22-638-pr

Houghtaling v. Fischer

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 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 for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 5th 3 day of January, two thousand twenty-three.

4

5 PRESENT:

6 ROBERT D. SACK,

7 ALISON J. NATHAN,

8 SARAH A. L. MERRIAM,

9 Circuit Judges.

10 _____________________________________

11

12 Jeffrey Blane Houghtaling,

13

14 Plaintiff-Appellant,

15

16 v. 22-638

17

18 Deborah Eaton, Senior C.C. Gowanda,

19

20 Defendant-Appellee,

21

22 Brian Fischer, Comm. of DOCS, Debra Eaton, 

23 Dale Artus,

24

25 Defendants.

26 _____________________________________

27

28

29

30 FOR PLAINTIFF-APPELLANT: Jeffrey Blane Houghtaling, pro se,

31 Rochester, NY.

32
1 FOR DEFENDANT-APPELLEE: Barbara D. Underwood, Solicitor 

2 General, Jeffrey W. Lang, Deputy 

3 Solicitor General, Sean P. Mix, 

4 Assistant Solicitor General, of counsel, 

5 for Letitia James, Attorney General for 

6 the State of New York, Albany, NY.

7

8 Appeal from a judgment of the United States District Court for the Western District of New 

9 York (Wolford, J., Pedersen, M.J.).

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

11 DECREED that the judgment of the district court is AFFIRMED. 

12 Appellant Jeffrey Houghtaling, proceeding pro se, appeals the dismissal of his 42 U.S.C. 

13 § 1983 complaint under Rules 37(b)(2) and 41(b) of the Federal Rules of Civil Procedure for 

14 failure to comply with discovery orders after Houghtaling twice ignored orders directing him to 

15 respond to the defendant’s interrogatories and discovery demands. The court also awarded 

16 attorney’s fees to the defendant-appellee as a related discovery sanction. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.1 17

18 We review dismissals under Rules 37 and 41(b) for abuse of discretion, remaining mindful 

19 that dismissal is a “harsh remedy to be used only in extreme situations.” Agiwal v. Mid Island 

20 Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citation omitted) (Rule 37); see Baptiste v. 

21 Sommers, 768 F.3d 212, 216–17 (2d Cir. 2014) (Rule 41(b)). We also review the award of 

22 attorney’s fees for abuse of discretion. McDaniel v. County of Schenectady, 595 F.3d 411, 416 

23 (2d Cir. 2010). 

24

1 Houghtaling also moves to hold appellee’s counsel in contempt of court for purported 

misconduct in connection a notice of appearance. Finding no such misconduct, we DENY 

Houghtaling’s motion. 
3

1 When deciding a motion to dismiss pursuant to Rule 37 for failure to comply with 

2 discovery orders, courts consider “(1) the willfulness of the non-compliant party or the reason for 

3 noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of 

4 noncompliance, and (4) whether the non-compliant party had been warned of the consequences of 

5 noncompliance.” Agiwal, 555 F.3d at 302 (citation and alteration omitted). Likewise, when 

6 considering a dismissal under Rule 41(b) for failure to comply with court orders, a district court

7 “must weigh five factors: (1) the duration of the plaintiff's failure to comply with the court order, 

8 (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether 

9 the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of 

10 the court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to 

11 be heard, and (5) whether the judge has adequately considered a sanction less drastic than 

12 dismissal.” Baptiste, 768 F.3d at 216 (citation and internal quotation marks omitted). “No single 

13 factor is generally dispositive.” Id. In addition, Rule 37(b)(2)(C) provides that, when the district 

14 court imposes sanctions (such as dismissal) pursuant to Rule 37(b)(2)(A) for failure to comply 

15 with a discovery order, “the court must order the disobedient party . . . to pay the reasonable 

16 expenses, including attorney’s fees, caused by the failure, unless the failure was substantially 

justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).2 17 

18 Having set out the relevant factors, we have no occasion to assess them because 

19 Houghtaling fails to meaningfully address the district court’s adverse rulings in his opening brief. 

2 The district court stated that the fee award was granted pursuant to Rule 37(a)(5)—which applies 

when the court grants a Rule 37(a) motion to compel discovery—but every exception to an award 

of fees under the applicable Rule 37(b)(2)(A) is also available under Rule 37(a)(5). 
4

1 While we “liberally construe” the filings of pro se litigants “to raise the strongest arguments they 

2 suggest,” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (citation 

3 omitted), pro se litigants must still comply with Federal Rule of Appellate Procedure 28(a), which 

4 “requires appellants in their briefs to provide the court with a clear statement of the issues on 

5 appeal,” Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). We “normally will not[] decide 

6 issues that a party fails to raise in his or her appellate brief.” Id.; see also LoSacco v. City of 

7 Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an 

8 appellant proceeding pro se . . . .”). 

Houghtaling does not address the district court’s evaluation of the factors outlined above.3 9

10 He has therefore forfeited those issues on appeal. Even if it were otherwise, however, we perceive 

11 no abuse of discretion in the district court’s dismissal or award of fees, and we would therefore 

12 affirm for substantially the reasons stated in the district court’s January 18, 2022 decision. See

13 Houghtaling v. Eaton, No. 6:14-cv-6416 (EAW), 2022 WL 167538, at *3–10 (W.D.N.Y. Jan. 18, 

14 2022).

15 In lieu of raising meaningful challenges to the district court’s decision, Houghtaling 

16 accuses defense counsel of misconduct and the magistrate judge of bias. These arguments 

17 provide no grounds for remand. To the extent that Houghtaling intends to argue that he had no 

18 obligation to comply with the magistrate judge’s orders because they were improper, he is 

3 Houghtaling’s contention that the district court overlooked arguments raised before the 

magistrate judge—and erroneously treated them as having been raised for the first time in his 

objections to the magistrate judge’s report and recommendation—is misplaced. Even if there 

were such an error, it would be harmless because the district court conducted a de novo review of 

the entire report and recommendation and addressed the objections.
5

1 incorrect. “If a person to whom a court directs an order believes that order is incorrect the remedy 

2 is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.” Maness

3 v. Meyers, 419 U.S. 449, 458 (1975); see also McDonald v. Head Crim. Ct. Supervisor Officer, 

4 850 F.2d 121, 124 (2d Cir. 1988) (“An order issued by a court must be obeyed, even if it is later 

5 shown to be erroneous.”). Houghtaling’s arguments regarding defense counsel’s purported 

6 misconduct are, likewise, largely irrelevant to whether he could willfully ignore the magistrate 

7 judge’s repeated orders without consequence. Although Houghtaling argues that defense counsel 

8 caused some discovery delays by cancelling depositions, the period at issue here—from the first 

9 order directing Houghtaling to respond to the discovery demands through the orders 

10 recommending and ordering dismissal as a sanction for his nonresponse—is independent of any 

11 delay attributable to the defendant. Houghtaling also claims that the magistrate judge was biased 

12 against him, but that claim is premised entirely on adverse rulings, “and adverse rulings, without 

13 more, will rarely suffice to provide a reasonable basis for questioning a judge’s impartiality.” 

14 Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009).

15 We have considered Houghtaling’s arguments and find them to be without merit. 

16 Accordingly, we AFFIRM the judgment of the district court and DENY Houghtaling’s motion to 

17 hold counsel in contempt of court. 

18

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk of Court