         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.
 6
 7
 8
 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk
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