Potocki v. Strafford County HOC 07-CV-071-SM 09/19/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Derek Potocki, Plaintiff
v. Civil No. 0 7-cv-O 71-SM Opinion No. 2008 DNH 174 Warren Dowalibv, Superintendent, Strafford County House of Corrections; Kirk DeRusha; and Steven Pollard, Defendants
O R D E R
Pro se plaintiff, Derek Potocki, filed this civil rights
action, claiming he was subjected to unconstitutional treatment
and conditions of confinement while he was detained at the
Strafford County House of Corrections ("SCHC"). See 42 U.S.C.
§ 1983. Defendants move to dismiss Potocki's complaint as a
sanction for his ongoing failure to provide court-ordered
discovery. For the reasons discussed below, that motion is
granted.
Background
On September 12, 2007, the Magistrate Judge issued a Report
and Recommendation in which he concluded that Potocki's complaint
advanced three viable claims over which the court has subject
matter jurisdiction: excessive force; harassment; and
unconstitutional conditions of confinement. As to Potocki's fourth claim - that defendant Dowaliby refused to file criminal
charges against a corrections officer who allegedly assaulted
Potocki in his cell - the Magistrate Judge recommended that it be
dismissed. Potocki did not object or respond in any way to that
Report and Recommendation and, on October 3, 2007, the court
approved i t .
On March 26, 2008, defendants served Potocki with a set of
interrogatories. In the cover letter accompanying those
interrogatories, counsel for defendants informed Potocki that,
absent an extension of time, he was required to provide his
responses within thirty days. Potocki was also informed that if
he failed to do so, "sanctions may apply to your case." Exhibit
A to defendants' Motion to Compel (document no. 20-2). Counsel
explained that those sanctions "can include dismissal of your
case." Xd. Plaintiff failed to respond. Accordingly, on May 1,
2008, defense counsel again wrote to Potocki, reminding him of
his obligation to provide written response to the interrogatories
and informing him that:
If you do intend to answer the interrogatories, please notify me immediately. I will need you to propose a time deadline when I may expect to receive written answers, however. If I do not hear from you I will file a motion for sanctions, including dismissal, in the very near future.
Exhibit B to defendants' Motion to Compel.
2 Two weeks later, on May 14, 2008, when plaintiff failed to
respond to counsel's letter (and still had not provided his
answers to the interrogatories), counsel filed a motion to compel
(document no. 20). Again, Potocki remained silent. Accordingly,
on June 10, 2008, the court granted defendants' motion to compel
and ordered Potocki to provide his responses to the
interrogatories within ten days, failing which he would be
exposed to possible sanctions, including dismissal. He failed to
do so.1
On June 25, 2008, defendants filed the pending motion to
dismiss Potocki's claims for failure to provide court-ordered
discovery. Although nearly three months have passed since
defendants' filed their motion to dismiss, Mr. Potocki has not
filed an objection.
1 Because defendants learned that Mr. Potocki had been transferred from SCHC to the Essex County Correctional Facility, they wanted to insure that he received a copy of the court's order on their motion to compel. Accordingly, they had that order served, by hand, upon Potocki and witnessed by two corrections officers. Exhibit A to Supplement to Defendants' Motion to Dismiss (document no. 22). Parenthetically, the court notes that it is Potocki's obligation to keep opposing counsel and the court informed of any changes in his mailing address. See Local Rule 83.6(e).
3 Discussion
Citing the Federal Rules of Civil Procedure, defendants move
to dismiss Potocki's claims, with prejudice, as a sanction for
his failure to provide court-ordered discovery. Although their
motion does not identify which specific rule(s) they are
invoking, presumably defendants rely on Rule 37. That rule
provides that, if a party:
fails to obey an order to provide or permit discovery, . . . the court where the action is pending may issue further just orders. They may include the following: . . . (v) [an order] dismissing the action or proceeding in whole or in part.
Fed. R. Civ. P. 37(b)(2)(A). Additional authority for the
sanction sought by defendants may be found in Rule 41, which
provides, in pertinent part, that:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under the subdivision (b) . . . operates as an adjudication on the merits.
Fed. R. Civ. P. 4 1 (b).
It is well-established that the authority to dismiss a
party's claims for failure to comply with court-ordered discovery
is committed to the court's discretion. See, e.g.. Benitez-
Garcia v. Gonzalez-Veqa, 468 F.3d 1, 4 (1st Cir. 2006); Torres-
4 Vargas v. Pereira, 431 F.3d 389, 392 (1st Cir. 2005). Whether
such authority should be exercised in a particular case depends
upon the "chronology of the case and the totality of the
attendant circumstances." Torres-Varqas, 431 F.3d at 392. Some
of the factors the court should consider under such circumstances
include:
the severity of the violation, the legitimacy of the party's excuse, repetition of violations, the deliberateness vel non of the misconduct, mitigating excuses, prejudice to the other side and to the operations of the court, and the adequacy of lesser sanctions.
Robson v. Hallenbeck, 81 F.3d 1, 2 (1st Cir. 1996).
Given the totality of circumstances presented in this case,
the court is persuaded that defendants are entitled to dismissal
of all of plaintiff's claims. Although Potocki has not honored
his obligation to keep the court and opposing counsel apprised of
changes in his mailing address, it appears that he has received
actual notice and copies of all communications from defendants
(including the set of interrogatories and the two letters sent by
defense counsel), as well as all court orders (including the
order granting defendants' motion to compel). See generally
Docket Entries of June 16 and June 26, 2008 (noting that Mr.
Potocki had been transferred to FMC, Springfield, Missouri, and
notifying defense counsel of the same). Nevertheless, he has
5 remained silent. His responses to the interrogatories were due
five months ago and the court order directing him to produce
those response within ten days (or face sanctions) was issued
more than three months a g o .
Potocki has offered neither an explanation nor an excuse for
his failure to comply with court-ordered discovery. And, because
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Potocki v. Strafford County HOC 07-CV-071-SM 09/19/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Derek Potocki, Plaintiff
v. Civil No. 0 7-cv-O 71-SM Opinion No. 2008 DNH 174 Warren Dowalibv, Superintendent, Strafford County House of Corrections; Kirk DeRusha; and Steven Pollard, Defendants
O R D E R
Pro se plaintiff, Derek Potocki, filed this civil rights
action, claiming he was subjected to unconstitutional treatment
and conditions of confinement while he was detained at the
Strafford County House of Corrections ("SCHC"). See 42 U.S.C.
§ 1983. Defendants move to dismiss Potocki's complaint as a
sanction for his ongoing failure to provide court-ordered
discovery. For the reasons discussed below, that motion is
granted.
Background
On September 12, 2007, the Magistrate Judge issued a Report
and Recommendation in which he concluded that Potocki's complaint
advanced three viable claims over which the court has subject
matter jurisdiction: excessive force; harassment; and
unconstitutional conditions of confinement. As to Potocki's fourth claim - that defendant Dowaliby refused to file criminal
charges against a corrections officer who allegedly assaulted
Potocki in his cell - the Magistrate Judge recommended that it be
dismissed. Potocki did not object or respond in any way to that
Report and Recommendation and, on October 3, 2007, the court
approved i t .
On March 26, 2008, defendants served Potocki with a set of
interrogatories. In the cover letter accompanying those
interrogatories, counsel for defendants informed Potocki that,
absent an extension of time, he was required to provide his
responses within thirty days. Potocki was also informed that if
he failed to do so, "sanctions may apply to your case." Exhibit
A to defendants' Motion to Compel (document no. 20-2). Counsel
explained that those sanctions "can include dismissal of your
case." Xd. Plaintiff failed to respond. Accordingly, on May 1,
2008, defense counsel again wrote to Potocki, reminding him of
his obligation to provide written response to the interrogatories
and informing him that:
If you do intend to answer the interrogatories, please notify me immediately. I will need you to propose a time deadline when I may expect to receive written answers, however. If I do not hear from you I will file a motion for sanctions, including dismissal, in the very near future.
Exhibit B to defendants' Motion to Compel.
2 Two weeks later, on May 14, 2008, when plaintiff failed to
respond to counsel's letter (and still had not provided his
answers to the interrogatories), counsel filed a motion to compel
(document no. 20). Again, Potocki remained silent. Accordingly,
on June 10, 2008, the court granted defendants' motion to compel
and ordered Potocki to provide his responses to the
interrogatories within ten days, failing which he would be
exposed to possible sanctions, including dismissal. He failed to
do so.1
On June 25, 2008, defendants filed the pending motion to
dismiss Potocki's claims for failure to provide court-ordered
discovery. Although nearly three months have passed since
defendants' filed their motion to dismiss, Mr. Potocki has not
filed an objection.
1 Because defendants learned that Mr. Potocki had been transferred from SCHC to the Essex County Correctional Facility, they wanted to insure that he received a copy of the court's order on their motion to compel. Accordingly, they had that order served, by hand, upon Potocki and witnessed by two corrections officers. Exhibit A to Supplement to Defendants' Motion to Dismiss (document no. 22). Parenthetically, the court notes that it is Potocki's obligation to keep opposing counsel and the court informed of any changes in his mailing address. See Local Rule 83.6(e).
3 Discussion
Citing the Federal Rules of Civil Procedure, defendants move
to dismiss Potocki's claims, with prejudice, as a sanction for
his failure to provide court-ordered discovery. Although their
motion does not identify which specific rule(s) they are
invoking, presumably defendants rely on Rule 37. That rule
provides that, if a party:
fails to obey an order to provide or permit discovery, . . . the court where the action is pending may issue further just orders. They may include the following: . . . (v) [an order] dismissing the action or proceeding in whole or in part.
Fed. R. Civ. P. 37(b)(2)(A). Additional authority for the
sanction sought by defendants may be found in Rule 41, which
provides, in pertinent part, that:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under the subdivision (b) . . . operates as an adjudication on the merits.
Fed. R. Civ. P. 4 1 (b).
It is well-established that the authority to dismiss a
party's claims for failure to comply with court-ordered discovery
is committed to the court's discretion. See, e.g.. Benitez-
Garcia v. Gonzalez-Veqa, 468 F.3d 1, 4 (1st Cir. 2006); Torres-
4 Vargas v. Pereira, 431 F.3d 389, 392 (1st Cir. 2005). Whether
such authority should be exercised in a particular case depends
upon the "chronology of the case and the totality of the
attendant circumstances." Torres-Varqas, 431 F.3d at 392. Some
of the factors the court should consider under such circumstances
include:
the severity of the violation, the legitimacy of the party's excuse, repetition of violations, the deliberateness vel non of the misconduct, mitigating excuses, prejudice to the other side and to the operations of the court, and the adequacy of lesser sanctions.
Robson v. Hallenbeck, 81 F.3d 1, 2 (1st Cir. 1996).
Given the totality of circumstances presented in this case,
the court is persuaded that defendants are entitled to dismissal
of all of plaintiff's claims. Although Potocki has not honored
his obligation to keep the court and opposing counsel apprised of
changes in his mailing address, it appears that he has received
actual notice and copies of all communications from defendants
(including the set of interrogatories and the two letters sent by
defense counsel), as well as all court orders (including the
order granting defendants' motion to compel). See generally
Docket Entries of June 16 and June 26, 2008 (noting that Mr.
Potocki had been transferred to FMC, Springfield, Missouri, and
notifying defense counsel of the same). Nevertheless, he has
5 remained silent. His responses to the interrogatories were due
five months ago and the court order directing him to produce
those response within ten days (or face sanctions) was issued
more than three months a g o .
Potocki has offered neither an explanation nor an excuse for
his failure to comply with court-ordered discovery. And, because
his silence cannot reasonably be attributed to a lack of notice
of the proceedings in this case, it is not unreasonable to infer
that, in light of his transfer to a different correctional
facility, he is simply no longer interested in pursuing his
claims against defendants.
Conclusion
Having considered the totality of circumstances presented in
this case, as well as the factors identified by the court of
appeals, the court concludes that defendants are entitled to the
relief they seek as a sanction for plaintiff's ongoing failure to
produce court-ordered discovery. See generally Torres-Varqas.
431 F.3d at 393 ("It is settled law that a party flouts a court
order at his peril. Where, as here, the court appropriately
forewarns a plaintiff of the consequences of future noncompliance
with an unambiguous order, the court need not exhaust less toxic
6 sanctions before dismissing a case with prejudice.") (citation
omitted).
In light of the foregoing, defendants' Motion to Dismiss
(document no. 21) is granted and plaintiff's claims are
dismissed, with prejudice. The Clerk of Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
S/teven J/ McAuliffe Chief Judge
September 19, 2008
cc: Derek Potocki, pro se Corey M. Belobrow, Esq.