Barclay v. Doe
Opinion of the Court
H. Patrick Barclay, a New York State inmate, sues defendants-appellees for disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and other provisions of federal law. Barclay now appeals from a judgment dismissing his complaint with prejudice for failure to comply with the district court’s discovery order requiring him to submit to a deposition. See Fed. R.Civ.P. 37(b)(2)(C). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
This court has observed that “dismissal with prejudice is a harsh remedy” for a discovery violation that should be used “only in extreme situations ..., and then only when a court finds willfulness, bad faith, or any fault on the part of the prospective deponent.” Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990). Where such findings are made, however, we review only for clear error, see Friends of Animals Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997), and we will not reverse a dismissal sanction absent abuse of discretion, see Valentine v. Museum of Modem Art, 29 F.3d 47, 49 (2d Cir. 1994). We identify no such abuse in this case.
In its December 2001 order granting defendants’ request to depose Barclay at his place of imprisonment, the district court specifically directed that the deposition take place on February 8, 2002. The two-page order, a copy of which was mailed to Barclay, included a bold-face paragraph below the heading “NONCOMPLIANCE” that stated: “TAKE NOTICE that non-compliance with the deposition may lead to sanctions pursuant to Federal Rules of Civil Procedure 37 including dismissal of the complaint.” Barclay v. Takos, No. 01-CV-6109CJS(F) (W.D.N.Y. Dec. 13, 2001) (order granting deposition). Nevertheless, on February 8, 2002, after defense counsel had traveled 260 miles for the deposition, Barclay refused to walk from his cell to attend the scheduled deposition. Specifically, he refused to go without his paperwork, despite urging from defense counsel that such paperwork was unnecessary. Although Barclay claims that his failure to attend the deposition was alternatively due to a “retaliatory conspiracy [by prison guards] preventing [him] from making the court ordered deposition,” Appellant’s Br. at 6, or because the prison guards would not provide a “reasonable accommodat[ion]” for his disability, id. at 5, the district court discounted these excuses and found that “there is no room to doubt that he deliberately failed to appear for his court-ordered deposition without justification,” Barclay v. Takos, No. 01-CV-6109CJS(F), slip op. at 6 (W.D.N.Y. Mar. 17, 2003).
“[W]hile pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988). Indeed, “[w]hen [pro se litigants] flout that obligation they, like all litigants, must suffer the consequences of their actions.” Id. Thus, we have expressly ruled that “[t]he severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.” Valentine v. Museum of Modem Art, 29 F.3d at 50. Such a warning having been given in this case, we cannot conclude that the district
The judgment of the United States District Court for the Western District of New York dated March 17, 2003, is hereby AFFIRMED.
Reference
- Full Case Name
- H. Patrick BARCLAY v. John DOE, Correction Officer The State of New York Medina Memorial Healthcare Sally B. Johnson, Superintendent of Orleans Correctional Facility Jane Tow, Nurse Jane Owe, Nurse John Hop, Correctional Officer Glenn Goord, Commissioner John Doe, Correctional Officer Johnson, Superintendent Capt. Chappivs, Hearing Officer, Jane Doe, Nurse, Orleans Correctional Facility Robert Takos, M.D. Freeman, Correctional Officer, of Orleans Correctional Facility Callisan, Correctional Officer, of Orleans Correctional Facility Scwartz, Correctional Officer, Sgt. at Orleans Correctional Facility John Roe, Correctional Officer, of Orleans Correctional Facility John Bow, Correctional Officer, of Orleans Correctional Facility John Tow, Correctional Officer, of Orleans Correctional Facility Jane Roe, Nurse, of Orleans Correctional Facility John Low, Correctional Officer, of Orleans Correctional Facility John Owe, Correctional Officer, of Orleans Correctional Facility John Moe, Correctional Officer, of Orleans Correctional Facility Paschke, Correctional Officer, of Orleans Correctional Facility Stockman, Correctional Officer, of Orleans Correctional Facility Donald Selsky, Director
- Cited By
- 2 cases
- Status
- Published