*

 The Honorable Richard W. Goldberg, of the United States

Court of International Trade, sitting by designation.

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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

New York, on the 3rd 4 day of January, two thousand thirteen.

5

6 PRESENT:

7 RICHARD C. WESLEY,

8 PETER W. HALL,

9 Circuit Judges,

10 RICHARD W. GOLDBERG,

Judge* 11 .

12 _____________________________________

13

14 KENNETH J. PHELAN, 

15

16 Plaintiff-Appellant, 

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18 -v.- 12-736

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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, 
2

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.

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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 Memorandum34 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
3

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
4

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
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 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

the complaint,1 13 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).
6

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.

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9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

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