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Petty v. City of New Britain

United States District Court, D. Connecticut

January 7, 2019

TIMOTHY PETTY Plaintiff,
v.
CITY OF NEW BRITAIN et. al., Defendants

          MEMORANDUM OF DECISION RE: THE DEFENDANTS' MOTION TO DISMISS [ECF NO. 30]

          KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE.

         Pending before this Court is the Defendants' motion to dismiss as a sanction for the failure of plaintiff Timothy Petty (the “Plaintiff”) to comply with the Defendants' discovery requests as well as the orders of this Court. For the reasons articulated below, the Motion to Dismiss is GRANTED.

         Factual and Procedural Background

         The Plaintiff filed his complaint, pro se, on October 26, 2017. He seeks damages under 42 U.S.C. § 1983 for alleged violations of his constitutional rights by the Defendants. Specifically, he alleges that during his October 2, 2015 arrest for a narcotics offense, two detectives (defendants Halt and L. Smith) approached him, forced him to the ground, and forcibly removed narcotics from his rectum causing him both physical and psychological injury, to include post traumatic stress disorder (“PTSD”).

         Pursuant to 28 U.S.C. § 1915A, the Court issued an Initial Review Order on January 29, 2018, permitting four claims to proceed to discovery against three of the named defendants Detective Halt, Detective L. Smith, and the City of New Britain (collectively, the “Defendants”). The Court permitted a Fourth Amendment claim for illegal search and seizure, a Fourth Amendment claim for excessive force, a Fourteenth Amendment due process claim for denial of medical care, and other ancillary state law claims. The Initial Review Order further required that discovery be completed within six months, by July 28, 2018.

         On April 5, 2018, the Defendants served Interrogatories and Requests for Production on the Plaintiff. They sought, among other items, the Plaintiff's medical records, and/or signed medical authorization forms which would permit the Defendants to obtain the Plaintiff's medical records, as well as any documents supporting his allegations. The Plaintiff did not object to the discovery requests and provided partial responses on or about May 10, 2018. By letter dated May 14, 2018, the Defendants outlined, in great detail, the deficiencies in Plaintiff's discovery responses. In response to this correspondence, the Plaintiff supplemented his discovery responses on May 29, 2018. The Plaintiff did not provide complete medical records, however, and he altered the medical authorization forms in a manner which rendered them useless.[1] He also affirmatively refused to provide any records regarding his mental health. When counsel for the Defendants attempted to “meet and confer” with the Plaintiff regarding the deficiencies in his discovery responses, the Plaintiff's prison counselor advised counsel for the Defendants that the Plaintiff was refusing to come to the phone to speak with him.

         As a result, the Defendants sought a discovery conference with the Court (Meyer, J.). On June 12, 2018, following the conference, the Court issued the following:

ORDER RE DISCOVERY DISPUTE. In accordance with the Court's instructions today during the telephonic discovery conference, plaintiff shall respond fully and completely no later than June 26, 2018, to the following discovery requests: Interrogatories #4, #6-#9, #12- #14, as well as to Requests for Production #1-#6, #10-#12. Plaintiff's answers to interrogatories may cross-reference documents that plaintiff produces if these documents are fully responsive to the interrogatory request. No later than June 26, 2018, plaintiff shall either produce the requested documents or sign an authorization for their release by any third party such as a hospital (and with the understanding that defense counsel shall in turn furnish to plaintiff a copy of any and all documents obtained from any third party pursuant to plaintiff's authorization). As the Court explained to plaintiff, his complete medical records from any providers or sources are relevant to his claim for damages, and defendants shall maintain the confidentiality of such records to be used only for the purposes of this litigation. Plaintiff shall submit to a deposition no later than July 13, 2018, or on any later date if all the parties agree to such later date. Plaintiff stated that he is seeking to retain counsel, and the Court encourages plaintiff to continue these efforts. Plaintiff is advised, however, that the Court does not intend to postpone any of plaintiff's discovery obligations in view that plaintiff has already had many months to seek to retain counsel. If plaintiff's efforts to retain counsel are not successful, plaintiff may file a motion for the Court to appoint pro bono counsel. Plaintiff is advised, however, that the Court is unlikely to grant a motion to appoint pro bono counsel until after the close of discovery and unless the Court denies any summary judgment motion and the case is scheduled for trial. It is so ordered.

(See ECF No. 25 (emphasis added.)

         That same day, the Defendants' counsel sent a letter to the Plaintiff summarizing the Court's order and providing new copies of the medical authorization forms for the Plaintiff to sign. On June 22, 2018, the Plaintiff again supplemented his discovery responses. Again, the Plaintiff's interrogatory answers and document production were incomplete and largely unresponsive. With respect to Request for Production Nos. 1 through 6, which sought the Plaintiff's medical and psychiatric records, the Plaintiff indicated that he would forward the information requested. With respect to Request for Production Nos. 10 through 12, which broadly sought any documents relating to the incident, the Plaintiff responded, “I will send you this information.” As to the Interrogatories, the Plaintiff provided additional information but also indicated that he was awaiting receipt of information which he would forward. For example, the Plaintiff stated that his criminal defense attorney had taken a statement from witness Mia Phillips and that he would provide this statement when he received it.

         Despite these representations, the Plaintiff failed to provide the signed medical authorization forms, Ms. Phillips' written statement, or any other responsive materials. On July 2, 2018, counsel for the Defendants sent another letter to the Plaintiff, reiterating the Court's order and identifying the deficiencies in the Plaintiff's discovery responses to date. Counsel also enclosed yet another set of medical authorization forms for the Plaintiff to sign. The Defendants have received no further discovery from the Plaintiff since June 22, 2018.

         On July 11, 2018, the Defendants sought, and the Court granted, an extension of time to complete discovery until October 1, 2018. The Court further admonished the Parties that it was “unlikely to grant any further extension of time.” On August 10, 2018, the Defendants filed the instant motion to dismiss. Counsel for the Plaintiff appeared ten days later, on August 21, 2018. The Plaintiff has not filed a response to the motion to dismiss.

         The Defendants subsequently deposed Ms. Phillips on August 30, 2018 and the Defendant on September 29, 2018. The Plaintiff did not provide any of the previously promised discovery materials prior to or at either deposition. At the Plaintiff's deposition, the Defendants' counsel inquired about his medical and psychiatric history. The Plaintiff disclosed that he has received treatment at Hartford Hospital, Osborn Correctional Institute, and the Wheeler Clinic for his physical and psychiatric injuries related to the ...


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