Irvine v. City of Syracuse et al
ORDER - Defendants' motion to dismiss for failure to prosecute and supplemental motion to dismiss for failure to prosecute, dkt. #s 73, 77, are hereby DENIED. The Plaintiff is hereby WARNED THAT FAILURE TO PARTICIPATE IN DISCOVERY AS DIRECTED BY THE COURT COULD LEAD THE COURT TO DISMISS THE CASE. IT IS SO ORDERED. Signed by Senior Judge Thomas J. McAvoy on 11/21/2017. (Copy served via regular mail)(jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ALEXANDER J. CAZZOLLI, et al.,
Thomas J. McAvoy, SR. U.S.D.J.
Before the Court is Defendants’ motion to dismiss for failure to prosecute and
failure to follow a discovery order. See dkt. # 73. The parties have briefed the issues and
the Court has determined to decide the motion without oral argument.
In this case, Plaintiff alleges that Defendants, two Syracuse Police Officers, used
excessive force when arresting him on May 11, 2013. See Complaint, dkt. # 1. Plaintiff
contends that the officers failed to identify themselves when they arrived at the scene of
his arrest, and he fled. Id. Plaintiff fell down, and two officers jumped on him and tackled
him to the ground. Id. They forced his hands behind his back, “nearly dislocating his
shoulders.” Id. These officers then began to knee Plaintiff in his side. Id. After about a
dozen such strikes, they handcuffed him. Id. While one officer called in the arrest to
supervisors, the other officer punched Plaintiff in the head and face while kneeling on his
back. Id. Plaintiff alleges that the officers handcuffed him so tightly that he suffered
permanent nerve damage in his wrists. Id. He also allegedly suffered pulled muscles,
sprained ribs, a chest wall contusion, a swollen spleen, and other injuries. Id. Plaintiff
further contended that the officers who took him to jail ignored serious medical needs that
he faced, causing him additional and serious pain. Id.
Plaintiff filed his complaint on December 24, 2014, along with a motion for leave to
proceed in forma pauperis. See dkt. # 2. After Plaintiff filed the proper paperwork, on
April 22, 2015 Magistrate Judge David E. Peebles gave the case a preliminary reading
and issued a Report-Recommendation that proposed that the Cour dism iss the claims
against all Defendant except the moving Defendants here. See dkt. # 9. The Court
adopted the Report-Recommendation on May 19, 2015. See dkt. # 10. Defendants filed
a motion to dismiss after Plaintiff served the Complaint. See dkt. # 22. The Court granted
the motion in part and denied it in part on June 9, 2016. See dkt. # 33. T he Court
dismissed Plaintiff’s medical indifference claim, but permitted Plaintiff’s excessive-force
claim against the moving Defendants to continue. Id. Defendants answered the
Complaint on July 25, 2016.
After the parties engaged in discovery and the Magistrate Judge addressed various
discovery disputes, the Defendants on August 7, 2017 filed the instant motion to dismiss
for failure to prosecute and failure to obey discovery orders See dkt. # 73. When Plaintiff
did not reply to the motion by the deadline set by the Court, Defendants filed a
supplemental motion seeking dismissal. See dkt. # 77. Plaintiff responded to the motion,
though after the August 25, 2017 deadline set by the Court. See dkt. # 80. Defendants
responded to this filing by filing an affidavit with the Court that pointed out the lateness of
the filing and again sought dismissal for failure to obey a Court order.
Defendants seek dismissal pursuant to Federal Rules of Civil Procedure 41(b) and
37(b)(2). Rule 41(b) 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). “Involuntary dismissal for a plaintiff’s failure to
prosecute is a matter committed to the discretion of the trial court[.]” Colon v. Mack, 56
F.3d 5, 7 (2d Cir. 1995). Still, “the district court’s discretion is circumscribed.” Coronado
v. LeFevre, 173 F.3d 843, 843 (2d Cir. 1999). “Rule 41(b) dism issals are a ‘harsh remedy’
that are ‘appropriate only in extreme circumstances.’” Spencer v. Doe, 139 F.3d 107, 112
(2d Cir. 1998) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). Courts should be
especially hesitant to dismiss a case brought by a pro se plaintiff based on “‘procedural
deficiencies.’” Id. (quoting Lucas, 84 F.3d at 535). A court considering a motion under
Rule 41(b) applies five factors:
(1) the duration of the plaintiff’s failure to comply with the court order; (2) whether
the 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.
Id. at 112-113. “[N]o factor is dispositive,” and the court “is not required to discuss the
factors on the record,” though a court deciding to dismiss a case stands a better chance of
avoiding reversal by providing “‘the appellate court . . . the benefit of the district court’s
reasoning.’” Id. at 113 (quoting Lucas, 84 F.3d at 535).
Federal Rule of Civil Procedure 37(b)(2) permits a court to impose sanctions,
including dismissal of the action, when a party “fails to obey an order to provide or permit
discovery[.]” FED. R. CIV. P. 37(b)(2)(A). “‘[A]ll litigants, including pro ses, have an
obligation to comply with court orders.’” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298,
302 (2d Cir. 2009) (quoting Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990)). “Pro se
litigants, though generally entitled to ‘special solicitude’ before district courts, are not
immune to dismissal as a sanction for noncompliance with discovery orders.” Id. (quoting
Trestman v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)). Such
dismissals require that “‘a warning has been given that non-compliance can result in
dismissal.’” Id. (quoting Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir.
1994)). Because of the harsh nature of dismissal as a sanction, that “‘remedy [is] to be
used only in extreme situations, and then only when a court finds ‘wiffulness, bad faith, or
any fault’ by the non-compliant litigant.” Id. (quoting Bobal v. Rensselaer Polytechnic Inst.,
916 F.2d 759, 764 (2d Cir. 1990)). Courts use f our factors in making this determination:
“(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 has been warned of the consequences of .
. . non-compliance.”
Id. (quoting Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)).
Defendants seek dismissal pursuant to both Rule 41(b) and 37(b)(2). The Court
will address each in turn.
Defendants argue that Plaintiff’s conduct in this case has been “indicative of a
failure to prosecute,” as exemplified by his recent “neglect” of the deadline established in
this case for responding to Defendants’ document demands and interrogatories.
Defendants made their discovery demands in January 2017, and Plaintiff had provided
only a HIPPA authorization, even after a court order directed him to respond to the filings.
Supplemental to filing their initial motion, Defendants informed the Court that Plaintiff had
answered their interrogatories, but had still failed to respond to a request for production of
documents. In response, Plaintiff does not deny that he has failed to respond to all of
Defendants’ discovery requests. Instead, he argues that, as a pro se Plaintiff who is
presently incarcerated, he lacks both the skill and the opportunity to comply with discovery
demands. He asserts that he was not made aware of the deadline for responding to
Defendants’ motion and that he has been unable to obtain perm ission to make copies of
certain records. In his earlier response to Defendants’ motion to compel, Plaintiff alleged
that he had not intentionally withheld any document, but that he lacked the knowledge or
failed to fully understand many of the questions asked him in discovery. See dkt. # 69.
The Court will deny the motion in this respect. Defendants address only one of the
factors listed above, the length of delay in Plaintiff’s failure to provide certain discovery
requests. While the Court agrees that Plaintiff has been dilatory in responding to those
requests, the Court also notes that the Order that directed Plaintif f to respond to discovery
demands was entered on the docket on July 12, 2017, and provided Plaintiff 14 days to
comply. Defendants filed their motion to dismiss for failure to prosecute on August 7,
2017. A delay of this sort does not strike the Court as so dramatic as to require the drastic
sanction of dismissal, particularly because the Defendants do not even attempt to argue
that they have been prejudiced by these delays or explain what ongoing prejudice they
face. Moreover, Defendants make no suggestion that Plaintiff was put on notice that
failing to comply with the Order in question could lead to the sanction of dismissal.1
Plaintiff proceeds pro se and is incarcerated. From the record and the papers provided by
the Defendants, it is clear that Plaintiff intends to prosecute the case and is making efforts
to do so, despite the limitations presented by his situation.
Thus, while the Court will warn the Plaintiff that he should not delay in answering
the discovery requests which are still outstanding. Failure to respond in a timely fashion
to discovery requests could lead to sanctions, up to and including dismissal of the case,
the Court will deny the Defendants’ motion in this respect. Plaintiff should immediately
comply with the Magistrate Judge’s July 12, 2017 Order by responding to the document
requests as directed by the Magistrate Judge, to the extent that he possesses any such
documents. Those documents include: any photographs and/or videotapes of the incident
giving rise to the lawsuit; itemized bills concerning Plaintiff’s damages; any written or
recorded statements of witnesses; any expert witness reports or written statements; any
documents that reflect communications by the Plaintiff or his attorney to any third parties
concerning the incident, including any communication with members of the media; and
any copies of statements made by the Defendants, or their agents, servants, employees
or representatives. If Defendants does not possess these documents, he should inform
the Defendants of that fact in responding to the discovery request.
Defendants have filed additional motions and papers pointing out that Plaintiff has
failed to meet deadlines to respond to this motion. The Court finds that these failings are
not grounds for dismissing the case, particularly because dismissal would be an overly
harsh sanction for Plaintiff’s conduct. Plaintiff is reminded to comply with the Court’s
orders in a timely fashion. The Court will construe Plaintiff’s response in opposition to
Defendants’ motion as containing a request for an extension of time to respond to
Defendants’ motion, and grant that motion. See dkt. # 80. The Court will deny
Defendants’ supplemental motion to dismiss. See dkt. # 77.
To the extent that they have not yet done so, the parties shall also schedule a
deposition of the Plaintiff by December 31, 2017.
Defendants argue that the Court should dismiss the action because Plaintiff has
failed to provide responses to discovery demands and interrogatories. Defendants offer
little by way of argument for why the Court should grant their motion. Most of their brief
simply recites the standards articulated above for Rule 37 motions.
Here, it is clear that Plaintiff has not participated fully in discovery; the Magistrate
Judge ordered Plaintiff to answer discovery requests, but Plaintiff had not done so by the
time Defendants filed to motion. While the conduct appears to be somewhat willful, it is
also clear to the Court from the writings in the file that Plaintiff may have difficulty both in
accessing materials necessary to complete the discovery requests and may not fully
understand the process of litigating the case. Nothing indicates that he has acted in bad
faith. Moreover, as explained above, the period of noncompliance with the latest order
was brief before Defendants filed their motion. Finally, nothing in the record indicates that
Plaintiff was warned that failing to cooperate with discovery could lead to dismissal of the
The factors therefore do not favor dismissal, and the Court will deny the motion in
this respect as well. The Court warns the Plaintiff, however, that failure to participate in
discovery as directed and ordered by the Court could lead to sanctions, including
For the reasons stated above, the Defendants’ motion to dismiss for failure to
prosecute and supplemental motion to dismiss for failure to prosecute, dkt. #s 73, 77, are
hereby DENIED. The Plaintiff is hereby WARNED THAT FAILURE TO PARTICIPATE IN
DISCOVERY AS DIRECTED BY THE COURT COULD LEAD THE COURT TO DISMISS
IT IS SO ORDERED.
Dated:November 21, 2017
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