Rodriguez v. Griffin et al

Filing 108

ORDER DISMISSING CASE. ORDERED that the Clerk of the Court is instructed to submit a JS-6 (using Statistical Code 18) to the Administrative Offices of the U.S. Courts. The parties are advised that nothing contained in this Order shall be cons idered a dismissal or disposition of the above-entitled action, and the case is subject to reopening for good cause shown. Good cause may be established by a request by either party to reopen the case in the event of Plaintiffs reentry into the United States and ability to complete prosecution of the case. Signed by Magistrate Judge Therese Wiley Dancks on 12/6/2018. (rar, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOSE RODRIGUEZ,
Plaintiff,

9:15-CV-0610
(MAD/TWD)

v.
JEFFREY MCKOY, DR. MIKHAIL GUSMAN,
DR. ANN ANDOLA, DR. BIPIN BHAVSAR,
NANCY ANTHONY, MEGAN MCGLYNN,
AMANDA DEMSHICK, DAVID JACOBS,
ROGER TRAYNOR,
Defendants.

APPEARANCES:

OF COUNSEL:

PAUL, WEISS LAW FIRM
Attorneys for Plaintiff
New York Office
1285 Avenue of the Americas
New York, New York 10019-6064

Robert J. O’Loughlin, Esq.
Karen R. King, Esq.
Ayelet Evrony, Esq.
Erin J. Morgan, Esq.

HON. BARBARA UNDERWOOD
New York Attorney General
Attorney for Defendants
The Capitol
Albany, NY 12224

Matthew P. Reed, Esq.
Konstandinos D. Leris, Esq.
Ass’t Attorneys General

THÉRÈSE WILEY DANCKS
United States Magistrate Judge
ORDER
This action was commenced pro se by Plaintiff Jose Rodriguez on May 19, 2015.
(Dkt. No. 1.) The operative pleading is Plaintiff’s fifth amended complaint, filed on
October 22, 2018, which adds a new Defendant to the action. (Dkt. No. 96.) The fifth
amended complaint names a total of nine Defendants and includes claims for: (1)

deliberate indifference to Plaintiff’s serious medical needs in violation of his Eighth
Amendment rights; (2) retaliatory transfer in violation of his First Amendment rights; and
(3) denial of access to the courts in violation of his First Amendment rights. Id.
Plaintiff’s medical indifference claim arises out of the alleged failure to provide
Plaintiff with adequate medical attention and treatment for a cerebral stroke suffered by
him in 2011 while he was incarcerated in Eastern Correctional Facility.1 Id. at 5-7; Dkt.
No. 1.
Plaintiff’s retaliation claim alleges that on July 5, 2016, he was transferred from
Shawangunk Correctional Facility, where his attorneys were able to meet with him in
person and have unlimited phone calls with him during May and June 2016, to Franklin
Correctional Facility (“Franklin”), which was not easily accessible to his counsel and
family, and where the number and length of his phone calls with counsel was severely
limited in retaliation for his commencement of this lawsuit.
Plaintiff’s access to court claim alleges that as a result of his transfer to Franklin,
and the resulting limitation on attorney visits and restriction of telephone calls with
counsel to one thirty minute call per month, his access to the courts and to his counsel
were restricted in violation of his First Amendment rights.
Prior to the filing of Plaintiff’s fifth amended complaint, the Court learned during
an October 15, 2018, telephone status conf erence with counsel, set for the purpose of

1

Plaintiff’s Eighth Amendment medical indifference claim was included in his first amended
complaint and dismissed as time barred upon initial review by the District Court under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1). (Dkt. Nos. 11, 14.) The order was vacated and the case remanded
by the Second Circuit. (Dkt. No. 22.) Plaintiff was represented by Paul, Weiss, Rifkind, Wharton &
Garrison LLP (“Paul Weiss”) on the appeal, and the firm has continued representing Plaintiff in the case.
Id.; Dkt. Nos. 26-27, 93-94.

2

setting discovery deadlines, that Plaintiff had been deported to the Dominican Republic.
(See Text Order entered 10/15/18; Dkt. No. 102 at 1.) Upon receiving this information,
the Court directed Plaintiff to file a letter brief explaining how the action can go forward
without Plaintiff being present for his deposition and trial, and directed Defendant to file
a responsive letter brief. Id. This case has been held in abeyance by the Court until
the issue of Plaintiff’s case proceeding in light of his deportation has been decided. Id.
The Court has now reviewed and taken under consideration the letter brief s submitted
by counsel for the parties (Dkt. Nos. 102, 105), and Plaintiff’s reply to Defendants’ letter
brief. (Dkt. No. 106.)
The Court notes that Plaintiff was deported to the Dominican Republic on
October 3, 2017, after having been released from prison on September 6, 2017. (Dkt.
No. 102 at 1.) The deportation was based upon an order of removal pending against
Plaintiff since 1999. Id. Plaintiff has made no effort to return to the United States to
prosecute this lawsuit, and his counsel has indicated that because of the deportation
order, it would not be feasible for Plaintiff to reenter the United States and, if he did, he
would be subject to criminal penalties. Id. See 8 U.S.C. § 1326(a)(2) (plaintiff may not
reenter the United States for twenty years after the date of his deportation, absent the
explicit consent of the Attorney General or his or her designee).
Plaintiff’s counsel has taken the position that the action has proceeded apace
since Plaintiff’s deportation, and that Plaintiff should be allowed to proceed with the
litigation by having his deposition taken in the Dominican Republic, either in person or
by video conference, and his trial testimony preserved either by deposition or testimony

3

through video transmission from the Dominican Republic. Id. at 2-5. According to
defense counsel, however, the litigation has proceeded slowly since the deportation,
and there has been no discussion among counsel as to the scheduling and logistics of
Plaintiff’s deposition in the Dominican Republic. (Dkt. No. 105 at 1.) Defense counsel
moreover objects to both having Plaintiff’s deposition testimony taken and his trial
testimony presented via video conference from the Dominican Republic. Id.
Defense counsel has also expressed concern regarding the need for
examination of Plaintiff by medical experts, particularly in light of Plaintiff’s interrogatory
response indicating he is “under continuing medical care and some injuries attributable
to his stroke in 2012 may not yet be identified.” Id. at 2. Plaintiff’s counsel denies that
Plaintiff’s present physical condition is in controversy and argues that, if necessary, an
examination could be arranged to be conducted in the Dominican Republic. (Dkt. No.
106.)
The Court commends Plaintiff’s pro bono counsel for the excellent work they
have done on Plaintiff’s behalf and their willingness to continue to represent Plaintiff in
this action despite the substantial burden created by his deportation to the Dominican
Republic. Nonetheless, considering the logistical difficulties and substantial cost of
continuing with discovery; the logistical difficulties, required technological resources
from the court, and prohibitive cost of trying the case without the Plaintiff in the
courtroom; and the inefficient use of judicial resources in addressing the difficulties and
disputes between the parties that would no doubt arise and require court intervention
and resolution throughout the litigation, including throughout the remaining discovery

4

and at trial, the Court concludes there is no further reason to maintain this action on the
open docket for statistical purposes and directs administrative closure of the case.
ACCORDINGLY, it is hereby
ORDERED that the Clerk of the Court is instructed to submit a JS-6 (using
Statistical Code 18) to the Administrative Offices of the U.S. Courts.
The parties are advised that nothing contained in this Order shall be considered
a dismissal or disposition of the above-entitled action, and the case is subject to
reopening for good cause shown. Good cause may be established by a request by
either party to reopen the case in the event of Plaintiff’s reentry into the United States
and ability to complete prosecution of the case.
The Clerk of the Court is directed to serve a copy of this Order on all parties to
the action.
IT IS SO ORDERED.

Dated: December 6, 2018
Syracuse, New York

5