Toliver v. Dept. Of Corrections N.Y.C. et al

Filing 62

MEMORANDUM AND ORDER: Based on all of the considerations set forth above, thedefendants application for an order dismissing this action as asanction for the plaintiffs failure to comply with a discoveryorder is denied. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 4/10/2012) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MICHEL TOLIVER,
: 10 Civ. 5803 (LTS) (JCF)
:
Plaintiff,
:
MEMORANDUM
:
AND ORDER
- against :
:
DEPT. OF CORRECTIONS N.Y.C.,
:
COMMISSIONER OF THE DEPT. N.Y.C., :
CHIEF OF THE DEPT. N.Y.C., WARDEN :
OF G.R.V.C., OFFICER REMY,
:
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Michel Toliver brings this action pro se, alleging that
excessive force was used against him while he was incarcerated at
the George R. Vierno Center (“G.R.V.C.”) on Rikers Island in May
2010.

Mr. Toliver has sued the New York City Department of

Correction (“DOC”), the City of New York (“the City”), DOC Warden
K. Mulvey, and DOC Officer Remy.

The defendants have submitted a

letter motion seeking to dismiss the action pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure on the basis of the
plaintiff’s failure to prosecute and his failure to abide by a
discovery order.

For the reasons that follow, the motion is

denied.
Background
The plaintiff filed this action on August 2, 2010, and service
1

was effected thereafter.

On December 9, 2011, the defendants

served the plaintiff with their first set of interrogatories and
document requests pursuant to Rules 33 and 34 of the Federal Rules
of Civil Procedure. Mr. Toliver responded by asserting that he had
already sent the defendants a Second Amended Complaint, but he did
not provide the requested discovery responses.

(Letter of Michel

Toliver dated Dec. 12, 2011).
On January 17, 2012, the defendants requested that this case
be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the plaintiff’s refusal to prosecute his case and
participate in discovery.

Alternatively, the defendants sought to

compel the plaintiff to respond to the defendants’ interrogatories
and document requests.

On January 19, 2012, in response to the

defendants’ request, I ordered that, “[p]laintiff shall produce all
requested documents and answer all interrogatories no later than
February 15, 2012, failing which his complaint will be dismissed.”
(Memorandum Endorsement dated Jan. 17, 2012).

The plaintiff did

not comply with the order by the deadline.
On February 24, 2012, the defendants requested by letter that
this case be dismissed due to the plaintiff’s failure to produce
all requested documents and answer all interrogatories as ordered.
(Letter of Joseph Marutollo dated Feb. 24, 2012).

In a letter

dated February 27, 2012, Mr. Toliver opposed the application,
2

stating that he had complied with my “January 17, 2010” [sic] order
and that he had postal receipts to demonstrate this. At that time,
he did not attach the receipts, nor did he submit copies of the
interrogatory answers and documents that he purportedly provided in
response to the defendants’ discovery requests.

However, in a

document dated March 9, 2012 and received by the Court on March 28,
Mr. Toliver provides what he characterizes as his “second” answer
to interrogatories.

(Second Handwritten Answer to Interrogatories

by Plaintiff (“Interrog. Ans.”)).

He also implies that he has no

documents responsive to the defendants’ document requests because
any such documents were lost during a cell search on February 29,
2012.

(Interrog. Ans. at 1-2).

Discussion
Rule 16(f) of the Federal Rules of Civil Procedure provides
that

“the

authorized

court
by

may

Rule

issue

any

just

orders,

37(b)(2)(A)(ii)-(vii),

if

including
a

party

those
or

its

attorney . . . fails to obey a scheduling or other pretrial order.”
Rule 37(b)(2)(A), in turn, authorizes dismissal of the action as a
sanction.

Rule 41(b) provides in pertinent part 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.”
Dismissal is a harsh remedy that is only appropriate in
3

extreme circumstances.

Spencer v. Doe, 139 F.3d 107, 112 (2d Cir.

1998); Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993).
When the plaintiff is proceeding pro se, the court should be
particularly hesitant to dismiss the action on the basis of a
failure to follow proper procedures. See Spencer, 139 F.3d at 112.
Nevertheless, “litigants, including pro ses, have an obligation to
comply with court orders.

When they flout that obligation they,

like all litigants, must suffer the consequences of their actions.”
McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121,
124 (2d Cir. 1988).
In determining whether dismissal is appropriate, courts
consider:
(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.
Spencer, 139 F.3d at 112-13 (citations omitted); see also Peart,
992 F.2d at 461 (citations omitted).
The threshold question here is whether Mr. Toliver in fact
complied

with

materials.

my

order

and

produced

I find that he did not.
4

the

requested

discovery

Defendants’ counsel has

represented that the plaintiff did not respond to the discovery
demands prior to the end of March.

Mr. Toliver’s bald assertions

to the contrary are unpersuasive.

He has not proffered the mail

receipts he allegedly obtained, and it is unclear in any event how
such a receipt would prove the contents of the mailing.

I do not

consider Mr. Toliver’s allegations to be credible, and I find that
he did not comply with my January 17, 2012 Order.
proceed

to

consider

the

factors

relevant

to

I will therefore
the

choice

of

sanctions.
The duration of the delay in this case is modest.

While it

has been more than three months since the defendants served their
interrogatories and document requests, the plaintiff missed the
court-imposed deadline for responding by a few weeks.
Mr. Toliver did receive explicit notice of the consequences of
his failure to cooperate in discovery.

I advised him in my Order

dated January 19, 2012 that failure to comply would result in
dismissal.

Moreover, Mr. Toliver acknowledges having received my

order as well as the defendants’ motion and thus does not dispute
that he was notified of the consequences of his continued failure
to cooperate in discovery.
Perhaps most important, the delay created by the plaintiff’s
initial refusal to cooperate with discovery requests has caused

5

minimal prejudice.

Although the defendants were put to the burden

of filing letter motions, they ultimately obtained the plaintiff’s
responses.
A

balancing

between

the

Court’s

interest

in

efficient

adjudication and the plaintiff’s interest in having his day in
court favors permitting the case to proceed.

As long as Mr.

Toliver does not engage in a pattern of disregarding his discovery
obligations and the Court’s orders, his delay in this case has not
had a significant impact on the progress of the litigation.
Finally, there are sanctions short of dismissal that would be
appropriate here.

First, because Mr. Toliver has not produced

documents, he shall be precluded from introducing at trial or in
response to any motion any document that falls within the scope of
the defendant’s document request.

Second, the plaintiff is warned

that any further failure to comply either with his discovery
obligations or with the Court’s orders will result in an assessment
of costs against him or dismissal of this action or both.
Conclusion
Based on all of the considerations set forth above, the
defendants’ application for an order dismissing this action as a
sanction for the plaintiff’s failure to comply with a discovery
order is denied.

6

SO ORDERED.

AMES C. FRANCIS IV
ITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
April 10, 2012

Copies mailed this date:
Michel Toliver
10-A-4565
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
Joseph A. Marutollo, Esq.
Assistant Corporation Counsel
100 Church street
New York, New York 10007
Ronald Zapata, Pro Se Office

7