*The Honorable Richard W. Goldberg, of the United States Court of International Trade, sitting by designation.

1 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.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 3rdday of January, two thousand thirteen. 4 5 PRESENT: 6 RICHARD C. WESLEY, 7 PETER W. HALL, 8 Circuit Judges , 9 RICHARD W. GOLDBERG, 10 Judge*******.** 11

_____________________________________ 12 13 KENNETH J. PHELAN, 14 15 Plaintiff-Appellant , 16 17 -v.- 12-736 18 19 JAMES CAMBELL, SHERIFF OF ALBANY COUNTY, 20 INDIVIDUALLY AND OFFICIALLY, DON HOWELL, 21 CORRECTION OFFICER, ALBANY COUNTY JAIL, 22 INDIVIDUALLY AND OFFICIALLY, ALBANY COUNTY, 23 ED REMILLARD, CORRECTION OFFICER, 24 ALBANY COUNTY JAIL, CHIEF MOONEY, 252 ALBANY COUNTY JAIL, INDIVIDUALLY AND OFFICIALLY, 1 CHRISTINE MORIARITY, AKA CHRISTINE, 2 LORI HORN, AKA LAURIE, JOHN DOE, 3 MEDICAL DOCTOR AT ALBANY COUNTY JAIL, 4 INDIVIDUALLY AND OFFICIALLY, 5 6 Defendants-Appellees

. 7

_____________________________________ 8 9 FOR PLAINTIFF-APPELLANT: Kenneth J. Phelan, pro se , Five 10 Points Correctional Facility, 11 Romulus, New York. 12 13 FOR DEFENDANTS-APPELLEES 14 James L. Campbell, Don 15 Howell, Ed Remillard, Chief 16 Mooney and Albany County: Robert P. Roche, Albany, NY. 17 18 FOR DEFENDANTS-APPELLEES 19 Christine Moriarity and 20 Lori Horn: Donald P. Ford, Thuillez, Ford, 21 Gold, Butler & Young, L.L.P., 22 Albany, NY. 23 24 25 Appeal from a judgment of the United States District 26 Court for the Northern District of New York (Mordue, J. ; 27 Treece, M.J. ). 28 29 **UPON DUE CONSIDERATION**, it is hereby **ORDERED**, **ADJUDGED**, 30

**AND DECREED** that the order is **AFFIRMED**

. 31 Appellant Kenneth J. Phelan, pro se , appeals from the 32 district court’s February 14, 2012 Amended Memorandum33 Decision and Order adopting the magistrate judge’s 34 recommendation that the court grant Appellees’ motion to 35 dismiss Appellant’s amended 42 U.S.C. § 1983 prisoners’ 36 rights complaint, pursuant to Federal Rule of Civil 373 Procedure 37, as a sanction for Appellant’s failure to 1 submit to a deposition. We assume the parties’ familiarity 2 with the underlying facts, the procedural history of the 3 case, and the issues on appeal. 4 We review the imposition of sanctions, including 5 dismissal, for abuse of discretion, and the factual findings 6 made in support of the district court’s decision for clear 7

error. See S. New England Tel. Co. v. Global NAPs Inc. , 624 8 F.3d 123, 143 (2d Cir. 2010). “[I]n evaluating a district 9 court’s exercise of discretion to dismiss an action under 10 Rule 37,” this Court has considered: “(1) the willfulness of 11 the non-compliant party or the reason for noncompliance; 12 (2) the efficacy of lesser sanctions; (3) the duration of 13 the period of noncompliance, and (4) whether the 14 non-compliant party had been warned of the consequences of 15 . . . noncompliance.” Agiwal v. Mid Island Mortg. Corp. , 16 555 F.3d 298, 302 (2d Cir. 2009) (alteration in original) 17 (internal quotation marks omitted); see also S. New England 18 Tel. Co. , 624 F.3d at 144 (noting that “these factors are 19 not exclusive, and they need not each be resolved against 20 the party challenging the district court’s sanctions for 21 [this Court] to conclude that those sanctions were within 224 the [district] court’s discretion”). Where a plaintiff 1

appears pro se , dismissal with prejudice may be imposed only 2 if “a warning has been given that noncompliance can result 3 in dismissal.” Valentine v. Museum of Modern Art , 29 F.3d 4 47, 50 (2d Cir. 1994) (per curiam). 5 Reviewing the record in light of these principles, we 6 conclude that the district court properly dismissed the 7 amended complaint. Appellant wilfully refused to comply 8 with the magistrate judge’s discovery orders, including the 9 court’s orders requiring Appellant to submit to a 10 deposition. Despite Appellant’s claims on appeal that he 11 did not refuse to appear, the record establishes that he 12 told counsel for some of the Appellees not to travel to the 13 prison for the deposition because he would refuse to be 14 deposed. The first factor thus weighs against Appellant. 15 See Agiwal , 555 F.3d at 302. 16 Turning to the second factor, the district court 17 properly determined that lesser sanctions were unavailable 18 or would not have been effective. Further, Appellant’s 19 failure to submit to the deposition occurred approximately 20 seven months after the initial discovery order, and after 21 the discovery period had been extended to allow for the 221 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 deposition. See id. at 300-03 (finding that dismissal was 1 proper when the initial scheduling order was issued in 2 October 2006 and the plaintiff failed to appear for his 3 third scheduled deposition in April 2007). Finally, the 4 magistrate judge twice advised Appellant that failure to 5 submit to a deposition could result in the dismissal of his 6 complaint; the fourth factor weighs against Appellant. See 7 id.at 302-03. 8 Because the district court properly dismissed 9 Appellant’s complaint, his challenges to the magistrate 10 judge’s other discovery orders, the denial of his motion for 11 class-action status, and the denial of his motion to amend 12 the complaint, 1are moot. Finally, to the extent Appellant 13 argues that the magistrate judge was biased against him, we 14 find no basis to conclude that any bias warranting recusal 15 existed. See Liteky v. United States , 510 U.S. 540, 555-56 16 (1994) (regarding the standard for recusal). 176 We have considered Appellant’s remaining arguments and 1 find them to be without merit. 2 For the foregoing reasons, the district court’s 3 February 8, 2012 Memorandum-Decision and Order, as amended 4 on February 14, 2012, is hereby **AFFIRMED**

. 5 6 7 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13 14 15 16 17 18