Toliver v. Dept. of Corrections et al

Filing 134

REPORT AND RECOMMENDATIONS re: 54 Amended Complaint, filed by Michel Toliver. For the reasons set forth above, I recommend that the defendant's motion be granted and the action be dismissed. Pursuant to 28 U.S.C. § 636(b) (1) and Rul es 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with ext ra copies delivered to the chambers of the Honorable Sidney H. Stein, Room 1010, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 6/23/2014(Signed by Magistrate Judge James C. Francis on 6/4/2014) Copies Mailed By Chambers (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MICHEL TOLIVER,
: 10 Civ. 5806 (SHS) (JCF)
:
Plaintiff,
:
REPORT AND
:
RECOMMENDATION
- against :
:
THE CITY OF NEW YORK, COMMISSIONER :
OF THE DEPT. OF CORRECTIONS, CHIEF :
OF THE DEPT. OF CORRECTIONS,
:
WARDEN OF G.R.V.C., D.O.C. CAPTAIN :
PRESSLEY # 1176, D.O.C. CAPTAIN
:
BANKS #819, D.O.C. OFFICER BURTON :
# 14371, D.O.C. OFFICER McARDLE
:
# 17893
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
TO THE HONORABLE SIDNEY H. STEIN, U.S.D.J.:
Michel Toliver brings this action pro se pursuant to 42 U.S.C.
§ 1983 against Captain Pressley, Captain Banks, Correction Officer
Bunton1, and Correction Officer McArdle.2

Mr. Toliver alleges that

the defendants violated his civil rights by subjecting him to
excessive force, failing to provide for his medical needs, and
destroying his property, all while he was detained at George R.
Vierno Center on Rikers Island in May 2010.
Honorable

Sidney

Recommendation

H.

and

Stein,

granted

U.S.D.J.,
summary

In February 2014, the

adopted

judgment

in

my

Report

favor

of

and
the

1

Mr. Toliver has referred to this defendant variously as
“Burton,” “Burtton,” “Buntton,” and “Bentton.”
2

The parties have not provided the first names of the
individual defendants.
1

defendants on all claims except the claims of excessive force
brought against defendant Bunton under federal and state law.
(Order dated February 11, 2014). Correction Officer Bunton has now
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. For the reasons that follow,
I recommend that the motion be granted.
Background
Following the Court’s determination granting partial summary
judgment, I issued an order on February 13, 2014, establishing a
schedule for submission of the pretrial order.

Pursuant to that

schedule, counsel was to submit the defendant’s portion of the
pretrial order by February 28, 2014, leaving blank those sections
requiring the plaintiff’s input; the plaintiff was to complete,
sign, and return the pretrial order to defendant’s counsel by March
14, 2014; and defendant’s counsel was to submit the final version
to the Court by March 21, 2014.

(Order dated Feb. 13, 2014).

On

March 21, 2014, defendant’s counsel advised the Court that he had
sent the draft pretrial order to the plaintiff as directed but had
never received Mr. Toliver’s completed portion.

(Letter of Joshua

J. Lax dated July 31, 2013 (sic), electronically filed March 21,
2014). Accordingly, I ordered the plaintiff to provide defendant’s
counsel with his sections of the pretrial order by April 15, 2014,
2

“failing which the complaint will be dismissed.”

(Memorandum

Endorsement dated March 24, 2014).

Instead, he

He never did so.

sent a letter on or about April 1, 2014, requesting additional time
to submit filings in this case and in another one.

I denied that

application on the basis that he had been granted ample time to
comply.

(Memorandum Endorsement dated April 10, 2014).

When

defendant’s counsel filed the instant application (Letter of Joshua
A. Lax dated April 22, 2014), I directed the plaintiff to respond
by May 9, 2014, and indicated that no further extensions would be
permitted.

(Memorandum Endorsement dated April 24, 2014).

The

only other communication I received from Mr. Toliver was a letter
dated May 1, 2014, complaining that he could not respond to the
Court’s directives because his mail was being withheld from him by
the correctional facility where he is now incarcerated. (Letter of
Michel Toliver dated May 1, 2014).
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 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
3

it.”
Dismissal is a harsh remedy that is only appropriate in
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, “all 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).

4

The duration of the delay in this case is not insignificant.
It has been more than three months since Mr. Toliver was required
to submit his portion of the pretrial order and almost a month
since he was to respond to the defendant’s application.
Mr. Toliver received explicit notice of the consequences of
his

failure

to

meet

his

obligations.

I

advised

him

in

my

Memorandum Endorsement dated March 24, 2014 that failure to comply
would result in dismissal.

Moreover, the plaintiff does not

dispute that he was notified of the consequences of his continued
failure to cooperate in producing the pretrial order.

See Dodson

v. Runyon, 957 F. Supp. 465, 470 (S.D.N.Y. 1997) (pro se plaintiff
failed to respond to motion to dismiss and so failed to dispute
that he was notified of consequences of failure to prosecute),
aff’d, 152 F.3d 917 (2d Cir. 1998).
The delay created by the plaintiff’s refusal to cooperate in
drafting the pretrial order is clearly prejudicial.

Correction

Officer Bunton is unable to prepare for trial without knowing what
evidence and witnesses the plaintiff intends to proffer, yet this
defendant still continues to incur the costs of organizing and
preserving evidence dating to 2010.
A

balancing

between

the

Court’s

interest

in

efficient

adjudication and the plaintiff’s interest in having his day in

5

court must, in this instance, favor dismissal. While one case more
or less has little impact on the Court’s docket, Mr. Toliver’s
interest in having his day in court is outweighed by his failure to
comply with his obligations under the Federal Rules. See Lediju v.
New York City Department of Sanitation, 173 F.R.D. 105, 111-12
(S.D.N.Y. 1997); Lukensow v. Harley Cars of New York, 124 F.R.D.
64, 67 (S.D.N.Y. 1989).
No sanction short of dismissal would be appropriate here.

In

a case where a party’s delay has caused the adversary only to incur
expenses, monetary sanctions may be sufficient.

But here, in

addition to incurring the cost of moving for sanctions, the
defendant has also suffered prejudice to his ability to prepare for
trial.
Finally, the plaintiff’s suggestion that his failure to comply
is attributable to interference with his mail is not credible.
This is an excuse he has offered each time he has failed to meet a
deadline in this case and in the numerous other cases he has filed
in this Court.

Notably, prison authorities do not appear to have

interfered with the letters in which Mr. Toliver complains about
the purported interference.

Furthermore, although the plaintiff

was able to communicate with the Court about his inability to meet
his deadline here, he never included in those communications the

6

draft pretrial order he was supposed to provide.

In short, I find

his complaints of interference with his mail to be pretextual.
Conclusion
For

the

defendant's

reasons
motion

be

Pursuant to 28 U.S.C.
the

Federal

fourteen

(14)

Rules

set

granted

above,
and

I

the

recommend
action

be

that

the

dismissed.

636(b) (1) and Rules 72, 6(a), and 6(d) of

§

of

forth

Civil

Procedure,

the

parties

shall

have

days from this date 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 Sidney H. Stein, Room 1010, and to the
chambers of the undersigned, Room 1960, 500 Pearl Street, New York,
New York 10007.

Failure to file timely objections will preclude

appellate review.
Respectfully submitted.

O

('.\Jlll,A

~v ':j;_~~ {V7

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
June 4, 2014

Copies mailed this date:
Michel Toliver
10-A-4565
Five Points Correctional Facility
State Route 96
P.O. Box 119
Romulus, NY 14541

7

Jonathan J. Lax, Esq.
Assistant Corporation Counsel
100 Church Street
New York, New York 10007

8