Watkins v. The Department of Corrections et al

Filing 115

MEMORANDUM DECISION AND ORDER for 114 Report and Recommendations, 90 Motion to Dismiss/Lack of Prosecution filed by Merchese, Davis, Kurtaj, Mateo, Thompson. Magistrate Judge Netbum's recommendation to dismiss this case under Rule 41(b) is adopted. The Defendants' motion to dismiss for failure to prosecute is GRANTED. The instant action is DISMISSED. The Clerk of the Court is directed to close the motion at ECF No. 90, and this case. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 7/31/2015) (kko)

USDCSDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOCUMENT
ELECTRONICALLY FlLED
DOC#:
11

DATE FILED:

J0L 3 J L01ft

DENNIS WATKINS,
Plaintiff,

.

MEMORANDUM DECISION
AND ORDER

-v-

13 CIV. 3267 (GBD) (SN)
CAPTAIN MARCHESE, et al.,
Defendants.

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GEORGE B. DANIELS, United States District Judge:

Pro se Plaintiff Dennis Watkins brings this action under 42 U.S.C. § 1983 and state law
against the following members of the New York City Department of Correction: Captain
Merchese, Captain Kurtaj, Correction Officer Thompson, Correction Officer Davis, and Doctor
Eugenio Mateo (collectively, the "Defendants"). Plaintiff alleges the Defendants engaged in the
use of excessive force and denied him medical care. (Comp!. at 3, ECF No. 2.) The Defendants
move to dismiss the Plaintiffs complaint under Federal Rule of Civil Procedure 41(b) for failure
to prosecute. (ECF No. 90.) Before this Court is Magistrate Judge Sarah Netburn's June 17, 2015
Report and Recommendation ("Report"), in which she recommended that this Court grant the
Defendants' motion to dismiss. (ECF No. 114.) Magistrate Judge Netburn's recommendation to
dismiss this case is adopted. The Defendants' motion to dismiss for failure to prosecute is hereby
GRANTED.
RELEVANT FACTS
Plaintiff was incarcerated at the Manhattan Detention Center during the incident at issue.
Plaintiff claims that, on or about July 16, 2012, Defendants Merchese, Kurtaj, Davis and
Thompson beat him after he suffered a seizure and left him in a bus that was over 100 degrees
Fahrenheit. Plaintiff also alleges that Defendant Mateo endangered his life by allowing the

officers to move him to the bus following the seizure, despite Defendant Mateo's alleged
awareness of Plaintiffs history of heat stroke, seizures and asthma. (See Report at 2); (see also
Transcript of October 6, 2013 Conference at 16:15-19:12, ECF No. 34.) The instant action was
filed to redress Plaintiffs claimed injuries.
In prosecuting this case, Plaintiff has refused to comply with two sets of court orders: ( 1)
orders to execute medical releases; and (2) orders to be deposed under oath. (See Report at 15.)
First, Plaintiff ignored repeated court orders to complete the requisite medical releases. 1 (Id. at 38.) Second, during his September 9, 2014 deposition, Plaintiff refused to answer any further
questions until certain demands were met, despite two phone calls to Magistrate Judge Netbum's
chambers and her verbal orders to complete the deposition. (Id. at 9-10.)
On October 17, 2014, the Defendants filed the instant motion to dismiss. (See ECF No.
90; Mem. in Support of MTD, ECF No. 92.) In opposition, Plaintiff argues that (i) any delay in
prosecuting his case was due to his incarceration and inability to obtain the services of a notary,
and (ii) his refusal to answer questions at his deposition was due to illness or trauma. (See Opp'n,
ECF No. 98.) Defendants respond that Plaintiff's refusal to sign the medical releases under his
proper name delayed this case, and that the record reflects the failure to complete the deposition
was due to an ongoing "pattern of obstinate obstruction," not illness or trauma. (See Reply at 2-4,
ECF No. 105.) 2
Due to the large volume of Plaintiff's filings in this litigation (and other actions in this
district), Magistrate Judge Netburn issued on order on November 7, 2014 stating that, "unless there

1

On October 7, 2013, Magistrate Judge Netbum ordered that the medical releases be executed; however, Plaintiff did
not produce the releases until his September 9, 2014 deposition. (See Report at 15.)
2

The Defendants' Reply papers note that a separate November 1, 2014 letter filed by Plaintiff in this action also
opposes the instant motion to dismiss. (See ECF No. 101.)

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is an absolute emergency ... an appropriate order responding to letters filed in this case" would
issue "at the beginning of every month." (ECF No. 97.)
STANDARD OF REVIEW
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U .S.C. § 636(b )(1 )(C). 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, 423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions. See Fed. R. Civ.
P. 72(b); 28 U.S.C. § 636(b)(l)(C). The Court need not conduct a de nova hearing on the matter.

See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court
"arrive at its own, independent conclusion" regarding those portions of the Report to which
objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting

Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no party files objections to a
Report, 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) (quotation omitted).
Magistrate Judge Netbum advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Report at 27); see also 28 U.S.C.
§ 636(b)(l); Fed. R. Civ. P. 72(b). No party objected to the Report. As there is no clear error on
the face of the record, this Court adopts the Report's recommendation to dismiss this case.
LEGAL STANDARD FOR FAIL URE TO PROSECUTE
"The primary rationale underlying a dismissal under [Rule] 41 (b) is the failure of [a]
plaintiff in his duty to process his case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d
37, 43 (2d Cir. 1982). This obligation "is imposed because of the strong policy favoring prompt

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disposition of cases." Id. Rule 4l(b) authorizes the district court to dismiss an action "[i]fthe
plaintiff fails to prosecute or to comply with ... a court order." Fed. R. Civ. P. 41 (b ). "The fact
that [a] plaintiff is incarcerated does not absolve him of the responsibility to prosecute his lawsuit
in a diligent manner." Norfleet v. City of New York, 12 Civ. 4637(ER), 2015 WL 765948, at *4
(S.D.N.Y. Apr. 7, 2014) (quotation omitted).
In Baptiste v. Sommers, the Second Circuit held that district courts must weigh five factors
when deciding whether to dismiss an action under Rule 41 (b ): "(1) the duration of the plaintiff's
failure to comply with the court order, (2) whether 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 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." 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles,
84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive in this inquiry. Id. The court
need not make "exhaustive factual findings," but should support its decision with adequate
reasoning. See id. at 217. Even where a plaintiff fails to comply with a court order that includes
notice of possible dismissal, "the court must still make a finding of willfulness, bad faith, or
reasonably serious fault by evaluating" the relevant five factors. Id. at 217 (citation and internal
quotation marks omitted).
DISMISSAL UNDER RULE 4l(B)
In this case, all five Baptiste factors weigh in favor of dismissal.

First, dismissal is

warranted given the protracted duration of Plaintiff's failure to comply with court orders and his
dilatory tactics in litigating this case. Eleven months passed from Magistrate Judge Netbum's
October 7, 2013 order to execute the medical releases and the eventual production of these

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documents on September 9, 2014. Moreover, midway through his deposition, Plaintiff elected not
to answer any further questions even though Magistrate Judge Netburn specifically ordered him to
complete this proceeding. The approximately year-long duration of the failure to prosecute is the
result of Plaintiffs deliberate and "steadfast decision to be contumacious," and cannot be excused
by any feigned illness or trauma. 3 (See Report at 16-17.)
Second, Plaintiff persisted in his refusal to meet his discovery obligations despite numerous
warnings that his actions could lead to dismissal of his case. Plaintiff was afforded ample notice
of this possibility in the form of six written orders4 as well as verbal warnings during his
deposition. 5 Accordingly, this factor clearly weighs in favor of dismissal.
Third, the record shows that Plaintiff has caused (and would continue to cause) prejudice
to the Defendants, which further weighs in favor of dismissal. "Prejudice to defendants resulting
from unreasonable delay may be presumed, but in cases where delay is more moderate or
excusable, the need to show actual prejudice is proportionally greater." Lyell Theatre Corp., 682
F.2d at 43 (internal citations omitted). Here, the delay was neither moderate nor excusable. See
id.

Instead, as Magistrate Judge Netburn correctly recognizes, Plaintiffs dilatory tactics have

hindered the Defendants' abilities "to defend against these claims and clear their names and
professional reputations given the serious nature of the charges they face."

(Report at 19.)

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(See Declaration ofDaniel Passeser, Ex. A ("Watkins Dep.") at 143:6-16 (emphasis added), ECF No. 91-1:
A: If I can't [interview certain witnesses], then I'm not going any further. Why don't you call up the judge?
Q: Is that what you want?
A: Yes, it is. Call up the judge and find out.
Q: Just before I call, you're refusing to answer any further questions?
A: Until I can interview my witnesses. I "fl answer them today if [Magistrate Judge Netburn] says you can interview
my witnesses.)
4

(See Report at 3-8 (noting six court orders dated December 12, 2013; February 26, 2014; March 17, 2014; May 7,
2014; June 27, 2014; and July 23, 2014 warning Plaintiff his noncompliance could result in dismissal).)
5

(See, e.g., Watkins Dep. at 62:7-9 ("JUDGE NETBURN: If Mr. Watkins does not answer the questions under oath,
[the case] will be dismissed.").)

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"Significant public resources," at the city's expense, were also spent in arranging and sending an
attorney to the failed deposition. (Id.)
Fourth, dismissing this case achieves the appropriate balance between the interests of
this Court and that of Plaintiff. While "[e]ach plaintiff has a right to his day in [c]ourt," this
right is "qualified by the obligation to comply with lawful [c]ourt orders." George v. City of
New York, No. 12 Civ. 6365 (PKC)(JLC), 2013 WL 5943206, at *4 (S.D.N.Y. Nov. 6, 2013).

Plaintiff has been afforded-but has expressly declined-multiple opportunities to comply with
Magistrate Judge Netbum's orders. He has also inundated the court with what can only be
characterized as "irrelevant or obstructionist filings," see Baptiste, 768 F .3d at 218 (quotation
omitted), to the point that Magistrate Judge Netbum had to establish a separate protocol of
addressing Plaintiffs filings on a monthly basis absent an emergency. (See ECF No. 97; see

also Report at 20 (noting that the docket contains "113" entries for this case, which involves
"relatively simple allegations that never got past the plaintiff's deposition").) Here, this Court's
interest in managing its docket outweighs Plaintiff's interest in being heard.
Finally, on this record, a less drastic sanction other than dismissal would not be effective.
Not only has Plaintiff willfully ignored numerous court orders, but he has also espoused vitriolic
comments about the court and opposing counsel demonstrating that his disobedient behavior
would continue. 6 Because Plaintiff "has given every indication that he will ignore all lesser

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(See, e.g., Plaintiffs December 9, 2013 Letter at 1, ECF No. 40 (emphasis in original) ("I Dennis Watkins am the
acting agent for the person and I charge a fee of $25,000 dollars in gold and silver coin, and will charge you Judge
Sarah Netbum $2,500 dollars for ever[y] order you give to me, if and which I choose to ful[]fill so please stand down
this is not your case and [you] are not invited."); Watkins Dep. at 162: 14-162:25 ("I am not obligated to listen to your
order. 1 am not obligated. You know what? Goodbye. Hang up, goodbye. I'm not finishing."); Plaintiffs December
1, 2014 Letter at 4, ECF No. 103 (emphasis in original) ("I will run you over if you get in my way [defense counsel].
I will do my best to have you disbarred.").)

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sanctions," the fifth factor also weighs in favor of dismissal. (Report at 21.) 7
CONCLUSION
Magistrate Judge Netbum's recommendation to dismiss this case under Rule 41(b) is
adopted. The Defendants' motion to dismiss for failure to prosecute is GRANTED. The instant
action is DISMISSED.
The Clerk of the Court is directed to close the motion at ECF No. 90, and this case.

Dated: New York, New York
July 31, 2015

SO ORDERED.

~6. ~
. DANIELS
United S~tes District Judge

Magistrate Judge Netbum has also recommended an appropriate alternative ground for dismissal under Rule
3 7(b )(2) for failure to obey a discovery order.

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