United States District Court, D. Connecticut
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 ...