1 14-579-cv Davis v. Citibank, N.A. UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 23 rd day of June, two thousand fifteen. PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, REENA RAGGI, Circuit Judges

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---------------------------- ---------------------------- -------------- EDWARD F. DAVIS, Plaintiff-Counter-Defendant-Appellant , v. No. 14-579-cv CITIBANK, N.A., Defendant-Counter-Claimant-Appellee

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: EDWARD F. DAVIS, pro se, New Windsor, New York.
APPEARING FOR APPELLEE: BARRY J. GLICKMAN, Zeichner Ellman & Krause LLP, New York, New York. Appeal from a judgment of the United St ates District Court for the Southern District of New York (Robert W. Sweet, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on February 26, 2014, is AFFIRMED. Edward Davis, proceeding pr o se, appeals from (1) the dismissal of his complaint against Citibank as a sanction for abuse of the discovery process, see Fed. R. Civ. P. 37; and (2) the award of summary judgment to Citibank on its counterclaim for Davis’s failure to pay an accrued credit card balance. On appeal, Davis argues that Citibank’s attorneys committed perjury in the district c ourt and that the dist rict judge both acted unfairly toward Davis and gave preferential treatment to Citibank. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, which we reference only as necessary to explain our decision to affirm.
1. Dismissal of Davis’s Complaint If a party fails to attend its own deposition, the distri ct court may, inter alia, dismiss the action and order the party to pay reasonable expenses. See Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(3). “We re view a district court’s impos ition of sanctions under Rule 37, including dismissal, for abuse of discre tion.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009). While pro se litigan ts are entitled to “special solicitude,” Triestman v. Fed. Bureau of Pr isons, 470 F.3d 471, 475 (2d Cir. 2006), they “are not immune to dismissal as a sanction fo r noncompliance with discovery orders,” as long as they are warned of that possib ility, Agiwal v. Mid Isla nd Mortgage Corp., 555 F.3d at 302. Nevertheless, because dismi ssal with prejudice is a “harsh remedy,” it should only be used when a court finds “w illfulness, bad faith, or any fault” by the non-compliant party. Id. Thus, in decidi ng whether a district court has abused its3 discretion in dismissing an action under Rule 37, we consider: “(1) the willfulness of the non-compliant party or the reason for noncomp liance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompl iance[;] and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” Id. (internal quotation marks and alterations omitted). Davis argues that the district court fa iled to take into account his “mental condition” during the discovery period, Appellant’s Br. 18, an d did not provi de him with sufficient guidance as a pro se litigant. Thes e arguments are unpersuasive. The district court gave Davis ample time to submit to a deposition and Davi s repeatedly refused to do so. Indeed, Davis willfully ignored the cour t’s orders over a period of nine months, and the district court warned Davis of the cons equence of his noncompliance to no avail. See Agiwal v. Mid Island Mortgage Corp., 55 5 F.3d at 302 (affirming dismissal where pro se litigant failed to comp ly with discovery order ove r six-month period knowing timely compliance expected). Davis never info rmed the district court of any mental illness during those nine months that might have pr evented him from sitting for a deposition, and he pr ovides no explanation re garding his claimed illness’s relevance to his repeated refusal to comply with court orders. To the contrary, the record reflects that Davis was a fully compet ent and active litigant during the relevant time period: he filed an amended complaint, moved for a protec tive order, sent several letters to the court regarding discovery issues and deadlines, ac tively sought discovery from Citibank, and filed several memoranda in o pposition to Citibank’s motions to dismiss. Accordingly,4 we conclude that the district court did not abuse its discretion when it dismissed Davis’s complaint as a sanction for abuse of the discovery process.
2. Grant of Summary Judgment to Citibank “This Court reviews summary judgment deci sions de novo, viewing the record in the light most favorable to the non-moving party.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015 ) (internal quotation marks omitted). Summary judgment is appropriate only where th e record shows “no genuine dispute as to any material fact” and the movant’s entitlement to judgment “as a matter of law.” Fed. R. Civ. P. 56(a). It is undisputed that Davis opened the cred it card account here at issue, incurred several thousand dollars of charges, and fa iled to make the minimum payments required by his cardholder agreement. Indeed, Davi s admitted as much in his answer to Citibank’s counterclaims. We therefore conc lude that summary judgment was correctly awarded to Citibank for the reasons stated by the district court.
3. Davis’s Arguments Regard ing Perjury and Bias No different conclusion as to either di smissal or summary judgment is warranted by Davis’s charges of attorney perjury or court bias. The former pertains to prior state court proceedings, events that had no bearin g on the court’s decision to dismiss Davis’s complaint or to grant summary judgment on Citibank’s counterclaim. As for alleged judicial bias, the record belies Davis’s claim th at the district court failed to consider his pro se status. Rather, it shows that the c ourt deferred dismissal, giving Davis several chances to submit to a deposition. Further, th e court declined to grant Citibank default5 judgment, specifically citing Davis’s pro se st atus, and instead insist ed that the claims proceed to summary judg ment. Davis does not provide an y support for his allegation of bias beyond the court’s rulings in favor of Citibank, and adverse rulings alone do not support such a claim. See Liteky v. Unite d States, 510 U.S. 540, 555 (1994); Gallop v. Cheney, 645 F.3d 519, 520 (2d Cir. 2011). We have considered Davis’s arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court