Opinion
20-CV-3348 (RA)(JW)
07-11-2024
ALROY D. RICHARDS, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
TO THE HON. RONNIE ABRAMS, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
The Plaintiff, Alroy Richards, brings this 42 U.S.C. § 1983 action alleging that he was unlawfully stopped and issued a traffic ticket by Defendant Officer Saroff. Dkt. No. 55. Despite several warnings from this Court, Plaintiff repeatedly refused to sign required releases. As a result, Defendant moved to dismiss the case under Rules 37 and 41(b). Dkt. No. 154. Because the Court has considered every alternative short of case-ending sanctions, and Plaintiff still refuses to sign the releases, the Court recommends that the Motion to Dismiss be GRANTED and the case dismissed with prejudice.
I. BACKGROUND
1. The First Warning
In November 2023, the Court held a case management conference to discuss various discovery disputes. Dkt. No. 130. One of the disputes was that Plaintiff refused to sign a HIPPA release. Dkt. No. 138 at 20. At that conference, the Court explained to the Plaintiff that because he was alleging that the traffic encounter caused him emotional harm and that because he saw mental health professionals to address that emotional harm, he needed to sign the HIPPA release. As the Court said:
So when we talk about damages, if someone, after an upsetting event, gets treatment like it sounds like you have, then if the City is liable, if they've done something wrong, part of what you could say is the harm is the ongoing sort of emotional harm that this has caused. So what that means is in order for you to claim that, you would have to be telling them, “here's the different therapists that I saw,” signing HIPAA releases so that they can get those records. Because, you know, somebody's life is long and complicated and has many things that happen.So the City would have the right to try to argue, “well, yes, you know, Mr. Richards is upset and maybe has some sleepless nights or whatever it is, but maybe that's caused by something other than just this one day with Officer Saroff.” Right? That would be part of what would be disputed in the case.so it sounds like your mental health records would be something that the City would want and would be entitled to.
Another issue before the Court that day was that the Plaintiff refused to sign a CPL 160.55 release that would provide the Defendant access to his traffic file. The Parties discussed that there were multiple reasons that the traffic file needed to be disclosed.
First, the traffic file is relevant to determining liability. Indeed, Plaintiff himself invoked his clean driving record: “There are no traffic tickets before October 15, 2018...there are no traffic tickets.” Dkt. No. 138 at 31. Second, the traffic file could be relevant to Plaintiff's credibility, as at other times during the conference, Plaintiff denied having tickets but later clarified, “excepting for tow tickets that the City of New York and the police department issued me which I proved to be fraudulent.” Dkt. No. 138 at 31-32. Third, the question could be relevant to Plaintiff's alleged damages. As the Defendant argued, the City “could make a credible argument that he's suffered less distress because he has received tickets before, and it goes to the emotional damages.” Dkt. No. 138 at 31.
At the conference, the Court took pains to explain to the Plaintiff why he needed to provide the traffic file:
Just like you don't have to take Officer Saroff's word for it, the City doesn't have to take your word for it. They have the right to get the records themselves. Now, if they get the records and it shows exactly what you say, that the only other traffic infractions where you would've had a police interaction was this February...then there's nothing they can do with that at trial. It won't help them...but if they get your traffic file and it shows you do have something from 2017 where you had a very similar interaction with the police and yet you're not claiming damages from that, that will help them. So they don't have to take your word for it. But what I am saying is they have a right to get the full record for the reasons that they have articulated.
The Plaintiff was warned that there would be sanctions if he refused to provide the release. The Court explained, “Now, if you don't sign the release, which I am ordering you to sign, there can be consequences for the case. if you refuse to cooperate with that, there can be sanctions which could even include the dismissal of your case.” Dkt. No. 138 at 35.
Following that conference, the Court ordered Plaintiff to (1) “sign the CPL 160.55 release” and (2) “sign the City's proposed HIPPA releases for mental health providers.” Dkt. No. 129. The Order even limited the HIPPA release to mental health records and the CPL 160.55 release to only traffic records. Dkt. No. 129.
Nevertheless, Plaintiff refused to comply with the Court's November 1, 2023 Order.
2. The Second Warning
In January 2024, Defendant filed a letter motion to compel Plaintiff to execute the § 160.50 release and medical releases “by a date certain, upon pain of dismissal.” Dkt. No. 141. On February 22, 2024, the Court scheduled a discovery conference for April 3rd and further ordered Defendant to file on the docket the proposed § 160.55 and HIPAA release forms so the Court could ensure the forms were not asking Plaintiff to release more than what the Court had ordered. Dkt. No. 147.
On March 15, 2024, the Defendant filed the proposed releases on the docket. Dkt. No. 149. On April 1, 2024, the Court informed the parties that it reviewed the proposed §§ 160.50/160.55 release submitted and ordered Defendant to (1) amend the fourth paragraph of the proposed release and (2) bring hard copies of any forms or releases that it seeks plaintiff to sign to the April 3, 2024 conference. Dkt. No. 152.
On April 3, 2024, the Court held a second discovery conference. Dkt. No. 153. At that conference, the Court gave Plaintiff an extensive opportunity to be heard, asked the Defendant to provide the Plaintiff with a protective Order to address his privacy concerns, and emphasized the need for Plaintiff to provide the required releases. Nevertheless, Plaintiff stated on the record numerous times that he would not sign “any” release forms. Dkt. No. 154 at 1.
The Court notes that the pro se Plaintiff, Mr. Richards, was generally uncooperative and unruly at the conferences. Mr. Richards frequently interrupted the Court and opposing counsel. While the relevance of Mr. Richards' disruptions is limited, his unwillingness to cooperate at the conference is relevant to a determination of whether Mr. Richards is likely to cooperate with the future directives of this Court.
3. The Third Warning
Following the April 3rd conference, the Court ordered that “Plaintiff has until April 16th to review the protective order and email to Defendant's counsel signed copies of the 160.55 and HIPPA release forms.” Dkt. No. 154 at 2. The Court clearly explained the consequences of a failure to do so: “However, should Plaintiff not send Defendant's counsel signed copies of the release forms by April 16th, the Defendant may submit a motion for case-ending sanctions.” Id. The Court provided the Plaintiff with an opportunity to avoid any sanctions, stating “If Plaintiff sends all the signed forms by April 16th, the Court will not impose sanctions.” Dkt. No. 154.
On April 16th, the Plaintiff submitted a letter that among other things said, that Plaintiff “will DO AN AFFIDAVIT regarding NO DRIVING RECORDS prior to 10/15/2018... Further legal advice will be sought, as it relates to any submissions.” Dkt. No. 158 at 2. Plaintiff submitted another letter on April 23rd, advancing various legal theories of liability and arguing that the NYPD has engaged in “psychological warfare.” Dkt. No. 161 at 9.
It is now July, yet Plaintiff never provided the required releases.
4. Procedural Posture
Following Plaintiff's failure to provide the releases by the due date, the Defendant moved to dismiss the case pursuant to Rule 37 and 41(b). Dkt. No. 157. Plaintiff submitted an Opposition on April 30th. Defendant replied on May 8th. As the discovery dispute falls within General Pretrial, the matter has been referred to this Court. Dkt. No. 9.
II. LEGAL STANDARD
1. Rule 41
Federal Rule of Civil Procedure 41(b) states that a defendant may move to dismiss an action if “the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). While district courts have “discretion to effect dismissal pursuant to Rule 41(b),” the Second Circuit has cautioned that such discretion “should be exercised sparingly and only when the district judge is ‘sure of the impotence of lesser sanctions.'” Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-01005 (ER), 2014 WL 793082, at *2 (S.D.N.Y. Feb. 21, 2014) (citing cases) (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980)); see also Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009).
In considering whether to dismiss a case under Rule 41, courts consider five factors: (1) the duration of plaintiff's failure to comply with court orders; (2) notice to plaintiff that failure to comply would result in dismissal; (3) possible prejudice to defendants from further delay; (4) the balance between the interest of managing the court's docket and the plaintiff's right to be heard; and (5) consideration of lesser sanctions. See Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999); see also Smith v. Department of Corrections, No. 20-cv-09501 (RA) (SDA), 2021 WL 11646319 (S.D.N.Y., 2021). None of these factors is independently dispositive, and the Court reviews the dismissal in light of the record as a whole. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
“Refusal to comply with discovery requests is grounds for dismissal under Rule 41(b).” Lenoir v. Best Buy Co. Inc., No. 19-CV-10370 (RA) (OTW), 2021 WL 11678995, at *4-5 (S.D.N.Y., 2021)(citing Harding v. Goord, 135 Fed.Appx. 488, 488-89 (2d Cir. 2005); Ortega v. Mutt, No. 14-CV-9703 (JGK), 2017 WL 1133429, *1-2 (S.D.N.Y. Mar. 24, 2017)).
2. Rule 37(b)
Rule 37(b)(2)(A)(v) provides that a Court may impose sanctions on a litigant for “fail[ure] to obey an order to provide or permit discovery,” including “dismissing the action or proceeding in whole or in part.” Considerations for dismissal under Rules 41(b) and 37(b)(2)(A) often involve significant overlap. See Peters-Turnbull v. Board of Educ. of City of New York, 7 Fed.Appx. 107, 109-10 (2d Cir. 2001). Thus, “there is little distinction whether the dismissal is technically made under Rule 41 or Rule 37.” Id. When considering whether to dismiss a case pursuant to Rule 37(b), the Second Circuit considers four factors: (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. World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012); Leibovitz v. City of New York, No. 14-CV-3297 (RA) (JCF), 2017 WL 1314122 (S.D.N.Y., 2017).
III. DISCUSSION
As will be discussed in greater detail below, since the Plaintiff repeatedly ignored this Court's clear directives and warnings, after weighing the relevant factors, the Court holds that the Motion should be granted and the case dismissed.
1. The Duration Of Plaintiff's Failure To Comply With Court Orders
The first factor is “the duration of a plaintiff's failure to comply with court orders.” See Shannon, 186 F.3d at 193-94. This factor weighs in favor of dismissal. The Court ordered the Plaintiff to sign the releases in November 2023. Dkt. No. 129. Plaintiff has flouted the Court's directive for over eight months.
2. Notice To Plaintiff That Failure To Comply Would Result In Dismissal
The second factor is “notice to plaintiff that failure to comply would result in dismissal.” See Shannon, 186 F.3d at 193-94.
As discussed above, Plaintiff was repeatedly warned that the failure to provide the required releases would result in dismissal. Plaintiff was warned at least three different times. First, at the November conference, Plaintiff was warned, “if you refuse to cooperate ...there can be sanctions which could even include the dismissal of your case.” Dkt. No. 138 at 35. Second, at the April conference, the Court repeatedly warned Plaintiff that the Defendants would be permitted to move to dismiss if he did not comply. Nevertheless, Plaintiff stated on the record numerous times that he would not sign “any” release forms. Dkt. No. 154 at 1. Finally, Plaintiff was warned a third time in the April 3, 2024 Order: “should Plaintiff not send Defendant's counsel signed copies of the release forms by April 16th, the Defendant may submit a motion for case-ending sanctions.” Dkt. No. 154 at 2.
Thus, this factor also weighs in favor of dismissal.
3. Possible Prejudice To Defendants From Further Delay
The third factor is “possible prejudice to defendants from further delay.” See Shannon, 186 F.3d at 193-94. The Court agrees with the Defendant that it “has already faced significant prejudice insofar as he has been unable to move this case forward without the pertinent releases.” Dkt. No. 157 at 3. Moreover, “when a plaintiff offers no reasonable excuse for the delay,” as is the case here, prejudice to the defendant is presumed because “as litigation drags on, evidence can be lost and discovery becomes more difficult.” Sports Garten LLC v. Sunday Night Productions, Inc., 2023 WL 10967725 (E.D.N.Y., 2023)(citing Montanez-Garcia v. City of New York, 16-CV-6479 (LAP), 2018 U.S. Dist. LEXIS 106807, at *5-6 (S.D.N.Y. June 25, 2018)). As costs and time devoted to the case increase, the Defendants' relative position is weakened. Plaintiff cannot be permitted to attain a litigation advantage by flouting this Court's orders. Moreover, in light of the extensive delay in the case and the resulting prejudice, lesser sanctions that would result in even more delays appear less reasonable.
Thus, the significant delay, the lack of any colorable excuse, and the inability to move the case forward prejudice the Defendants, and this factor also weighs in favor of dismissal.
4. The Balance Between The Interest Of Managing The Court's Docket And The Plaintiff's Right To Be Heard
The fourth factor is “the balance between the interest of managing the court's docket and the plaintiff's right to be heard.” See Shannon, 186 F.3d at 193-94. The Court once again agrees with the Defendant that “Plaintiff's case should not displace precious judicial resources for litigants who are actually moving their case forward. Plaintiff has decided instead to waste the resources of the Court and defendant, and continuously failed to comply with Court Orders, despite multiple warnings.” Dkt. No. 157 at 3. Thus, this factor also weighs in favor of dismissal.
5. Consideration Of Lesser Sanctions.
The fifth factor is “the consideration of lesser sanctions.” See Shannon, 186 F.3d at 193-94. The Court has considered lesser sanctions and finds them unlikely to be effective here.
First, Plaintiff has repeatedly refused to provide the releases, and his clear statements that he would “never” provide the releases indicate that alternative measures would lead to the same result. See Transcript, (April 3, 2024) Dkt. No. 164 at 22 (“I will never, and I will tell anyone anywhere in this world, Your Honor...I'm saying I will never sign anything, give anyone any authorization...”).
As courts in the Southern District have held, Plaintiff's “continued defiance of court orders after being warned that the consequence of non-compliance is dismissal indicates that lesser sanctions would be an exercise in futility.” See Workneh v. Super Shuttle International, Inc., 2020 WL 3492000, at *10 (S.D.N.Y., 2020). Here, Plaintiff's “intransigence acts as a complete roadblock to any other resolution but dismissal with prejudice.” Watkins v. Marchese, 2015 WL 4605660, at *15 (S.D.N.Y., 2015); see generally Saint-Fleur v. JPMorgan Chase Bank, N.A., 2024 WL 3185077 (S.D.N.Y., 2024); see generally Burgess v. Goodman, 2019 WL 719199 (S.D.N.Y., 2019)(dismissing complaint with prejudice for failing to provide HIPPA releases).
Second, the Court has considered imposing a monetary penalty, or even escalating penalties, to encourage the Plaintiff to comply. However, the Court determines that it is not in the best interests of justice to impose a fine likely to exceed any feasible amount Plaintiff could recover in the lawsuit. Relatedly, given Plaintiff's intransigence, any fine low enough to be proportional to the value of the case would be insufficient to encourage Plaintiff to comply. Thus, any reasonable fine would be futile.
Third, the Court has considered the possibility of striking Plaintiff's claims to recover emotional damages. While this would remove any need for Plaintiff to sign the HIPPA release, this lesser sanction would not address Plaintiff's refusal to authorize the release of his traffic file. The traffic file, while relevant to damages, is also relevant to Defendant's liability and Plaintiff's credibility.
Fourth, the Court has considered the possibility of an adverse inference instead of dismissal. See generally Rivera v. Federlin, 2009 WL 5062112 (S.D.N.Y., 2009). While the Court could direct that an adverse inference instruction be provided to the trier of fact with respect to the traffic file, this would not entirely prevent the Plaintiff from benefitting from his misconduct.
To start, it is unclear what the exact adverse inference would be. On the one hand, if Plaintiff's' traffic file contained numerous tickets, it could support the argument he continues to put forward that he was targeted unfairly and there is “a pattern.” On the other hand, if Plaintiff's traffic file is clean, it would support his argument that he was emotionally harmed by the incident, it would support the inference it is unlikely he violated any traffic laws, and it would bolster his credibility. Plaintiff cannot have it both ways.
The Court notes that Judge Abrams dismissed all claims aside from the Fourth Amendment claim against Defendant Officer Saroff. See generally Dt No. 100.
Finally, the Court has an interest in truth. Plaintiff's failure to provide his records deprives the Defendants and the Court of an ability to appreciate the full context surrounding the allegations. Thus, an adverse inference does not adequately ensure Plaintiff does not benefit from his refusal to comply with the Court's directives. Therefore, the Court has considered lesser sanctions and finds they would not be effective.
Thus, after considering the five factors, the Court recommends that the case be dismissed pursuant to Rule 41(b).
6. Rule 37(b)
As discussed above, considerations for dismissal under “Rules 41(b) and 37(b)(2)(A) involve significant overlap.” See Peters-Turnbull v. Board of Educ. of City of New York, 7 Fed.Appx. 107, 109-10 (2d Cir. 2001). Thus, “there is little distinction whether the dismissal is technically made under Rule 41 or Rule 37.” Id.
While the Court need not separately analyze the Motion under Rule 37(b), for the sake of thoroughness, the Court notes that (1) Plaintiff's noncompliance was willful, as he has no valid excuse for noncompliance; (2) as discussed above, lesser sanctions would not be effective; (3) the duration of noncompliance is unacceptably long, eight months; and (4) Plaintiff was warned of the consequences of noncompliance at least three times. World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012); Leibovitz v. City of New York, No. 14- CV-3297 (RA) (JCF), 2017 WL 1314122 (S.D.N.Y., 2017). Thus, the case should also be dismissed pursuant to Rule 37(b).
IV. RECOMMENDATION
Despite several warnings, Plaintiff has repeatedly refused to provide required releases. Thus, the Court recommends that Defendants' Motion to Dismiss be GRANTED and the case dismissed.
The Clerk of the Court is respectfully requested to close Dkt. Nos. 120, 128, 141, and 157.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Abrams. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. SeeThomas v. Arn, 474 U.S. 140 (1985); Cephasv. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.