Alli v. Warden of A.R.N.D.C. (Rikers Island) et al

Filing 77

MEMORANDUM DECISION AND ORDER adopting 70 Report and Recommendations, denying 60 Motion to Appoint Counsel filed by Umar Alli, granting 72 Motion to Dismiss/Lack of Prosecution,, filed by Daniel DiPerri #18192, Warden of O.B.B.C. ( Riker's Island), Ernest Brown #1335, Warden of R.N.D.C., Duffy, Aadam Glenn #18616, Department of Correc Schriro, Warden of R.N.D.C., Bailey, Warden of G.R.V.C.(Rikers Island), Warden of G.R.V.C. R Agro, Deputy Warden C. Lemon #109, Si ngutary, Brian Rees #17045, City of New York, Captain E. Vega, Warden of A.R.N.D.C. (Rikers Island), Security Captain of G.R.V.C., Lemon, granting 53 Motion to Dismiss/Lack of Prosecution,, filed by Daniel DiPerri #18192, Warden of O.B.B.C. (Riker's Island), Ernest Brown #1335, Warden of R.N.D.C., Duffy, Aadam Glenn #18616, Department of Correc Schriro, Warden of R.N.D.C., Bailey, Warden of G.R.V.C.(Rikers Island), Warden of G.R.V.C. R Agro, Deputy Warden C. Lemon #109, Singutary, Brian Rees #17045, Captain E. Vega, City of New York, Warden of A.R.N.D.C. (Rikers Island), Security Captain of G.R.V.C., Lemon. Plaintiff's application for the appointment of counsel is DENIED. Defendants' motion to dismiss is GRANTED. The clerk of the Court is directed to close the motions at ECF Nos. 53, 60, and 72 and this case. (Signed by Judge George B. Daniels on 7/15/2014) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UMARALLI,
Plaintiff,

-againstWARDEN OF R.N.D.C. (RIKERS
ISLAND), et al.,
Defendants.

USDC SD!\TY
DOCUMENT
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I DAI'E FILED:

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MEMORANDUM DECISION
AND ORDER
12 Civ. 3947 (GBD)(MHD)

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GEORGE B. DANIELS, District Judge:
Prose Plaintiff Umar Alli filed this lawsuit against the New York City Department of

Correction as well as several individual defendants, alleging that he was the victim of excessive
force and denied due process under 42 U.S.C. § 1983 while in custody. Defendants moved to
dismiss the complaint under Federal Rules of Civil Procedure 37 (d) and 41 (b) on the grounds
that Plaintiff has failed to prosecute this action. Plaintiff opposed the motion and simultaneously
made an application for the appointment of pro bono counsel. Consistent with Magistrate Judge
Dolinger's Report and Recommendation ("Report"), and given Plaintiffs continued failure to
comply with the directives in the Report, Plaintiffs application is DENIED and Defendants'
motion to dismiss is GRANTED.
The Court may accept, reject or modify, in whole or in part, the findings and
recommendations set forth within the Report. 28 U.S.C. § 636(b)(l). When there are objections
to the Report, the Court must make a de nova determination of those portions of the Report to
which objections are made. Id.; see also Rivera v. Barnhart, 432 F. Supp. 2d 271, 273 (S.D.N.Y.
2006). When no objections to a Report are made, the Court may adopt the Report if "there is no
clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253
(S.D.N.Y. 2005) (citation omitted). Neither party filed objections to the Report.

Background

On April 30, 2013, Defendants served discovery requests on Plaintiff and advised him
that he had thirty days to respond. (Report at 3). Thereafter, Defendants followed up with
Plaintiff multiple times seeking responses to their requests. (Id at 4). On August 15, 2013,
Judge Dolinger issued an order that directed Plaintiff to respond to the requests by August 30,
2013. Defendants and Judge Dolinger separately warned Plaintiff that his continued failure to
respond could lead to dismissal of this action. (Id. at 4-5). On September 30, 2013, Defendants
moved to dismiss the complaint under Federal Rules of Civil Procedure 37(d) and 41(b) for
failure to serve a response to interrogatories or document requests and failure to prosecute,
respectively. Plaintiff filed an untimely opposition to the motion, and simultaneously made an
application for the appointment of pro bono counsel. 1
The Report and Recommendation

The Report recommended that this Court deny Plaintiffs application for appointment of
pro bono counsel without prejudice. 2 In addition, the Report ordered Plaintiff to comply with
Defendants' discovery requests by June 20, 2014 to avoid facing "virtually certain dismissal." 3
(Id at 10). Thus, the Report did not recommend dismissal unless Plaintiff failed to comply with

1

2

3

Although Plaintiff asserted that he complied with the discovery requests on October 6, 2013, (Pl.'s Opp'n Mem. at
3), Defendants contend that Plaintiffs responses are inadequate because they fail to provide substantive
information or documentation and because Plaintiff indicated that he would provide the information at some
unspecified future date. This Court agrees with Defendants.
The Report explained that it is not clear at this stage whether pro bono counsel should be appointed because '\ve
do not have a clear picture of the facts underlying this case and therefore cannot make a merits assessment of
[P]laintiffs claim." (Report at 18); see also Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Gaines
v. New York City Dep't of Corr., No. 10 Civ. 189, 2010 WL 4537040, at *2 (S.D.N.Y. Nov. 3, 2010) ("In
deciding whether to appoint counsel, ... the district [court] should first determine whether the indigent's position
seems likely to be of substance.") (quotations omitted).
The order clearly stated that noncompliance would result in dismissal: "Plaintiff is to provide these responses and
documents to [D]efendants by no later than June 20, 2014. Ifhe fails to do this, he will face dismissal of his
complaint." (Report at 17).

2

that order. 4 Plaintiff did not comply. 5 Defendants therefore filed a renewed motion to dismiss
on July 10, 2014. 6 (See Defs.' Second Mot. to Dismiss, ECF No. 72). This Court adopts the
Report and Recommendation. Because Plaintiff has not provided any responses to Defendants'
discovery requests-as required by Judge Dolinger's most-recent order-dismissal of this action
without prejudice is appropriate.
Conclusion

Plaintiffs application for the appointment of counsel is DENIED. Defendants' motion to
dismiss is GRANTED. The clerk of the Court is directed to close the motions at ECF Nos. 53,
60, and 72 and this case.

Dated: New York, New York
July 15, 2014
SO ORDERED:

:VO~

4

Plaintiff was specifically ordered "to serve upon [D]efendants proper responses to their interrogatories and
document requests[,] ... to provide a substantive and complete answer to each interrogatory and document
request, with no objections to be interposed ... [and] to provide [D]efendants with signed releases to obtain his
medical records ... by no later than June 20, 2014." (Report at 17).
On July 1, 2014, Defendants informed Judge Dolinger by letter that despite his order, "[P]laintiff, to date, has not
provided the undersigned with proper responses to [D]efendants' discovery demands." (Letter from Patrick Beath
to Judge Dolinger, dated July 1, 2014, ECF No. 71). The letter goes on to explain that "[t]his failure is especially
stark when contrasted with the fact that [P]laintiff, by letter dated June 2, 2014, and sent to the undersigned in an
envelope postmarked June 21, 2014, sought additional copies of [D]efendants' responses to his discovery
demands, without making any mention of his standing obligation to respond to [D]efendants' discovery requests."

6

Defendants' second motion to dismiss explained that "(t]o date, (P]laintiff has failed to serve upon [D]efendants
proper responses to their interrogatories and document requests." (See Defs.' Mem. of Law in Support of Second
Mot. to Dismiss, ECF No. 74 at 6).

(Id.).

3