Smith v. Fischer et al

Filing 128

DECISION AND ORDER: Defendants' 94 Motion to Dismiss is DENIED in its entirety. The Court directs Plaintiff to provide defense counsel with the discovery he seeks--and that Judge Payson has ordered him to produce--by November 1, 2019. The Co urt warns Plaintiff that his failure to provide the discovery or otherwise obey future Court orders may result in sanctions, including the dismissal of this case with prejudice. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/30/2019. Copies of the NEF and Decision and Order were mailed to Plaintiff. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEREMIE SMITH,
Plaintiff,

Case # 13-CV-6127-FPG

v.
DECISION AND ORDER
BRIAN FISCHER, et al.,
Defendants.

INTRODUCTION
Pro se Plaintiff Jeremie Smith brings this action pursuant to 42 U.S.C. § 1983 for
Defendants’ alleged violation of his constitutional rights while he was incarcerated at Five Points
Correctional Facility. ECF No. 1.
Before the Court is Defendants’ Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 37 for Plaintiff’s failure to comply with a Court order directing him to produce certain
discovery materials. ECF No. 94. Defendants also seek $1,440 in attorney’s fees incurred in
connection with Defendants’ previous motion to compel (ECF No. 83) and the current motion to
dismiss. For the reasons that follow, the Court denies Defendants’ motion and declines to award
attorney’s fees.
BACKGROUND
On October 16, 2018, United States Magistrate Judge Marian W. Payson issued a Decision
and Order granting in part and denying in part Defendants’ Motion to Compel Plaintiff to respond
to document demands and interrogatories. ECF No. 92. Judge Payson ordered Plaintiff to respond
to Defendants’ second, third, fourth, fifth, and sixth demands by October 31, 2018. Id. On that
date, attorney Brian M. Dratch filed a notice of appearance on Plaintiff’s behalf. ECF No. 93.

On November 14, 2018, Defendants filed the pending motion to dismiss, arguing that they
still have not received the discovery that Judge Payson ordered Plaintiff to produce. ECF No. 94.
Before Defendants filed the motion, it appears that defense counsel was unsuccessful in his efforts
to contact Mr. Dratch and obtain the missing discovery materials.
On December 16, 2018, Plaintiff responded in opposition to Defendants’ motion, arguing
that, since October 31, 2018, he sent defense counsel authorizations to obtain his medical records
and 288 pages of documents. ECF No. 96. Mr. Dratch indicated that he did not have the
interrogatories or Rule 26 disclosure documents and that he was “attempting to comply as quickly
as possible” but had only been involved in this case for about six weeks. Id. Nonetheless,
Defendants contends that certain discovery requests are still outstanding.
Since then, many things have changed in this case: the parties stipulated to dismissing
nearly 30 defendants; Plaintiff filed an Amended Complaint 1; the relationship between Plaintiff
and Mr. Dratch broke down and Plaintiff is proceeding pro se again; and Plaintiff has been in and
out of inpatient mental health facilities for treatment. ECF Nos. 101, 102, 109, 117, 119, 120.
DISCUSSION
I.

Dismissal under Federal Rule of Civil Procedure 37(b)(2)(A)(v)
Under Rule 37(b), a court may dismiss a case or impose other sanctions if a party does not

obey an order to provide or permit discovery. Residential Funding Corp. v. DeGeorge Fin. Corp.,
306 F.3d 99, 106-07 (2d Cir. 2002). In evaluating whether to dismiss a case for this reason, a court
considers: “1) the willfulness of the non-compliant party or the reason for noncompliance; 2) the
duration of the period of non-compliance; 3) whether the non-compliant party had been warned of
the consequences of noncompliance; and 4) the efficacy of lesser sanctions.” Ferrer v. Fischer,

1

Defendants have not answered or otherwise responded to the Amended Complaint, even though it was filed over
five months ago.

-2-

No. 9:13-CV-0031 NAM/ATB, 2014 WL 5859139, at *2 (N.D.N.Y. Nov. 12, 2014) (citation
omitted). Dismissal is a “harsh remedy” to be used “only in extreme situations.” Id. (citation
omitted).
The Court declines to analyze each factor here because it finds that the third factor
precludes dismissal; that is, Plaintiff has not been warned that his non-compliance with
Defendants’ discovery demands could result in the dismissal of his case. The Second Circuit has
repeatedly affirmed that courts may not dismiss a pro se litigant’s case under Rule 37 without
warning him of the consequences of not complying with discovery obligations. See, e.g., S.E.C.
v. Setteducate, 419 F. App’x 23, 24 (2d Cir. 2011) (“[e]ven the most severe Rule 37 sanctions may
be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given
that noncompliance can result in a sanction”) (quotation marks omitted and emphasis added)
(summary order); Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (same).
Consistent with this settled authority, courts routinely deny motions to dismiss based on a
pro se litigant’s non-compliance with discovery orders where the litigant had not been warned in
advance that his non-compliance could result in dismissal. See, e.g., Velazquez v. Vermont Dep’t
of Corr., No. 2:07 CV 244, 2009 WL 819445, *2 (D. Vt. 2009) (declining to order dismissal where
pro se plaintiff did not appear for a deposition or respond to written discovery requests but “ha[d]
not yet been warned that his failure to participate in discovery might result in the dismissal of his
case”); Burke v. Miron, No. 3:07CV1181(RNC), 2009 WL 952097, *1 (D. Conn. 2009) (declining
to dismiss the pro se plaintiff’s case for non-compliance with discovery, even though he was “a
prolific and experienced litigator” because “Second Circuit precedent require[es] a clear warning
to pro se litigants” that their case may be dismissed). Accordingly, the Court denies Defendants’
motion to dismiss this case.

-3-

II.

Request for Attorney’s Fees
Defendants also ask for attorney’s fees pursuant to Rule 37(a)(5)(A) and (d)(3). Under

both subsections, the Court “must” require the offending party to pay the movant’s reasonable
attorney’s fees incurred after notice if the Court previously granted the moving party’s motion to
compel or if the offending party previously failed to respond to interrogatories. Despite the
compulsory language in Rule 37, “a district court has wide discretion in sanctioning a party for
discovery abuses.” Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999). A court
may deny a request for fees where (1) the movant did not make a good faith effort to resolve the
dispute before filing the motion; (2) the non-moving party’s failure to provide the discovery
response was “substantially justified”; or (3) the award of fees would be unjust. Fed. R. Civ. P.
37(a)(5)(A)(i)-(iii).
The Court finds that awarding fees to Defendants on the facts before it would be
unjust. First, although Plaintiff responded to Defendants’ motion, the Court has not supplied
Plaintiff with the requisite notice before either awarding fees, dismissing the case, or imposing
other sanctions, as discussed above. Second, Plaintiff has been proceeding pro se for a substantial
portion of the case and in forma pauperis for the entirety of it. Awarding Defendants over $1,000
in attorney’s fees would place an unreasonable burden upon Plaintiff, who could not afford the
filing fee to bring this action. Defendants acknowledge as much in their brief. ECF No. 94-2 at 3
(“Defendants understand that a monetary fine to a party who is a pauper can be entirely
meaningless.”). Consequently, the Court declines to award fees under the circumstances. See
Jayne v. Bosenko, No. 2:08-cv-02767-MSB, 2014 WL 2801201, at *2 (E.D. Cal. June 19, 2014)
(declining to impose sanctions under Rule 37(a)(5) against a pro se prisoner proceeding in forma
pauperis because doing so would be unjust).

-4-

CONCLUSION
Defendants’ Motion to Dismiss (ECF No. 94) is DENIED in its entirety. The Court directs
Plaintiff to provide defense counsel with the discovery he seeks—and that Judge Payson has
ordered him to produce—by November 1, 2019. The Court warns Plaintiff that his failure to
provide the discovery or otherwise obey future Court orders may result in sanctions, including the
dismissal of this case with prejudice.
IT IS SO ORDERED.
Dated: September 30, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

-5-