12-736
Phelan v. Cambell, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of January, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges,
10 RICHARD W. GOLDBERG,
11 Judge*.
12 _____________________________________
13
14 KENNETH J. PHELAN,
15
16 Plaintiff-Appellant,
17
18 -v.- 12-736
19
20 JAMES CAMBELL, SHERIFF OF ALBANY COUNTY,
21 INDIVIDUALLY AND OFFICIALLY, DON HOWELL,
22 CORRECTION OFFICER, ALBANY COUNTY JAIL,
23 INDIVIDUALLY AND OFFICIALLY, ALBANY COUNTY,
24 ED REMILLARD, CORRECTION OFFICER,
25 ALBANY COUNTY JAIL, CHIEF MOONEY,
*
The Honorable Richard W. Goldberg, of the United States
Court of International Trade, sitting by designation.
1
1 ALBANY COUNTY JAIL, INDIVIDUALLY AND OFFICIALLY,
2 CHRISTINE MORIARITY, AKA CHRISTINE,
3 LORI HORN, AKA LAURIE, JOHN DOE,
4 MEDICAL DOCTOR AT ALBANY COUNTY JAIL,
5 INDIVIDUALLY AND OFFICIALLY,
6
7 Defendants-Appellees.
8 _____________________________________
9
10 FOR PLAINTIFF-APPELLANT: Kenneth J. Phelan, pro se, Five
11 Points Correctional Facility,
12 Romulus, New York.
13
14 FOR DEFENDANTS-APPELLEES
15 James L. Campbell, Don
16 Howell, Ed Remillard, Chief
17 Mooney and Albany County: Robert P. Roche, Albany, NY.
18
19 FOR DEFENDANTS-APPELLEES
20 Christine Moriarity and
21 Lori Horn: Donald P. Ford, Thuillez, Ford,
22 Gold, Butler & Young, L.L.P.,
23 Albany, NY.
24
25
26 Appeal from a judgment of the United States District
27 Court for the Northern District of New York (Mordue, J.;
28 Treece, M.J.).
29
30 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
31 AND DECREED that the order is AFFIRMED.
32 Appellant Kenneth J. Phelan, pro se, appeals from the
33 district court’s February 14, 2012 Amended Memorandum-
34 Decision and Order adopting the magistrate judge’s
35 recommendation that the court grant Appellees’ motion to
36 dismiss Appellant’s amended 42 U.S.C. § 1983 prisoners’
37 rights complaint, pursuant to Federal Rule of Civil
2
1 Procedure 37, as a sanction for Appellant’s failure to
2 submit to a deposition. We assume the parties’ familiarity
3 with the underlying facts, the procedural history of the
4 case, and the issues on appeal.
5 We review the imposition of sanctions, including
6 dismissal, for abuse of discretion, and the factual findings
7 made in support of the district court’s decision for clear
8 error. See S. New England Tel. Co. v. Global NAPs Inc., 624
9 F.3d 123, 143 (2d Cir. 2010). “[I]n evaluating a district
10 court’s exercise of discretion to dismiss an action under
11 Rule 37,” this Court has considered: “(1) the willfulness of
12 the non-compliant party or the reason for noncompliance;
13 (2) the efficacy of lesser sanctions; (3) the duration of
14 the period of noncompliance, and (4) whether the
15 non-compliant party had been warned of the consequences of
16 . . . noncompliance.” Agiwal v. Mid Island Mortg. Corp.,
17 555 F.3d 298, 302 (2d Cir. 2009) (alteration in original)
18 (internal quotation marks omitted); see also S. New England
19 Tel. Co., 624 F.3d at 144 (noting that “these factors are
20 not exclusive, and they need not each be resolved against
21 the party challenging the district court’s sanctions for
22 [this Court] to conclude that those sanctions were within
3
1 the [district] court’s discretion”). Where a plaintiff
2 appears pro se, dismissal with prejudice may be imposed only
3 if “a warning has been given that noncompliance can result
4 in dismissal.” Valentine v. Museum of Modern Art, 29 F.3d
5 47, 50 (2d Cir. 1994) (per curiam).
6 Reviewing the record in light of these principles, we
7 conclude that the district court properly dismissed the
8 amended complaint. Appellant wilfully refused to comply
9 with the magistrate judge’s discovery orders, including the
10 court’s orders requiring Appellant to submit to a
11 deposition. Despite Appellant’s claims on appeal that he
12 did not refuse to appear, the record establishes that he
13 told counsel for some of the Appellees not to travel to the
14 prison for the deposition because he would refuse to be
15 deposed. The first factor thus weighs against Appellant.
16 See Agiwal, 555 F.3d at 302.
17 Turning to the second factor, the district court
18 properly determined that lesser sanctions were unavailable
19 or would not have been effective. Further, Appellant’s
20 failure to submit to the deposition occurred approximately
21 seven months after the initial discovery order, and after
22 the discovery period had been extended to allow for the
4
1 deposition. See id. at 300-03 (finding that dismissal was
2 proper when the initial scheduling order was issued in
3 October 2006 and the plaintiff failed to appear for his
4 third scheduled deposition in April 2007). Finally, the
5 magistrate judge twice advised Appellant that failure to
6 submit to a deposition could result in the dismissal of his
7 complaint; the fourth factor weighs against Appellant. See
8 id. at 302-03.
9 Because the district court properly dismissed
10 Appellant’s complaint, his challenges to the magistrate
11 judge’s other discovery orders, the denial of his motion for
12 class-action status, and the denial of his motion to amend
13 the complaint,1 are moot. Finally, to the extent Appellant
14 argues that the magistrate judge was biased against him, we
15 find no basis to conclude that any bias warranting recusal
16 existed. See Liteky v. United States, 510 U.S. 540, 555-56
17 (1994) (regarding the standard for recusal).
1
Appellant’s motion to amend the (amended) complaint
came after discovery had concluded. Because “[o]ne of
the most important considerations in determining whether
amendment would be prejudicial is the degree to which it
would delay the final disposition of the action,” the
court did not abuse its discretion by denying the motion.
See Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d
Cir. 1998) (internal quotation marks omitted) (affirming
denial of motion to amend where “case was near resolution
and discovery had been completed”).
5
1 We have considered Appellant’s remaining arguments and
2 find them to be without merit.
3 For the foregoing reasons, the district court’s
4 February 8, 2012 Memorandum-Decision and Order, as amended
5 on February 14, 2012, is hereby AFFIRMED.
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9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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