Shomo v. State of New York

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

JOSE SHOMO,

Plaintiff, DECISION AND ORDER

v.

1:18-CV-00916 EAW

STEWART T. ECKERT, et al.,

Defendants.

____________________________________

INTRODUCTION

Pro se plaintiff Jose Shomo (“Plaintiff”) alleges claims under the First and Eighth

Amendments pursuant to 42 U.S.C. § 1983, as well as under the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132, against twenty-eight defendants

(collectively, “Defendants”). Pending before the Court are the following six motions:

(1) Plaintiff’s motion for injunctive relief (Dkt. 54); (2) Defendants’ motion to dismiss

Plaintiff’s complaint as a discovery sanction or for lack of prosecution (Dkt. 60);

(3) Defendants’ motion to revoke Plaintiff’s in forma pauperis (“IFP”) status (Dkt. 63);

(4) Plaintiff’s cross-motion for a hearing regarding Defendants’ motion to revoke his IFP

status (Dkt. 66); (5) Plaintiff’s second motion for injunctive relief (Dkt. 68); and

(6) Defendants’ motion to strike Plaintiff’s filing at Docket 71 as an unauthorized and

oversized sur-reply (Dkt. 72).

For the following reasons, Defendants’ motion to revoke Plaintiff’s IFP status and

motion to strike his filing at Docket 71 are denied (Dkt. 63; Dkt. 72); Plaintiff’s three

motions are denied (Dkt. 54; Dkt. 66; Dkt. 68); and Defendants’ motion to dismiss

Plaintiff’s complaint is granted (Dkt. 60).

BACKGROUND

Plaintiff filed his initial complaint on August 17, 2018. (Dkt. 1). He alleged

violations of the First Amendment, Eighth Amendment, and the ADA for events that

occurred while incarcerated at Wende Correctional Facility (“Wende”) from 2015 to 2017.

(See id.). Plaintiff moved for leave to proceed IFP (Dkt. 6), and upon screening pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court granted Plaintiff IFP status (see Dkt.

8 at 30). The Court dismissed Plaintiff’s ADA claim with prejudice, as well as his § 1983

claims against Defendants in their official capacities. (Id.). The Court concluded that many

of Plaintiff’s remaining claims must be dismissed without prejudice and granted him leave

to amend his complaint. (Id. at 30-31).

On January 13, 2020, Plaintiff moved for an extension of time to amend his

complaint, which was granted. (See Dkt. 9; Dkt. 10). In a letter dated March 16, 2020,

Plaintiff asked for the Court to intervene because he had been denied use of a typewriter at

Fishkill Correctional Facility (“Fishkill”). (Dkt. 12). The Court denied Plaintiff’s request

via text order because preliminary injunctive relief is only available to redress injuries

related to the conduct at issue in the complaint, and Plaintiff’s request for a typewriter at

Fishkill was unrelated to the claims stemming from his incarceration at Wende. (Dkt. 13).

Plaintiff never filed an amended complaint.

In January 2021, the Court referred this case to the Honorable Leslie G. Foschio,

United States Magistrate Judge, for all pretrial matters excluding dispositive motions (Dkt.

22), and Defendants filed answers to Plaintiff’s initial complaint (Dkt. 21; Dkt. 28). Judge

Foschio entered a scheduling order on March 25, 2021 (Dkt. 26), and soon thereafter,

Plaintiff filed a motion for appointment of counsel, which was denied (Dkt. 29; Dkt. 34).

On March 2, 2022, Defendants filed a motion for an extension of time to complete

discovery, asserting that Plaintiff had been transferred from Fishkill to Coxsackie

Correctional Facility (“Coxsackie”) in December 2021 but had failed to inform Judge

Foschio of his transfer. (See Dkt. 37-1 at ¶ 5). Judge Foschio granted Defendants’ motion

and entered an amended scheduling order requiring discovery to be completed by June 30,

2022. (Dkt. 40 at ¶ 1). On June 30, 2022, Defendants filed a motion to compel discovery

or, in the alternative, to extend the existing discovery deadlines, citing Plaintiff’s failure to

respond to their discovery requests. (See Dkt. 41-1 at 1-2). Plaintiff never responded to

Defendants’ motion, but Judge Foschio denied Defendants’ motion to compel without

prejudice (Dkt. 43), and entered a second amended scheduling order on August 10, 2022

(Dkt. 44). The second amended scheduling order set a discovery deadline of November

30, 2022. (Id. at ¶ 1).

On November 29, 2022, Defendants filed a second motion to compel discovery due

to Plaintiff’s failure to respond to any of their previous requests. (See Dkt. 45-1 at 1-3).

Plaintiff again did not respond to Defendants’ motion to compel, and on March 9, 2023,

Defendants moved for a further extension of time to complete discovery and to hold the

active case management order deadlines in abeyance. (See Dkt. 49). On March 30, 2023,

Judge Foschio, in a written Decision and Order, granted Defendants’ motion to compel.

(Dkt. 51 at 4). Judge Foschio ordered that Plaintiff respond to Defendants’ discovery

requests no later than 45 days from the date of the Decision and Order, and following

service of the discovery, that Plaintiff make himself available for a deposition. (Id.). Judge

Foschio further advised Plaintiff that failure to comply could result in sanctions under

Federal Rule of Civil Procedure 37(b)(2)(A), including dismissal of his complaint. (Id.).

Finally, Judge Foschio instructed Plaintiff to update his mailing address with the Court

pursuant to Local Rule of Civil Procedure 5.2(d). (Id.).

On April 14, 2023, Plaintiff filed a motion for an extension of time to complete

discovery. (Dkt. 52). Judge Foschio granted Plaintiff’s motion and issued a third amended

scheduling order, and he further ordered that Plaintiff’s responses to Defendants’ discovery

requests, as required by the March 30, 2023 Decision and Order, were required to be served

no later than 60 days from May 5, 2023. (Dkt. 55; Dkt. 56).

On April 27, 2023, Plaintiff filed a motion for injunctive relief, the first of the six

motions now before the Court. (See Dkt. 54). Plaintiff asserted that he had been transferred

back to Wende on March 6, 2023, and that ever since, Defendants had not provided him

with adequate access to the law library as required by New York’s Department of

Corrections and Community Supervision (“DOCCS”) Directive 4483. (Id. at 1). Plaintiff

further alleged that Defendants had prevented him from using his “personal typewriter”

and that Defendants were obligated to provide him with the assistance of a person “trained

in the law.” (Id.). Defendants responded to Plaintiff’s motion (Dkt. 58), and Plaintiff

replied (Dkt. 59).

Several months later, on August 11, 2023, Defendants filed a motion to dismiss

Plaintiff’s complaint as a discovery sanction under Federal Rule of Civil Procedure

37(b)(2) or for lack of prosecution under Rule 41(b). (See Dkt. 60-2 at 4-5). Defendants

expressed that “Plaintiff ha[d] taken no affirmative steps to further this litigation since the

first case management order was issued nearly two and a half years ago” and “made no

effort to take discovery or respond to discovery during that time.” (Id. at 6). Defendants

further stated that Plaintiff had “repeatedly failed to provide responses to the Demands,

which have been outstanding for sixteen months.” (Id.). On August 21, 2023, Plaintiff

submitted a filing, docketed as an “Addendum,” in which he acknowledged receipt of

Defendants’ motion to dismiss and purported to respond. (See Dkt. 62 at 2, ¶ 1).

Defendants replied. (Dkt. 64).

On August 29, 2023, Defendants filed a motion to revoke Plaintiff’s IFP status.

(Dkt. 63). Plaintiff, in turn, cross-moved for a hearing regarding the revocation of his IFP

status (Dkt. 66), and Defendants responded (Dkt. 67).

On November 15, 2023, Plaintiff sent a letter informing the Court that he finally

had completed his response to Defendants’ motion to dismiss but “lack[ed] the funds in

[his] inmate account” to mail his submission because it was over a hundred pages long.

(Dkt. 68 at 1). Plaintiff suggested that the Court “arrange” for the New York Assistant

Attorney General (“AAG”) assigned to the case to retrieve his papers and file them

electronically on his behalf. (Id. at 2). The next day, Defendants submitted a letter

objecting to Plaintiff’s request for assistance, characterizing his proposed filing as a sur-

reply. (See Dkt. 69 at 1-2). Plaintiff responded that he was “seeking to merely submit a

proper response” to Defendants’ motion to dismiss. (Dkt. 70 at 1).

On December 14, 2023, Plaintiff filed his response in opposition to Defendants’

motion to dismiss and the motion to revoke his IFP status. (Dkt. 71). Defendants soon

after filed a motion to strike Plaintiff’s filing as an unauthorized and oversized sur-reply in

opposition to their motion to revoke Plaintiff’s IFP status. (Dkt. 72). Plaintiff responded

(Dkt. 74), and Defendants replied (Dkt. 75).

DISCUSSION

I. Defendants’ Motion to Revoke Plaintiff’s IFP Status

The Court first addresses Defendants’ motion to revoke Plaintiff’s IFP status. As

discussed below, Plaintiff did not accumulate three “strikes” before filing the present

lawsuit. The Court therefore denies Defendants’ motion (Dkt. 63) and also denies as moot

Plaintiff’s motion for a hearing (Dkt. 66).

At the time this lawsuit was commenced, a party was required to pay a $350.00

filing fee, as well as a $52.00 administrative fee. See 28 U.S.C. § 1914. Of course, the

Court may grant a party leave to proceed IFP if it determines that the party is unable to pay

the filing fee. See 28 U.S.C. § 1915. Nonetheless, not all litigants may be granted leave

to proceed IFP. Under the “three strikes rule” of the Prison Litigation Reform Act

(“PLRA”), an incarcerated individual may not proceed IFP if they have brought three or

more lawsuits that have been dismissed as frivolous or for failure to state a claim:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action

or appeal in a court of the United States that was dismissed on the grounds

that it is frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious physical

injury.

28 U.S.C. § 1915(g); see Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir. 2002).

Thus, under § 1915(g), an incarcerated individual with three strikes may proceed

IFP only if they can show they are “under imminent danger of serious physical injury.” Id.

“An imminent danger is not one that has dissipated by the time a complaint is filed; rather

it must be one existing at the time the complaint is filed.” Chavis v. Chappius, 618 F.3d

162, 169 (2d Cir. 2010) (internal quotation marks and citations omitted).

Here, Defendants point to four cases and argue that Plaintiff accumulated more than

three strikes before filing this lawsuit. (See Dkt. 63-8 at 4-5). In the first case, following

the Northern District of New York’s grant of summary judgment to the defendants, the

Second Circuit dismissed Plaintiff’s appeal for lacking an arguable basis in fact or law.

(Dkt. 63-3 at 15); see Mandate, Shomo v. New York, No. 07-4162 (2d Cir. June 25, 2008)

(Dkt. 24); see also Shomo v. N.Y. Dep’t of Corr. Servs., No. 9:04-CV-0910 (LEK/GHL),

2007 WL 2580509, at *22 (N.D.N.Y. Sept. 4, 2007). In the second case, the Second Circuit

again dismissed Plaintiff’s appeal for lacking an arguable basis in law or fact after the

Northern District of New York granted summary judgment in favor of the defendants.

(Dkt. 63-4 at 7); see Mandate, Shomo v. Goord, No. 07-4351 (2d Cir. Apr. 9, 2008) (Dkt.

15); see also Shomo v. Goord, No. 9:04-CV-00707 (LEK/DEP), 2007 WL 2693526, at *10

(N.D.N.Y. Sept. 11, 2007). In the third case, the Southern District of New York dismissed

Plaintiff’s complaint pursuant to the defendants’ motion under Federal Rule of Civil

Procedure 12(b)(6); only some of the claims were dismissed with prejudice, and the court

allowed Plaintiff leave to re-plead a deliberate indifference claim against several physician

defendants. (Dkt. 63-5); see Shomo v. City of New York, No. 03 Civ. 10213 (AKH), 2005

WL 756834, at *11-12 (S.D.N.Y. Apr. 4, 2005). The fourth case is the grant of summary

judgment by the Northern District of New York giving rise to the Second Circuit’s

dismissal of Plaintiff’s appeal in the first potential strike. (See Dkt. 63-8 at 5); Shomo,

2007 WL 2580509, at *22.

The first two cases on which Defendants rely are clearly strikes. “An appeal is

frivolous when it ‘lacks an arguable basis either in law or in fact.’” Tafari v. Hues, 473

F.3d 440, 442 (2d Cir. 2007) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The

Second Circuit explicitly dismissed Plaintiff’s appeals from the Northern District of New

York for frivolousness—one of the listed grounds in section 1915(g). See, e.g., Chavis,

618 F.3d at 167-69. But the third and fourth cases are not strikes.

In the case from the Southern District of New York, the court sua sponte gave

Plaintiff leave to re-plead part of his complaint. See Shomo, 2005 WL 756834, at *11-12.

“The three strikes provision specifically applies to ‘an action . . . that was dismissed’ on

one of the enumerated grounds.” Morehouse v. Vasques, No. 17-CV-4836 (KMK), 2018

WL 4211320, at *4 (S.D.N.Y. Sept. 4, 2018) (emphasis in original) (quoting 28 U.S.C.

§ 1915(g)). “In other words, a strike is derived from a district court’s order of dismissal of

the entire case, if not the resulting judgment itself.” Id. Because the Southern District of

New York did not dismiss Plaintiff’s entire action, the case is not a strike. See Lomax v.

Ortiz-Marquez, 140 S. Ct. 1721, 1724 n.4 (2020) (stating that section 1915(g) “does not

apply when a court gives a plaintiff leave to amend his complaint.”); Tafari v. Hues, 539

F. Supp. 2d 694, 702 (S.D.N.Y. 2008) (“Given the Second Circuit precedent concerning

related PLRA provisions, we think a ruling that plaintiffs do not incur strikes for partial

dismissals for reasons within section 1915(g) is consistent with the purpose and intent of

the PLRA.”); cf. Griffin v. Carnes, 72 F.4th 16, 19 (2d Cir. 2023) (confirming that a district

court’s dismissal of an entire action under Rule 12(b)(6), after which the plaintiff was not

given leave to amend, constituted a strike under section 1915(g)).

In the fourth case, the Honorable George H. Lowe, United States Magistrate Judge,

issued a report and recommendation adopted in full by the Honorable Lawrence E. Kahn,

United States District Judge for the Northern District of New York. See Shomo, 2007 WL

2580509, at *1. Plaintiff had brought claims under the Eighth Amendment, the ADA, the

Rehabilitative Act of 1973 (“RA”), 29 U.S.C. § 794, and 42 U.S.C. §§ 1981, 1984, 1985,

1986, and 2000d against two sets of defendants (“State Defendants” and “Corporate

Defendants,” respectively). See id., 2007 WL 2580509, at *1, 16-17, 21-22. Judge Lowe

recommended the dismissal of all of Plaintiff’s claims against the State Defendants on

strike grounds.1 See id., 2007 WL 2580509, at *5-17. Judge Lowe recommended the same

as to all of Plaintiff’s claims against the Corporate Defendants, except for Plaintiff’s Eighth

Amendment deliberate indifference claim. Id., 2007 WL 2580509, at *17-22. Judge Lowe

concluded that the Corporate Defendants were entitled to judgment as a matter of law on

Plaintiff’s Eighth Amendment deliberate indifference claim, not that Plaintiff had failed to

allege any facts upon which relief could be granted. See id., 2007 WL 2580509, at *18-

1 The Second Circuit recently confirmed that dismissals based either on res judicata

or on alternative holdings may constitute strikes under the PLRA. See Griffin v. Carnes,

72 F.4th 16, 19 (2d Cir. 2023).

20. As such, although “a summary judgment dismissal stating on its face that the dismissed

action was frivolous, malicious, or failed to state a claim counts as a strike for purposes of

the PLRA’s three-strikes provision,” Bradshaw v. City of New York, No. 18 CIV. 8215

(ER), 2019 WL 2502036, at *3 (S.D.N.Y. June 17, 2019) (internal quotation marks and

citation omitted), this fourth case upon which Defendants rely cannot constitute a strike.

See Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) (“[A] prisoner’s entire

‘action or appeal’ must be dismissed on a § 1915(g) ground to count as a strike under the

PLRA. Accordingly, mixed dismissals are not strikes under the PLRA.”).

Ultimately, the Court agrees with Defendants’ assertion that, based on the mandates

issued by the Second Circuit in 2020 and 2021, Plaintiff has at least three strikes. (Dkt.

63-1 at ¶ 10; Dkt. 63-7 at 1-2); see Mandate, Shomo v. N.Y. Dep’t of Corr. & Cmty.

Supervision, No. 20-583 (2d Cir. Sept. 24, 2020) (Dkt. 36); Mandate, Shomo v. New York,

No. 20-2783 (2d Cir. Dec. 27, 2021) (Dkt. 72). But the language of section 1915(g) only

allows a plaintiff’s IFP status to be revoked if the plaintiff accumulates three strikes before

bringing their current action. See 28 U.S.C. § 1915(g); accord Abreu v. Brown, 317 F.

Supp. 3d 702, 707 (W.D.N.Y. 2018). Here, Plaintiff only had two strikes before filing this

lawsuit on August 17, 2018, and as such, Defendants’ motion to revoke Plaintiff’s IFP

status is denied. Plaintiff’s motion for a hearing regarding the revocation of his IFP status

is denied as moot.

II. Plaintiff’s Motions for Injunctive Relief

The Court next addresses Plaintiff’s two motions for injunctive relief. (See Dkt. 54;

Dkt. 68). In the first motion, Plaintiff asserts that, since returning to Wende on March 6,

2023, he has not been given sufficient access to the law library or to “people to type legal

papers” as required by DOCCS Directive 4483, and he seeks a hearing “on an application

for an injunction” pursuant to Federal Rule of Civil Procedure 65. (Dkt. 54 at 1-2). In the

second motion, Plaintiff requests that the Court arrange for the AAG assigned to this case

to pick up Plaintiff’s response to Defendants’ motion to dismiss and file it for him. (Dkt.

68 at 1-2). The Court denies both motions.

“A preliminary injunction is an extraordinary remedy never awarded as of right,”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and “is one of the most drastic

tools in the arsenal of judicial remedies,” Hanson Tr. PLC v. ML SCM Acquisition, Inc.,

781 F.2d 264, 273 (2d Cir. 1986) (internal quotation marks and citation omitted). “The

district court has wide discretion in determining whether to grant a preliminary injunction.”

Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal

quotation marks and citation omitted). To obtain a preliminary injunction under Rule

65(a), the moving party must generally show “(1) irreparable harm; (2) either a likelihood

of success on the merits or both a serious question on the merits and a balance of hardships

decidedly favoring the moving party; and (3) that a preliminary injunction is in the public

interest.” N. Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32, 37

(2d Cir. 2018).

Plaintiff’s requests for injunctive relief fail for at least two reasons. First, Plaintiff’s

motion for relief is not sufficiently related to the allegations contained in his underlying

complaint. See, e.g., Sanchez v. DOCS Medical Dep’t, No. 12-CV-141Sr., 2013 WL

4520021, at *4-5 (W.D.N.Y. Aug. 21, 2013). In his motion, Plaintiff does not point to any

specific actions taken by the defendants in this lawsuit that have prevented him from

accessing Wende’s law library or resources (see Dkt. 54 at 1-2), and “a court generally may

not issue an order against a nonparty,” United States v. Regan, 858 F.2d 115, 120 (2d Cir.

1988). Simply put, Plaintiff does not explain who the Court should order to do what, so

that Plaintiff receives the access he allegedly has been denied.

Second, Plaintiff has not shown any irreparable harm from his purported lack of

access to Wende’s law library and resources. See, e.g., Taylor v. N.Y.C., 517 F. Supp. 3d

191, 194-95 (S.D.N.Y. 2021). “[A] showing of probable irreparable harm is the single

most important prerequisite for the issuance of a preliminary injunction.” Reuters Ltd. v.

United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (internal quotation marks and

citation omitted). Since filing this motion for injunctive relief, Plaintiff has filed multiple

typed submissions with the Court, including one that is forty pages in length. (See Dkts.

59, 62, 66, 68, 70, 71, 74). As such, Plaintiff’s first motion for injunctive relief is denied.

Plaintiff’s second motion for injunctive relief asks the Court to direct the AAG to

retrieve his response to Defendants’ motion to dismiss and file it on his behalf. (See Dkt.

68 at 1-2). While Plaintiff claims that DOCCS refused to advance him legal postage

sufficient to mail his response, he again fails to point to specific action taken by the

individual defendants in this case, and he ultimately was able to file his response with the

Court. (See Dkt. 71). Plaintiff’s second motion for injunctive relief is therefore denied as

moot.

III. Defendants’ Motion to Strike

Defendants seek to strike Plaintiff’s filing at Docket 71 as an unauthorized and

oversized sur-reply. (See Dkt. 72-1 at 5-11). The Court declines to find Plaintiff’s

submission as such and denies Defendants’ motion.

Rule 7(a)(2)(C) of the Local Rules of Civil Procedure for the Western District of

New York provides:

Memoranda in support of or in opposition to any motion shall not exceed

twenty-five (25) pages in length, and reply memoranda shall not exceed ten

(10) pages in length. Tables of contents and tables of authorities are not

included in the page limitations. A party seeking to exceed the page limit

must make application by letter to the Judge hearing the motion, with copies

to all counsel, at least seven (7) days before the date on which the memoranda

must be filed.

Loc. R. Civ. P. 7(a)(2)(C). The Local Rules further provide that “[a]bsent permission of

the Judge hearing the motion, sur-reply papers are not permitted.” Loc. R. Civ. P. 7(a)(6).

Ultimately, however, “whether to permit the filing of a sur-reply is entirely within the

Court’s discretion.” Marseet v. Rochester Inst. of Tech., No. 20-CV-7096FPG, 2022 WL

2718509, at *1 (W.D.N.Y. July 13, 2022); see generally United States v. Int’l Bus. Machs.

Corp., 66 F.R.D. 383, 384-85 (S.D.N.Y. 1975).

In this case, Defendants filed their motion to dismiss on August 11, 2023. (Dkt.

60). Plaintiff responded to Defendants’ motion to dismiss on August 21, 2023. (Dkt. 62).

On August 29, 2023, Defendants filed their motion to revoke Plaintiff’s IFP status. (Dkt.

63). Plaintiff then filed a cross-motion for a hearing regarding the revocation of his IFP

status on September 13, 2023. (Dkt. 66). The Court construes Plaintiff’s filing at Docket

71 to be his response, albeit late and oversized, to Defendants’ motion to revoke his IFP

status. See, e.g., Laboy v. Ontario Cnty., 56 F. Supp. 3d 255, 259 (W.D.N.Y. 2014) (“A

district court has discretion in deciding whether to strike a submission not in compliance

with a local rule.”). However, even if a sur-reply to the motion to dismiss, the Court in the

exercise of discretion declines to strike it. Thus, Defendants’ motion to strike is therefore

denied.

IV. Defendants’ Motion to Dismiss

Lastly, the Court addresses Defendants’ motion to dismiss Plaintiff’s complaint as

a discovery sanction under Rule 37(b)(2) or for failure to prosecute under Rule 41(b). (See

Dkt. 60). For the reasons discussed below, Defendants’ motion to dismiss is granted.

A. Rule 37

Rule 37(b) allows the court to sanction a party for failing to comply with an order

to provide or permit discovery, including dismissal of the action in whole or in part. See

Fed. R. Civ. P. 37(b)(2)(A); Friends of Animals Inc. v. U.S. Surgical Corp., 131 F.3d 332,

334 (2d Cir. 1997). Sanctions under Rule 37 are intended to serve three purposes:

First, they ensure that a party will not benefit from its own failure to comply.

Second, they are specific deterrents and seek to obtain compliance with the

particular order issued. Third, they are intended to serve a general deterrent

effect on the case at hand and on other litigation, provided that the party

against whom they are imposed was in some sense at fault.

Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988).

“Whether exercising its inherent power, or acting pursuant to 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); see Design Strategy, Inc. v. Davis, 469

F.3d 284, 294 (2d Cir. 2006). In imposing Rule 37 sanctions, courts consider various

factors, including:

(1) the willfulness of the non-compliant party or the reason for

noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the

period of noncompliance[;] and (4) whether the non-compliant party had

been warned of the consequences of noncompliance.

Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017) (internal quotation marks and

citation omitted). “Although ‘dismissal under [Rule 37] is a drastic remedy that should be

imposed only in extreme circumstances,’ this severe sanction may well be warranted, even

in the case of pro se litigants, when, ‘due to willfulness or bad faith,’ they fail to comply

with discovery orders after being warned that noncompliance can result in dismissal.”

Proctor v. Poole, 233 F.R.D. 323, 325 (W.D.N.Y. 2006) (internal citation omitted) (first

quoting Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986); and then quoting Daval

Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991)); see West v. Goodyear

Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

The Court has considered each of the above-mentioned factors and finds that

dismissal of Plaintiff’s case is appropriate. The Court does not reach this determination

lightly, but only after careful consideration of the record. Turning first to the willfulness

of Plaintiff’s non-compliance, he has refused to comply with Judge Foschio’s March 30,

2023 Decision and Order, which clearly instructed Plaintiff that he was required to provide

all discovery responses and to thereafter make himself available for an oral deposition

within 45 days of March 30, 2023. (See Dkt. 51 at 4). Further, it is plain from other

documentation in the record, such as Plaintiff’s own filings, that Plaintiff was aware of

Judge Foschio’s order, as well as Defendants’ prior motions for extensions of time and to

compel Plaintiff’s participation in discovery. For example, following Judge Foschio’s

order on March 30, 2023, Plaintiff filed his own motion for an extension of time to

complete discovery, stating that “[f]or the record . . . I did receive ‘all’ of this Court’s

correspondences—as well as adversary counsels’—however, due to the defendants [sic]

‘oppressive’ tactics, I was effectively ‘stymied’ from responding to those

correspondences . . . .” (Dkt. 52 at 1). Judge Foschio ultimately granted Plaintiff’s request

for a further extension of time. (See Dkt. 55; Dkt. 56).

Despite his admitted awareness of Judge Foschio’s March 30, 2023 discovery order

and the subsequent extension of time, Plaintiff still has not responded to any of Defendants’

discovery demands, including interrogatories and requests of admission, or made himself

available for a deposition. (See Dkt. 60-1 at ¶¶ 4-16). In his “Addendum” filed in August

of 2023, Plaintiff admits that “defendants have served various written demands on plaintiff

in April 2022, with followup letters, and that plaintiff has yet to respond which forced

defendants to seek to compel, twice.” (Dkt. 62 at 2).

Plaintiff’s statements that he was “stymied” from responding to correspondences,

advancing the case, and engaging in discovery (see Dkt. 52 at 1; Dkt. 62 at 2-5) are

contradicted by his voluminous filings with the Court since March 30, 2023, at least one

of which exceeds 40 pages in length. (See, e.g., Dkt. 54; Dkt. 59; Dkt. 62; Dkt. 66; Dkt.

68; Dkt. 70; Dkt. 71; Dkt. 74). Accordingly, Plaintiff’s contention that he was not able to

comply with court orders and respond to Defendants’ discovery requests is just not credible

and not supported by the record. Rather, it is apparent that Plaintiff has unilaterally elected

to ignore his obligations to comply with Defendants’ discovery demands.

Plaintiff’s “Addendum” makes clear that he has not made and does not intend to

make any serious effort to comply with Judge Foschio’s March 30, 2023 discovery order.

Plaintiff asserts that Defendant’s motion is “meritless” because he “‘HAS ALREADY’

provided the documents demanded by Defendants” and “Defendants needed only review

the ‘Exhibits’ ‘attched [sic] to the Complaint.’” (Dkt. 62 at 3-4). Plaintiff further takes the

position that “even if those documents were not attached” to the complaint, he lacks the

funds to make the necessary copies, and accordingly should not be “burdened” by

providing to Defendants documents that he claims they could retrieve themselves. (Id. at

4). In other words, despite having been expressly ordered by Judge Foschio to “provide

all discovery responses requested by Defendants’ discovery requests” (Dkt. 51 at 4),

including interrogatories and requests for admission, Plaintiff has apparently decided that

he has discharged his discovery obligation because he attached certain documents to his

complaint.

Litigation does not work this way. Plaintiff’s actions demonstrate that his conduct

was willful. See Handwerker v. AT&T Corp., 211 F.R.D. 203, 209 (S.D.N.Y. 2002) (“[A]

party’s persistent refusal to comply with a discovery order presents sufficient evidence of

willfulness, bad faith or fault.” (internal quotation marks and citation omitted)),

reconsideration denied, 285 F. Supp. 2d 331 (S.D.N.Y. 2002), aff’d, 93 F. App’x 328 (2d

Cir. 2004). Although Plaintiff is pro se and “may in general deserve more lenient treatment

than those [litigants] represented by counsel,” he is still obligated to comply with court

orders. McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988)

(explaining that pro se litigants have an obligation to comply with court orders, and

“[w]hen they flout that obligation they, like all litigants, must suffer the consequences of

their actions”). Accordingly, the first factor weighs in favor of dismissal.

The Court has also considered the efficacy of lesser sanctions, and concludes that

no other sanction other than dismissal is appropriate. As explained above, Plaintiff has

demonstrated that he does not intend to comply with court orders. Judge Foschio warned

Plaintiff on multiple occasions that his failure to comply with discovery orders could

warrant the imposition of sanctions, including dismissal. (See Dkt. 51 at 4 (“Plaintiff is

further advised that Plaintiff’s failure to comply fully with this Decision and Order may

result in sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(A) including dismissal of this

action.”); see also Dkt. 56 at 4 (“FAILURE TO COMPLY WITH ANY THE

FOREGOING MAY RESULT IN SANCTIONS PURSUANT TO FED.R.CIV.P.

37(b)(2), INCLUDING CIVIL CONTEMPT, AND ATTORNEYS FEES INCURRED

BECAUSE OF A PARTY’S OR AN ATTORNEY’S NON-COMPLIANCE.”)). These

warnings have not compelled Plaintiff to provide the required discovery responses.

Further, Plaintiff has previously ignored several attempts by Defendants to prompt him to

provide discovery responses, or to otherwise participate in discovery. (See, e.g., Dkt. 41;

Dkt. 45; Dkt. 45-2; see also Dkt. 60-1 at ¶ 6). The parties are unable to move the case

forward towards resolution if Plaintiff refuses to abide by court orders, and he has

consistently demonstrated that he will not do so. See Embuscado v. DC Comics, 347 F.

App’x 700, 701 (2d Cir. 2009) (finding that “deliberate and persistent noncompliance

rendered lesser sanctions inappropriate”). “Moreover, given Plaintiff's in forma pauperis

status . . ., it is unrealistic to expect Plaintiff to have the financial means to pay [a monetary]

sanction which, thus, is unlikely to deter future litigation misconduct.” Agosto v. Fischer,

No. 16-CV-00824A(F), 2019 WL 13259394, at *5 (W.D.N.Y. Mar. 28, 2019) (concluding

that dismissal was warranted due to “Plaintiff's obdurate behavior in refusing to cooperate

with discovery”).

Based on the record before it, the Court is left with the firm conviction that some

lesser sanction—such as exclusion of evidence—will not serve to convince Plaintiff that

he must comply with court orders. Rather, Plaintiff would likely treat some other sanction

with the same disregard he has given Judge Foschio’s prior discovery orders, even after

being granted an extension of time. Accordingly, this factor also weighs in favor of

dismissal.

The duration of Plaintiff’s non-compliance further weighs in favor of dismissal. The

first scheduling order was issued on March 25, 2021, requiring discovery to be completed

by March 2, 2022. (Dkt. 26 at ¶ 4). On March 2, 2022, after learning that Plaintiff had

been transferred from Fishkill to Coxsackie, Defendants requested an extension of time to

complete discovery, which was granted. (Dkt. 37; Dkt. 39). Defendants served Plaintiff

with discovery demands on April 30, 2022 (see Dkt. 60-1 at ¶ 5), and therefore those

discovery requests have been pending at this point for almost two years. In the interim,

Defendants have filed two motions to compel, the latter of which was granted by Judge

Foschio on March 30, 2023. (See Dkt. 51). Plaintiff’s discovery responses were due by

May 15, 2023. (See Dkt. 60-1 at ¶ 9). Despite these lengthy delays in moving the case

forward, Plaintiff still has not met any of his discovery obligations—and does not appear

to have any intention of doing so—and as such, these lengthy delays also weigh in favor

of dismissal. See, e.g., Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302-03 (2d Cir.

2009) (upholding district court’s dismissal of pro se litigant’s case where litigant

continually failed to comply with court orders over a period of six months); Dungan v.

Donahue, No. 12 CV 5139(ILG)(RLM), 2014 WL 2941240, at *4 (E.D.N.Y. June 30,

2014) (“It has been nearly four months since the Court expressly noted plaintiff’s ‘pattern

of delaying the case, ignoring court orders, and refusing to provide discovery,’ and six

months since the Court first admonished plaintiff for failing to cooperate with defense

counsel. . . . Such a protracted refusal to comply justifies dismissal.” (internal citations

omitted)).

Finally, Plaintiff has been warned in four case scheduling orders that any failure to

comply may result in sanctions pursuant to Rule 37(b)(2). (See Dkt. 26 at 5; Dkt. 40 at 4;

Dkt. 44 at 4; Dkt. 56 at 4). These warnings were in all capital letters and located

conspicuously at the end of the orders. (See id.). Further, Judge Foschio’s order on March

30, 2023, explicitly stated that “Plaintiff is further advised that Plaintiff’s failure to comply

fully with this Decision and Order may result in sanctions pursuant to Fed.R.Civ.P.

37(b)(2)(A) including dismissal of this action.” (Dkt. 51 at 4 (emphasis in original)).

Notwithstanding these warnings, Plaintiff still refuses to comply with Judge Foschio’s

order that he respond to Defendants’ discovery demands. Accordingly, this factor also

weighs in favor of dismissal.

Having carefully considered each of the aforementioned factors and finding that

each weighs in favor of dismissal, the Court concludes that dismissal of Plaintiff’s

complaint pursuant to Federal Rule of Civil Procedure 37(b)(2) is warranted.

B. Rule 41

Although the Court has concluded that dismissal is appropriate pursuant to Rule

37(b)(2), the Court also considers whether dismissal pursuant to Federal Rule of Civil

Procedure 41(b) is warranted. A court’s determination of whether to dismiss under Rule

41(b) “is guided by similar factors” to those that govern under Rule 37, with dismissal

under Rule 37 including “the additional factor of the willfulness of the noncompliant party

or the reason for the noncompliance,” Henry F. v. Woodlick, No. 13-CV-4261

(NGG)(RML), 2014 WL 5878122, at *6 (E.D.N.Y. Nov. 12, 2014) (internal quotation

marks and citation omitted), and “there is little distinction whether the dismissal is

technically made under Rule 41 or Rule 37,” Peters-Turnbull v. Bd. of Educ. of City of New

York, 7 F. App’x 107, 110 (2d Cir. 2001).

Rule 41(b) authorizes a district court to dismiss an action “[i]f the plaintiff fails to

prosecute or to comply with [the] rules or a court order . . . .” Fed. R. Civ. P. 41(b).

“Although Rule 41(b) does not define what constitutes a failure to prosecute, ‘[i]t can

evidence itself either in an action lying dormant with no significant activity to move it or

in a pattern of dilatory tactics.’” Cognotec Servs., Ltd. v. Morgan Guar. Trust, Co., No. 93

Civ. 4878 KTD, 1999 WL 627411, at *2 (S.D.N.Y. Aug. 18, 1999) (quoting Lyell Theatre

Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)). “Dilatory tactics ‘may consist, for

example, of groundless motions, repeated requests for continuances or persistent late

filings of court ordered papers.’” Id. While Rule 41 “refers to dismissal upon motion of a

defendant, the Supreme Court has made it clear that a court has the inherent authority to

dismiss an action sua sponte.” Lopez v. Comm’r of Soc. Sec., 110 F. Supp. 3d 489, 491

(W.D.N.Y. 2015) (internal quotation marks and citation omitted). “While a harsh remedy,

the rule is intended to serve as a rarely employed, but useful, tool of judicial administration

available to district courts in managing their specific cases and general caseload.” Id.

(internal quotation marks and citation omitted).

Before dismissing a case under Rule 41(b), the district court must weigh five factors,

many of which include the factors weighed by the court in assessing a Rule 37 dismissal:

(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 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.

Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (internal quotation marks and

citation omitted). “No single factor is generally dispositive.” Id. Weighing the five factors

listed above, the Court finds that the circumstances are “sufficiently extreme” to warrant

dismissal for failure to prosecute.

As explained above in section IV(A), supra, factors one (the duration of the

plaintiff’s failure to comply with the court order), two (whether the plaintiff was on notice

that failure to comply would result in dismissal), and five (whether the judge has adequately

considered a sanction less drastic than dismissal), all weigh in favor of dismissal. At the

time Defendants filed their motion to dismiss Plaintiff’s complaint, almost five months had

elapsed since Judge Foschio ordered Plaintiff to respond to Defendants’ discovery

demands, and the delays that occurred during that time were the result of Plaintiff’s own

conduct, i.e., his motion for an extension of time to complete discovery and his first motion

for injunctive relief. See Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001)

(explaining that in applying the first factor, the court should consider “(1) whether the

failures to prosecute were those of the plaintiff; and (2) whether these failures were of

significant duration”). Plaintiff was explicitly warned that his failure to comply could

result in the dismissal of his case. (See Dkt. 51 at 4). And beforehand, Judge Foschio

granted multiple extensions of time as a less drastic means of encouraging Plaintiff’s

participation in discovery, which Plaintiff ignored. See, e.g., Georgiadis v. First Boston

Corp., 167 F.R.D. 24, 26 (S.D.N.Y. 1996) (explaining that a sanction less drastic than

dismissal would not be appropriate, as “plaintiff seems to have great difficulty complying

with directions of the Court,” which was made “apparent in his failure to answer the[]

interrogatories,” and “in his failure to comply with the Court’s direction. . . .”).

Accordingly, the Court considers whether the third and fourth factors—whether

Defendants are likely to be prejudiced by further delay in the proceedings and a balancing

of the Court’s interest in managing its docket with Plaintiff’s interest in receiving a fair

chance to be heard—weigh in favor of dismissal.

The Court finds that Defendants are likely to be prejudiced by a further delay in the

proceedings. See Coats v. Dep’t of Veteran Affairs, 268 F. App’x 125, 127 (2d Cir. 2008)

(concluding that “when a plaintiff has unreasonably delayed, prejudice to the defendants

may be presumed”). Plaintiff filed this action over five years ago in August 2018.

Defendants served discovery demands April 2022, to which Plaintiff still has not

responded. Clearly, the passage of time will affect witness memories, and further delay

would only exacerbate those issues. See Georgiadis, 167 F.R.D. at 25 (explaining that the

plaintiff’s failure to respond to interrogatories, which sought identification of possible

witnesses, caused prejudice because “[t]he passage of time always threatens difficulty as

memories fade,” and “[g]iven the age of this case, that problem is severe already,” and

“[t]he additional delay that plaintiff has caused . . . can only make matters worse”).

Further, Defendants have devoted significant time and resources ascertaining Plaintiff’s

various whereabouts, responding to his motions for injunctive relief, and obtaining the

outstanding discovery, which could have been spent either moving this case towards a

resolution or in addressing other matters. In sum, the almost two-year delay results in a

significant prejudice to Defendants, and therefore this factor also weighs in favor of

dismissal.

The Court has also balanced its interest in managing its docket with Plaintiff’s

interest in receiving the chance to be heard. Over the past several years, Plaintiff has had

numerous opportunities to be heard. (See, e.g., Dkt. 9 (Plaintiff’s motion for an extension

of time to file an amended complaint); Dkt. 12 (Plaintiff’s motion for injunctive relief

regarding access to a typewriter at Fishkill); Dkt. 17 (Plaintiff’s motion for alternative

service); Dkt. 27 (Plaintiff’s motion for appointment of counsel); Dkts. 32 and 33

(miscellaneous letters from Plaintiff); Dkt. 35 (Plaintiff’s motion for reconsideration

regarding the appointment of counsel); Dkt. 52 (Plaintiff’s motion for an extension of time

to complete discovery); Dkt. 54 (Plaintiff’s motion for injunctive relief regarding access to

the law library resources at Wende); Dkt. 66 (Plaintiff’s cross-motion for a hearing

regarding the revocation of his IFP status); Dkt. 68 (Plaintiff’s motion for filing assistance);

Dkt. 70 (Plaintiff’s letter to the Court regarding the filing of his response)). Plaintiff has

also been able to adequately respond or reply to the motions currently before the Court.

(See Dkt. 59; Dkt. 62; Dkt. 71; Dkt. 74). Still, however, Plaintiff has not responded to

Defendants’ interrogatories or requests for admission, and he instead continues to focus on

the validity of his physical ailments and Defendants’ alleged attempts to prevent his

participation in this litigation. (See, e.g., Dkt. 71 at ¶¶ 55-56 (“Given this body of evidence,

it should be apparent that DOCCS is playing some type of ‘twisted game’ with the courts

[sic] and plaintiff’s health. . . . To this end, it is respectfully submitted, that, it is DOCCS

who should be ‘offensively estopped’ from now raising any issue regarding plaintiff’s

status as a quadriplegic; however, if there is ‘any’ doubt left a hearing w[ith] further expert

testimony could shine light.”)).

Importantly, Plaintiff is not an inexperienced first-time litigant. In 2007, the

Northern District of New York revoked Plaintiff’s special status as a pro se civil rights

litigant, finding that he had filed “at least 10 other federal and state court actions and

appeals . . . involv[ing] claims of torts or civil rights violations arising from the conditions

of his imprisonment.” Shomo, 2007 WL 2580509, at *4. And Plaintiff has only continued

to gain experience. (See Dkt. 63-1 at ¶ 10; Dkt. 63-7). Given this background, the Court

is convinced that Plaintiff is purposefully avoiding his discovery obligations as a litigation

tactic. In other words, at this point in the case, Plaintiff has been afforded ample

opportunity to be heard, and that must yield to the Court’s interest in managing its docket,

particularly considering that Plaintiff has demonstrated—time and again—that he will not

comply with court orders. See Georgiadis, 167 F.R.D. at 25 (“[I]n the circumstances of

this case, the Court’s interest in managing its docket, after all of the difficulties caused by

plaintiff in this case, now outweighs plaintiff’s interest in being heard on the merits.”).

Accordingly, this factor also weighs in favor of dismissal.

Having carefully considered the aforementioned factors and concluding that each

weighs in favor of dismissal of Plaintiff’s case, the Court concludes that dismissal is

alternatively warranted under Federal Rule of Civil Procedure 41(b).

CONCLUSION

Accordingly, for the reasons stated above, Defendants’ motion to revoke Plaintiff’s

IFP status (Dkt. 63) and motion to strike Plaintiff’s filing at Docket 71 as an unauthorized

and oversized sur-reply (Dkt. 72) are denied. Plaintiff’s motions for injunctive relief (Dkt.

54; Dkt. 68) and cross-motion for a hearing regarding the revocation of his IFP status (Dkt.

66) are denied. Defendants’ motion to dismiss (Dkt. 60) is granted.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: March 14, 2024

Rochester, New York