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Dimpy Patel v. James Barbo

May 17, 2011

DIMPY PATEL, PLAINTIFF,
v.
JAMES BARBO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge

NOT FOR PUBLICATION

OPINION

This matter was opened to the Court by Plaintiff Dimpy Patel filing a Complaint and Amended Complaint alleging that various correctional officials had engaged in a pattern of retaliation and cruel and unusual punishment against him, in violation of his constitutional rights.

By Opinion and Order [13, 14] entered June 19, 2009, pursuant to the screening requirements of 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e, this Court dismissed certain claims and defendants, allowed other claims to proceed, and granted Plaintiff leave to file a second amended complaint.*fn1 The Complaint and Amended Complaint were served on the remaining defendants: Assistant New Jersey Department of Corrections Commissioner James Barbo, Assistant Commissioner Lydell B. Sherrer, New Jersey State Prison Administrator Michelle Ricci, Associate Administrator Donald Mee, Jr., and Investigator Valentine R. Dolce.

On August 24, 2009, Plaintiff filed his Second Amended Complaint.*fn2 Now pending before this Court is the Motion [46] of Defendants Barbo, Dolce, Mee, Ricci, and Sherrer to Dismiss the Second Amended Complaint for failure to cooperate with discovery. Plaintiff has responded, Defendants have replied, and this matter is now ready for decision.

I. BACKGROUND

As noted above, by Opinion and Order [13, 14] entered June 19, 2009, this Court dismissed certain claims and granted Plaintiff leave to file a second amended complaint within 30 days thereafter, or by July 19, 2009, if he could cure the deficiencies in the dismissed claims.

On August 3, 2009, this Court received a request from Plaintiff, dated July 13, 2009, for a 90-day extension of the deadline to file a second amended complaint. Plaintiff asserted that he needed the extension because he was seeking assistance from paralegals and because he needed time to obtain certain documents. The Court entered an Order [17] granting the request the same day. On August 24, 2009, the Court received Plaintiff's Second Amended Complaint [20]. Plaintiff was not represented by counsel on the Second Amended Complaint.

Also on August 24, 2009, this Court received Plaintiff's Motion [19] to appoint counsel, which the Court denied by Order [22] entered October 16, 2009. In that Order, the Court noted that Plaintiff's case did not appear to be factually or legally complex.

On March 3, 2010, this Court entered its Scheduling Order [24] requiring that all discovery be completed by May 31, 2010. That Order includes a notice that failure to comply may result in the imposition of sanctions, including dismissal of the complaint. On May 21, 2010, upon request by counsel for Defendants, the Court entered an Amended Scheduling Order [27] extending to July 30, 2010, the deadline for completion of discovery and providing that the Defendants may take the deposition of Plaintiff at a place designated by the Administrator of the prison where Plaintiff was incarcerated.

On September 14, 2010, in response to requests from both Plaintiff*fn3 and counsel for Defendants, this Court entered its Amended Scheduling Order [34] extending to October 29, 2010, the deadline for completion of discovery and again providing that the Defendants may take the deposition of Plaintiff at a place designated by the Administrator of the prison where Plaintiff was incarcerated. The Scheduling Order also provided that no further extensions of time would be granted, except upon formal motion and on a showing of good cause.

On October 4, 2010, this Court received Plaintiff's Letter [41] request, dated September 27, 2010, advising the Court that Defendants were attempting to take Plaintiff's deposition and requesting an order staying his deposition for 15 days, by which time he expected attorney Nikole A. Pezzullo to have entered her appearance in this matter. On October 4, 2010, this Court entered its Order [41] granting Plaintiff's request and providing that Plaintiff's deposition shall be taking during the week of October 25, 2010.

On October 27, 2010, Defendants attempted to serve Plaintiff with a notice of deposition through an employee at New Jersey State Prison. Plaintiff refused to take the notice. On October 29, 2010, Defendants' counsel arrived at New Jersey State Prison, with a court reporter, to take Plaintiff's deposition. Plaintiff refused to come out of his cell to give his deposition. After consultation with the Court, Defendant's counsel was escorted to Plaintiff's cell, where she advised Plaintiff that his case could be dismissed if he did not participate. Plaintiff indicated that he understood and said that he had counsel. However, no counsel had then, or has ever, entered an appearance on behalf of Plaintiff in this matter.

This Motion [46] to Dismiss for failure to comply with discovery was filed on November 8, 2010. On November 29, 2010, this Court received a letter [49] request from Plaintiff for a 30-day extension of time to give his deposition, asserting that he expected to be able to retain counsel by that time. This Court denied that request on December 1, 2010. On December 14, 2010, this Court received another letter [51] from Plaintiff in which Plaintiff stated that he could not afford to retain ...


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