United States District Court, D. Connecticut
JOHN L. CONLEY, Plaintiff,
JOSE RIVERA, et al., Defendants.
RULING ON DEFENDANTS' MOTION TO DISMISS
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Rivera (“Defendant”) has moved the Court to
dismiss this action under Federal Rule of Civil Procedure
37(b) due to John L. Conley's (“Plaintiff”)
refusal to answer certain deposition questions. ECF No. 27.
In the alternative, Mr. Rivera asks the Court to order Mr.
Conley to pay costs associated with deposing Mr. Conley and
to order Mr. Conley to answer all questions upon being
re-deposed. Def.'s Br. at 1-2, ECF. No. 27-1. For the
reasons that follow, the motion to dismiss is
Conley, who is incarcerated and proceeding pro se,
has filed this action alleging that Mr. Rivera, the only
remaining defendant, failed to protect him from assault by
another inmate in violation of the Eighth Amendment to the
U.S. Constitution. ECF No. 1, 11. In July 2017, Mr. Rivera
moved the Court for leave to depose Mr. Conley “to
discover the nature and basis of [his] claims.” ECF No.
22. The Court granted leave. ECF No. 23. Mr. Conley was
deposed on August 9, 2017. Def.'s Bf. at 2. Mr. Conley
allegedly refused to answer questions relating to (1) the
reason for Mr. Conley's present incarceration; (2)
whether Mr. Conley acted in concert with his allege assailant
to assault a third inmate; (3) whether Mr. Conley's
alleged assailant manipulated his handcuffs in order to
attack the third inmate; and (4) whether it was reasonable
for anyone to believe that there was tension between Mr.
Conley and his alleged assailant if he and his assailant had
acted in concert to attack another inmate. Id. at 2.
Mr. Conley opposes the motion, contending that the questions
which form the basis of Mr. Rivera's motion implicate his
Fifth Amendment right against self-incrimination. Pl.'s
Br. at 4, ECF. No. 28.
STANDARD OF REVIEW
37(b) provides a non-exclusive list of sanctions that the
Court may impose on a party where that party “fails to
obey an order to provide or permit discovery.”
Fed.R.Civ.P. 37(b)(2)(A). In particular, the Rule provides
for dismissal of an action in whole or in part. Fed.R.Civ.P.
well-settled in the Second Circuit, however, that
“[d]ismissal under Fed. R. Civ. 37 is a drastic penalty
which should be imposed only in extreme circumstances.”
Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir.
1986) (internal quotation marks and citation omitted). As a
discovery sanction, dismissal should be utilized only where
failure to comply with an order “is due to
‘willfulness, bad faith, or any fault' of the
deponent.” Id. (quoting Societe
Internationale Pour Participations Industrielles et
Comerciales v. Rogers, 357 U.S. 197, 212 (1958)).
Rivera argues that Mr. Conley, in refusing to answer certain
questions, willfully refused to obey an order to provide
discovery, which, Mr. Rivera maintains, merits the Court
dismissing the case in its entirety. Def.'s Br. at 3. The
Court denies the motion.
Second Circuit has held that, absent a court order, dismissal
under Fed.R.Civ.P. 37(b) is improper. See
Salahuddin, 782 F.2d at 1131 (“The plain language
of Rule 37(b) requires that a court order be in effect before
sanctions are imposed and we have clearly held that
‘dismissal under this subdivision [is] improper in the
absence of an order.'” (citation omitted)).
Imposition of these sanctions under Fed.R.Civ.P. 37(b),
therefore, requires an existing court order.
Court has not ordered Mr. Conley to answer specific questions
while being deposed. The only order on the docket is the
order granting the Mr. Rivera leave to depose Mr. Conley. ECF
No. 23. Such an order is insufficient to justify dismissal of
the complaint. See Maldonado v. Susanna Mattingly Parole
Officer, 2016 WL 3079778, at *2 (W.D.N.Y. June 1, 2016)
(“[A] Case Management Order permitting the deposition
of a person confined to prison is insufficient to justify
dismissal of a complaint pursuant to Rule 37(b)(2)”).
The proper procedure would be for the defendants to seek an
order from the Court directing Mr. Conley to answer the
questions already posed. Id. (citing
Salahuddin, 782 F.2d at 1131); see also Roque v.
Lantz, No. 3:06-cv-1915 (JBA) (D. Conn. July 1, 2009)
(ruling and Order filed May 14, 2008 denying motion to
dismiss for failure to respond to discovery requests or
attend deposition because plaintiff had not previously been
warned that failure to participate in discovery would result
in dismissal of case). Accordingly, Mr. Rivera's motion
is denied as premature.
Rivera asks, in the alternative, for the Court to order Mr.
Conley to pay costs associated with his depositions that Mr.
Rivera would otherwise have to pay and the Court to order Mr.
Conley to answer all questions upon being further deposed.
Def.'s Br. at 3. Mr. Conley contends that the information
Mr. Rivera was seeking implicates Mr. Conley's rights
against self-incrimination under the Fifth Amendment to the
U.S. Constitution. Pl.'s Br. at 4. Although Mr. Conley
did not unambiguously invoke his Fifth Amendment right during
the deposition, he could have done so. See Universitas
Education, LLC v. Nova Group, Inc., 2016 WL 1179773, at
*4 (2d Cir. Mar. 23, 2016) (acknowledging that deponent can
assert Fifth Amendment privilege with respect to specific
deposition questions). Moreover, it appears that Mr. Conley
could have done so in good faith, and Mr. Rivera has not
shown otherwise. Cf. Sec. & Exch. Comm'n v.
Research Automation Corp., 521 F.2d 585, 588 (2d Cir.
1975) (“[T]he plaintiff must demonstrate that the
defendant's failure to comply is due to willfulness, bad
faith or fault and not to an inability to comply.”).
The Court thus declines to order the relief Mr. Rivera seeks
in the alternative.
defendants' motion to dismiss is DENIED,
as is the relief Mr. ...