants' motion to compel production of a signed medical release. Next, Plaintiff refused to comply with the Court's January 6, 2022 order requiring him to provide the medical release. He also refused to provide the medical release even after Judge Caproni promptly overruled his objections to the order requiring him to provide it. Indeed, rather than complying, Plaintiff filed further protests to producing it, even though his protests only further underscored the relevance and materiality of the medical release.
Even as of now, Plaintiff has not provided the HIPAA authorization. His failure to do so thus has continued for over five months and running. That is a substantial period of delay. See, e.g., Balkani, 2018 U.S. Dist. LEXIS 185005 at *2 (dismissing action after four-month failure to provide HIPAA release); Peterson, 2013 WL 3467029 at *9 (dismissal warranted after five-month delay), Rodriguez v. Oak Room, No. 12-CV-2921, 2012 WL 5305551, at *2 (S.D.N.Y. Oct. 23, 2012) (dismissing case after noncompliance lasting more than five months); Martin v. City of New York, No. 09-CV-2280, 2010 WL 1948597, at *2 (S.D.N.Y. May 11, 2010) (plaintiff failed to satisfy her discovery obligations for at least two-and-a-half months). The duration factor weighs in favor of dismissal.
2. Plaintiff Received Express Notice Of Dismissal
The Court warned Plaintiff about the potential consequences of his failing to comply with Court orders on multiple occasions. On September 8, 2021, the Court's order warned that “[c]ontinued violations of the Court's orders will result in sanctions, including dismissal of the case with prejudice.” (Dkt. 120 at 2.) At the December 14, 2022 showcause hearing, Plaintiff expressly stated his understanding of the Court's admonition that “the more you defy Court orders, the more you are building a case against yourself that your case will be dismissed ....” (Dkt. 252 at 27.) By Court order dated December 22, 2021, the undersigned observed that “the Court has warned Plaintiff on multiple occasions that failure to abide by Court orders . will result in a recommendation to dismiss his case” and further cautioned, “This is the Court's final warning.” (Dkt. 214.)
With respect to the HIPAA authorization in particular, the Court's January 6, 2022 order requiring production of the medical release warned Plaintiff that his failure to comply “may result in dismissal with prejudice.” (Dkt. 222.) Even after Judge Caproni overruled Plaintiff's objections to the order, he refused to comply. Plaintiff also has been on notice ever since Defendants filed their motion to dismiss that the case could be dismissed in the event Plaintiff failed to comply with the medical release order. Rather than providing the medical release, Plaintiff offered frivolous excuses for not providing it (Dkt. 237, 240, 241), and expressed his devout refusal to do so. (See, e.g., Dkt. 227 (“I certainly will not grant that release until a valid justification has been made”); Dkt. 239 (“I'm not going to compromise about my medical records and have no valid reason to”).)
As the Court gave Plaintiff clear warning of potential dismissal of his case for failure to comply with the Court's order to provide a HIPAA medical release, as well as several earlier warnings about failure to comply with the Court's orders, the notice factor weighs in favor of dismissal. See, e.g., Europacific Asset Management Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) (“A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal”); Feurtado v. City Of New York, 225 F.R.D. 474, 479 (S.D.N.Y. 2004) (dismissing for failure to prosecute after court warned plaintiff twice about possibility of dismissal).
3. Defendants Have Incurred Substantial Prejudice
Prejudice resulting from an unreasonable delay may be “presumed as a matter of law.” Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993); Zaeretsky v. Zaretsky, No. 10-CV-3771, 2011 WL 8085263, at *3 (E.D.N.Y. Oct. 13, 2011); Steele v. Ralph, No. 12-CV-461S, 2016 WL 6070145, at *2 (W.D.N.Y. Oct. 16, 2016). However, “in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionally greater.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.1982) (citations omitted). Here, the delays caused by Plaintiff have been neither moderate nor excusable.
Even apart from the presumption, Plaintiff's transgressions have prejudiced Defendants. First, Defendants incurred the expense and time required to prepare letters and court applications seeking Plaintiff's compliance with discovery demands and court orders and prepare the motion to dismiss. See, e.g., Peart, 992 F.2d at 462 (finding prejudice from time and money spent preparing for trial); Peterson, 2013 WL 3467029 at *10 (actual prejudice shown by defendants incurring burden and expense of preparing for deposition at which Plaintiff failed to appear).
Second, and most directly in relation to the HIPAA issue, Defendants have been deprived of a material piece of evidence relevant to Plaintiff's claimed injuries and whether the officers had cause to seize and take him to the hospital as an EDP. See Leibovitz, 2019 WL 4307305 at *3 (finding prejudice from defendant's failure to provide medical releases that were a “fundamental” part of discovery); Balkani, 2018 LEXIS 185005 at *5 (plaintiff's delays in executing releases “are particularly prejudicial to Defendants in this case because it entirely undermines their ability to investigate the circumstances under which Plaintiff claims he was harmed”). The prejudice factor weighs strongly in favor of dismissal.
4. Balancing Of Court Congestion And Plaintiff's Right To A Day In Court Favors Dismissal
Plaintiff's resistance to complying with his obligation to provide the HIPAA authorization and to adhering to the Court's orders has imposed substantial burden on the Court. The Court has devoted a disproportionate amount of time to dealing with Plaintiff's interference with the progress of his own case, time that could more productively be put to work for other litigants. As the Second Circuit has explained, “the authority to invoke dismissal for failure to prosecute is ‘vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts.'” Peters-Turnbull, 7 Fed. App'x at 110 (quoting Lyell, 682 F.2d at 42); see also Sanders v. Ramos, No. 12-CV-5302, 2013 WL 592670, at *3 (S.D.N.Y. Jan. 24, 2013), (“noncompliance with the Court's orders undermines the ability of the Court to manage its docket and dispense justice to all litigants in an expeditious manner”) (internal quotation marks omitted), R&R adopted, 2013 WL 594229 (S.D.N.Y. Feb. 14, 2013). This concern is all the more apt given that “the Southern District of New York is among the busiest districts in the nation.” Stewart v. Manhattan Yacht Club, Inc., No. 16-CV-9764, 2018 WL 3579849, at *6 (S.D.N.Y. July 25, 2018).
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. “[T]he fact that [Plaintiff] repeatedly disobeyed court orders vastly diminishes his right to have his claim heard by this Court." Feurtado, 225 F.R.D. at 480; see also Dodson v. Runyon, 957 F.Supp. 465, 470 (S.D.N.Y. 1997), aff'd, 152 F.3d 917 (2d Cir.1998) (“any claim that plaintiff's due process rights were violated ... cannot prevail because the delay and resultant dismissal of plaintiff's case are of his own making.”).
Plaintiff is the sole cause for the predicament in which he finds himself. The burdens on the Court and diversion of resources away from deserving litigants significantly outweighs Plaintiff's loss of his ability to further press this case.
5. Lesser Sanctions Will Not Be Effective
No sanction short of dismissal would effectively address Plaintiff's recalcitrance and refusal to provide the requisite HIPAA authorization. Plaintiff's continued defiance of Court orders after being warned that the consequence of noncompliance is dismissal indicates that lesser sanctions would be “an exercise in futility.” Coach, Inc. v. O'Brien, No. 10-CV-6071, 2011 WL 6122265, at *4 (S.D.N.Y. Nov. 28, 2011); see also Peterson, 2013 WL 3467029 at *11 (plaintiff's “repeated violation of orders of this Court leads to the inexorable conclusion that no sanction short of dismissal would effectively address her conduct”); Martin, 2010 WL 1948597 at *2 (“The fact that plaintiff was warned that noncompliance would result in dismissal of her claims and chose not to comply illustrates that lesser sanctions would be insufficient”).
Lesser sanctions also cannot be expected to have the requisite effect given that Plaintiff has acted willfully (as discussed below) and persisted in his course of conduct. And, as Plaintiff is proceeding in forma pauperis, financial sanctions would be unavailing. See Juliao v. Charles Rutenberg Realty, Inc., No. 14-CV-0808, 2018 WL 4502172, at *5 (E.D.N.Y. Sept. 20, 2018) (adopting Report And Recommendation's reasoning that “plaintiff proceeds in forma pauperis, thus, monetary sanctions would be meaningless”); Lediju v. New York City Department Of Sanitation, 173 F.R.D. 105, 112 (S.D.N.Y. 1997) (“Since plaintiff ... is proceeding in forma pauperis, monetary sanctions would have no effect”). Accordingly, this factor weighs in favor of dismissal.
6. The Factors Taken Together Countenance Dismissal
Each of the five factors weighs in favor of dismissal. Taking the factors together, in the context of the entirety of this case, the Court finds that dismissal pursuant to Rule 41(b) is called for.
B. Dismissal Is Warranted Under Rule 37(b)(2)(A)
As noted above, the factors considered under Rule 37(b)(2)(A) are largely the same as those considered under Rule 41(b). Like the Rule 41(b) factors, the Rule 37 factors include duration, notice, and efficacy of lesser sanctions. But Rule 41(b) also expressly takes into account willfulness. See World Wide Polymers, 694 F.3d at 159. In assessing willfulness, courts consider whether: (1) the orders were clear; (2) the party being sanctioned understood the orders; and (3) the noncompliance was within the party's control. Thompson v. Jamaica. Hospital Medical Center, No. 13-CV-1896, 2015 WL 7430806, at *3 (S.D.N.Y. Nov. 20, 2015); Peterson, 2013 WL 3467029 at *6; Handwerker v. AT&T Corp., 211 F.R.D. 203, 209 (S.D.N.Y. 2002).
As mentioned above, willfulness also is relevant to the Rule 41(b) analysis in that it informs the efficacy of lesser sanctions.
Plaintiff's conduct unquestionably has been willful. He has failed to comply with multiple court orders. He has made loud and clear his disrespect and disregard of the Court's authority. He repeatedly and doggedly has refused to provide the HIPAA authorization, offering easily debunked excuses. All of this was within his control.
The January 6, 2022 order requiring Plaintiff to provide a HIPAA medical release was crystal clear. It clearly and unambiguously required Plaintiff to provide an executed authorization to Defendants. There is no indication in the record that Plaintiff did not understand the order or any of the other of the Court's orders that he has defied. Rather, he simply refused to comply. The order expressly warned Plaintiff of dismissal in the event he failed to comply. And rather than comply or provide any adequate justification for not doing so, Plaintiff has responded to Defendants' motion to dismiss by further declaring his refusal to comply.
Taking into account Plaintiff's willful conduct along with the other relevant factors (i.e., lengthy period of delay and noncompliance, notice of consequences, and inefficacy of lesser sanctions), and with due consideration for the entirety of events in the case, the Court finds that dismissal with prejudice is warranted under Rule 37(a)(2)(B).
CONCLUSION
For the foregoing reasons, I recommend that Defendants' motion be GRANTED and that judgment be entered dismissing Plaintiff's claims with prejudice.
DEADLINE FOR OBJECTIONS AND PRESERVATION OF APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.