Phelan v. Cambell et al

Filing 116

MEMORANDUM-DECISION AND ORDER: ORDERED, that the Report-Recommendation and Order (Dkt. No. 111 ) is accepted in its entirety. ORDERED, that denial of plaintiff's motion (Dkt. No. 98 ) to amend the amended complaint is affirmed. ORDERED, that defendants' cross-motions to dismiss the action (Dkt. Nos. 99 , 101 ) are granted. ORDERED, that the case is dismissed. Signed by Judge Norman A. Mordue on 2/8/12. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
gggggggggggggggggggggggggggggggggggggggggggggggggggggggg

KENNETH J. PHELAN,
Plaintiff,
-v-

9:10-CV-540 (NAM/RFT)

N

JAMES CAMBELL, Sheriff of Albany County, individually
and officially;1 DR. JOHN DOE, Medical Doctor at Albany
County Jail, individually and officially; CHRISTINE
MORIARITY, also known as Christine; LORI HORN, also
known as Laurie; DON HOWELL, Correction Officer, Albany
County Jail, individually and officially; ALBANY COUNTY;
ED REMILLARD, Correction Officer, Albany County Jail;
CHIEF MOONEY, Albany County Jail, individually and
officially,
Defendants.
gggggggggggggggggggggggggggggggggggggggggggggggggggggggg

A

APPEARANCES:
Kenneth Phelan
09-A-1183
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
Plaintiff, Pro Se

M

Office of Robert P. Roche
Robert P. Roche, Esq., of counsel
36 South Pearl Street
Albany, New York 12207
Attorney for Defendants Campbell, Howell, Albany County, Remillard, and Mooney
Thuillez, Ford, Gold, Butler & Young, LLP
Donald P. Ford, Jr., Esq., of counsel
20 Corporate Woods Boulevard, 6th Floor
Albany, New York 12211
Attorney for Defendants Moriarity and Horn

Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER

INTRODUCTION
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), brought this pro se action under 42 U.S.C. § 1983. In his
amended complaint (Dkt. No. 4), he claims defendants violated his constitutional rights by
denying him proper medical care, subjecting him to unsanitary living conditions, and denying him
due process.
N

Plaintiff moves (Dkt. No. 98) to amend the amended complaint (Dkt. No. 4). Defendants
cross-move to dismiss the action (Dkt. Nos. 99, 101). Upon referral pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Randolph F. Treece issued a
Report and Recommendation and Order (Dkt. No. 111) denying the motion to amend the
complaint and recommending that the motion to dismiss be granted. Plaintiff filed an objection

A

(Dkt. No. 112). As set forth below, the Court affirms the denial of leave to amend the amended
complaint, accepts the recommendation to grant defendants’ motions to dismiss the action, and
dismisses the case.
PLAINTIFF’S MOTION TO AMEND THE COMPLAINT
This Court reviews Magistrate Judge Treece’s Order denying plaintiff’s motion (Dkt. No.

M

98) to amend the amended complaint under the “clearly erroneous or contrary to law” standard.
28 U.S.C. § 636(b)(1)(A). In reviewing Magistrate Judge Treece’s denial of leave to amend, the
Court observes that the case was commenced on May 10, 2010 and that plaintiff served an
amended complaint (Dkt. No. 4) on June 14, 2010. The Rule 16 Order (Dkt. No. 27) issued on
August 25, 2010 directed that discovery be completed by December 23, 2010 and dispositive
motions be made by March 23, 2011. By text order dated December 10, 2010, Magistrate Judge

-2-

Treece reset the discovery deadline for the sole purpose of allowing certain defendants to depose
plaintiff, and reaffirmed that the “discovery deadline expires in all other respects on December
23, 2010.” On January 21, 2011, Magistrate Judge Treece extended the discovery deadline to
April 15, 2011, and extended the final day to file dispositive motions to May 20, 2011. Plaintiff
made the motion to amend on May 9, 2011, after the close of discovery. In denying leave to
amend, Magistrate Judge Treece noted:
N
A

Here, Plaintiff is asking this Court to add two new defendants and
corresponding claims, and to identify the John Doe Defendant. In effect, this
request would necessitate reopening the already-completed period of
discovery. The Court is unwilling to return to that stage of litigation in an
action that has already seen the discovery deadlines extended and that has
spawned a barrage of discovery-related motions. Further, Plaintiff offers no
explanation, and we cannot fathom one, for why he only recently learned the
identity of the John Doe Defendant, or why he has decided to add two new
defendants at this stage of the lawsuit. Discovery in this action – the means by
which Plaintiff could have learned the identity of his unnamed Defendant –
closed about a month before Phelan filed this Motion to amend.
(Case citations and citations to record omitted.) The record supports Magistrate Judge Treece’s
findings that plaintiff failed to show diligence and good cause for his delay, and that amendment
would prejudice defendants.. The Order denying leave to amend is not clearly erroneous or
contrary to law, nor does it reflect an abuse of discretion. Even if it were to apply the de novo
standard of review, the Court would reach the same conclusion. The Order is affirmed.

M

DEFENDANTS’ MOTIONS TO DISMISS AS SANCTION FOR
PLAINTIFF’S REFUSAL TO BE DEPOSED
This Court conducts a de novo review of Magistrate Judge Treece’s recommendation to
grant defendants’ dismissal motions (Dkt. Nos. 99, 101) as a sanction for plaintiff’s refusal to
submit to a deposition. See 28 U.S.C. § 636(b)(1)(C). The Court adopts the factual background
set forth in Magistrate Judge Treece’s Report and Recommendation and Order, and does not
-3-

repeat it here.
In exercising its discretion to impose a sanction under Rule 37, the Court considers many
factors, including plaintiff’s willfulness in refusing to comply; his reason for noncompliance; the
duration of noncompliance; and whether plaintiff was warned of the consequences of
noncompliance. See Robertson v. Dowbenko, 443 Fed.Appx. 659, 660-61 (2d Cir. 2011). Rule
37 sanctions, including dismissal, may be imposed against a pro se plaintiff, so long as adequate
N

warning has been given. Id. at 660.
In the instant case, Magistrate Judge Treece’s Rule 16 Order advised plaintiff that he must
submit to a deposition and that refusal could result in dismissal. Plaintiff nevertheless repeatedly
objected to being deposed unless he was permitted to depose Campbell. He persisted in this
viewpoint even after Magistrate Judge Treece denied his motion to compel Campbell’s deposition

A

in an Order which this Court affirmed.
Thereafter, in response to another motion by plaintiff, Magistrate Judge Treece issued an
Order advising plaintiff that he could not properly refuse to be deposed, regardless of whether he
was permitted to depose Campbell. The Order clearly directed plaintiff to submit to a deposition
and warned him that “if he refuses to participate in his deposition ... he may be subject to
sanctions, which may include dismissing his case.”

M

Despite this explicit warning, plaintiff persisted in refusing to be deposed, contending that
he had appealed an earlier Order and that the case could not proceed during the appeal. Plaintiff
did not, however, request a stay pending appeal or otherwise seek judicial assistance on this issue,
despite having filed numerous motions, letters, and requests on other topics. Rather, in response
to a notice to depose him, he advised defendants’ counsel: “I would not come if I were you. Save

-4-

yourself a wasted trip. Don’t come.”
In opposition to defendants’ dismissal motion, plaintiff has offered to be deposed.
Plaintiff’s newfound willingness to be deposed does not obviate his prior persistent, willful
refusal to comply with Magistrate Judge Treece’s orders and basic legal process. Nor does his
status as a pro se litigant excuse his purposeful noncompliance with the Court’s orders. As
Magistrate Judge Treece notes, plaintiff is an experienced litigator, yet he has refused to comply
N

with a basic discovery requirement of which he was plainly aware, despite two clear warnings
that refusal could result in dismissal. His insistence on conducting the lawsuit as he saw fit,
rather than as required by the Court and the law, has caused lengthy delay and wasted the time of
the Court and counsel. Magistrate Judge Treece has carried out his duty of solicitude to pro se
plaintiffs, issuing numerous text orders, orders, and notices. Despite the fact that plaintiff now

A

professes to be willing to be deposed, the sanction of dismissal recommended by Magistrate
Judge Treece is appropriate.
CONCLUSION
It is therefore
ORDERED that the Report and Recommendation and Order (Dkt. No. 111) is accepted in
its entirety; and it is further

M

ORDERED that denial of plaintiff’s motion (Dkt. No. 98) to amend the amended
complaint is affirmed; and it is further
ORDERED that defendants’ cross-motions to dismiss the action (Dkt. Nos. 99, 101) are
granted; and it is further
ORDERED that the case is dismissed; and it is further

-5-

ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
February 8, 2012
Syracuse, New York

N
A
M

-6-