Febus v. Somody et al
| Fortunato K. Febus |
| Robert Somody, Joseph Rainone, Unknown Police Sergeant, Stamford Police Dept and City of Stamford |
| 3:2018cv00640 |
| April 16, 2018 |
| US District Court for the District of Connecticut |
| New Haven Office |
| XX US, Outside State |
| Jeffrey A. Meyer |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
38
ORDER GRANTING MOTION FOR SANCTIONS AND DISMISSING CASE WITH PREJUDICE. Plaintiff Febus has repeatedly failed to participate in the discovery process in this case in the form the Federal Rules of Civil Procedure require. After the Court denied plaint iffs' initial motion for dismissal for nonparticipation in discovery, Doc. #27, at an in-person case conference the Court repeatedly warned plaintiff of the consequences of not participating in discovery. Plaintiff nonetheless continued not to e ngage in discovery. "If a party... fails to obey an order to provide or permit discovery..., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following.... An order... dismi ssing the action or proceeding." Fed. R. Civ. P. 37(b)(2)(C). "[D]ismissal with prejudice is a harsh remedy to be used only in extreme situations... and then only when a court finds willfulness, bad faith, or any fault on the part of the pr ospective deponent." Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990). I find plaintiff at fault, having not participated in basic discovery procedures "in the face of repeated and explicit warnings from the co urt that the refusal to comply with court orders... would result in the dismissal of his action." Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994). Given the impossibility of the defendants preparing their case without ade quate discovery and the repeated failure of the plaintiff to follow court orders, at this juncture I conclude that dismissal with prejudice is warranted. In light of Febus's limited financial resources, however, I find that charging plaintiff wi th the cost of defendant's motion unwarranted and accordingly will deny that branch of the defendants' motion. Accordingly, I will hereby grant defendants' motion in part, insofar as I will DISMISS this case with prejudice. The Clerk of the Court shall close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 6/5/2020. (Webley, A)
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Filing
14
INITIAL REVIEW ORDER. For the reasons stated in the attached order, plaintiff's excessive force claims may proceed against defendants Somody and Rainone in their individual capacities. Plaintiff's deliberate indifference claim may proceed a gainst Sergeant Doe in his individual capacity. All remaining claims are DISMISSED pursuant to 28 U.S.C. §§ 1915A(b)(1) and (b)(2) but without prejudice to plaintiff's option to re-plead these claims by way of an amended complaint to b e filed on or before May 22, 2019. The Court enters the following orders:(1) The Clerk shall verify the current work addresses of defendants Officer Robert Somody and Officer Joseph Rainone with the Stamford Office of Legal Affairs and mail a waiver of service of process request packet, containing the Complaint, Amended Complaint, and this Order, to each defendant at the address provided within twenty-one (21) days of this Order, and report to the Court on the status of those waiver requests on the thirty-fifth day after mailing. If any defendant fails to return the waiver request, the Clerk shall arrange for in-person service by the U.S. Marshals Service on the defendant in his or her individual capacity and the d efendant shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).(2) Plaintiff's individual-capacity claim against "Sergeant Doe" may proceed but plaintiff is advised that he must take steps to identify the real name of "Sergeant Doe" and then file an amended complaint that names him as a defendant. Failure to promptly do so may result in preclusion of any law suit against "Sergeant Doe" if the statute of l imitations (which is 3 years for civil rights claims under 42 U.S.C. § 1983) elapses prior to filing an amended complaint.(3) The Clerk shall send plaintiff a copy of this Order.(4) The Clerk shall send a courtesy copy of t he Complaint, Amended Complaint, and this Order to the Connecticut Attorney General and the Department of Correction Office of Legal Affairs.(5) The defendants shall file their response to the complaint, either an answer or motion to dismiss, wit hin sixty (60) days from the date the waiver forms are sent. If they choose to file an answer, they shall admit or deny the allegations and respond to the cognizable claim recited above. They also may include all additional defenses permitted by the Federal Rules.(6) Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be completed within seven months (210 days) from the date of this order. Discovery requests need not be filed with the Court.(7) All motions for summary judgment shall be filed within eight months (240 days) from the date of this order.(8) Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a dispositive motion within twenty-one (21) days of the date th e motion was filed. If no response is filed, or the response is not timely, the dispositive motion can be granted absent objection.(9) If plaintiff changes his address at any time during the litigation of this case, Local Court Rule 83.1(c)2 prov ides that plaintiff MUST notify the Court. Failure to do so can result in the dismissal of the case. Plaintiff must give notice of a new address even if he is incarcerated. Plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not en ough to just put the new address on a letter without indicating that it is a new address. If plaintiff has more than one pending case, he should indicate all case numbers in the notification of change of address. Plaintiff should also notify the defe ndant or the attorney for the defendant of his new address. (10) Plaintiff shall utilize the Prisoner Efiling Program when filing documents with the Court. Plaintiff is advised that the Program may be used only to file documents with the Court. A s local court rules provide that discovery requests are not filed with the Court, discovery requests must be served on defendants' counsel by regular mail.SO ORDERED this 22d day of April 2019 at New Haven, Connecticut.Signed by Judge Jeffrey A. Meyer on 4/22/2019. (Gondwe, N.)
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