McDonald v. Head Criminal Court Supervisor Officer, 719

• Decision Date: 27 June 1988
• Docket Number: D,No. 719,719
• Citation: 850 F.2d 121
• Parties: Winston McDONALD, Plaintiff-Appellant, v. HEAD CRIMINAL COURT SUPERVISOR OFFICER, Ronald Miegel, John Doe 044, John Doe 000192, John Doe District Attorney, Defendants-Appellees. ocket 87-2459.
• Court: U.S. Court of Appeals — Second Circuit

Page 121

850 F.2d 121

11 Fed.R.Serv.3d 602

Winston McDONALD, Plaintiff-Appellant, v. HEAD CRIMINAL COURT SUPERVISOR OFFICER, Ronald Miegel, John

Doe 044, John Doe 000192, John Doe District

Attorney, Defendants-Appellees.

No. 719, Docket 87-2459.

United States Court of Appeals, Second Circuit.

Argued June 15, 1988.

Decided June 27, 1988.

Gail A. Wechsler, New York City (Levy, Gutman, Goldberg & Kaplan, Jeremiah S. Gutman, of counsel), for plaintiff-appellant.

Stephen M. Jacoby, New York City, Asst. Atty. Gen. of State of N.Y. (Robert Abrams, Atty. Gen. of State of N.Y., Howard L. Zwickel, Chief, Litigation Bureau, Jeffrey I. Slonim, Asst. Atty. Gen., of counsel), for defendants-appellees.

Peter L. Zimroth, Corp. Counsel of the City of New York, Larry A. Sonnenshein, Fred Kolikoff, Asst. Corp. Counsels of the City of New York, for the City of New York as amicus curiae.

Before FEINBERG, Chief Judge, PRATT, Circuit Judge and DORSEY, District Judge. ^*

FEINBERG, Chief Judge:

Winston McDonald appeals from a judgment of the United States District Court for the Southern District of New York, Robert W. Sweet, J., dismissing McDonald's complaint with prejudice pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure for failure to comply with a discovery order. Judge Sweet's decision granting defendants' motion to dismiss is reported at 117 F.R.D. 55 (S.D.N.Y.1987). For reasons given below, we affirm the judgment of the district court.

I. Background

McDonald commenced this action pursuant to 42 U.S.C. Secs. 1983, 1985 in March 1986 with the filing of a pro se complaint in the district court. He claims that his civil rights were violated in January 1984, when he and his wife arrived at the Bronx Criminal Court Building to appear at a proceeding in a then pending criminal case against him. On that occasion, two court officers allegedly pulled him off an escalator using excessive force, took him into a fingerprinting room (where a third officer was present), beat him and then arrested him without probable cause. McDonald also alleges that a Bronx County Assistant District Attorney, David Barnhard, conspired with the court officers to bring false charges against him, refused to produce evidence relating to the allegedly false charge that McDonald had a bottle of rum with him in the courthouse, lied to the court concerning the status of McDonald's fingerprints and directed the officers to assault and harass him. At the time the complaint was filed McDonald was, and apparently still is, incarcerated at the Fishkill Correctional Facility in New York.

In September 1986, the district court granted the state's motion to depose McDonald at Fishkill and in October McDonald wrote to the district court requesting assignment of counsel and a 90-day postponement of the deposition. His letter was returned, however, due to his failure to provide proof of service and in late October an assistant attorney general arrived at Fishkill to depose McDonald, but left when McDonald indicated he would not proceed without an attorney. McDonald then sent a follow-up letter to the court restating his request for counsel and a 90-day postponement of the deposition. In December 1986, McDonald again wrote to the district court asking for appointed counsel, requesting that the court send him a few addresses of attorneys "who volunteer their help to people like me," and indicating that he had "written to several places, asking for help from attornies [sic], and get no reply as yet." It is not entirely clear when Judge Sweet received this letter; the letter is stamped as received by the pro se clerk's office on December 23, 1986 but is not stamped as filed until February 20, 1987.

Simultaneously with the state's attempt to depose McDonald, defendant Barnhard moved to dismiss the complaint as to him on the basis of immunity. In December 1986, the district court granted the motion with respect to the claims that Barnhard withheld evidence, lied about the availability of the fingerprints and vindictively prosecuted McDonald. 650 F.Supp. 858 (S.D.N.Y.1986). The court directed McDonald to file supplemental affidavits with respect to the remaining claim that Barnhard had orchestrated McDonald's beating. In his January 1987 affidavit filed in response to Barnhard's motion, McDonald again referred to his need for counsel.

In February 1987, the district court specifically addressed McDonald's repeated requests for counsel. In an opinion, reported at 115 F.R.D. 36 (S.D.N.Y.1987), the judge denied the state's motion to dismiss McDonald's complaint for his failure to go forward with the October 1986 deposition. The court reasoned that McDonald's refusal to go forward with the deposition was not so egregious as to justify a dismissal in light of McDonald's request for a postponement and for appointment of counsel. Id. at 37. The court noted that "[t]he law of this circuit commands that pro se plaintiffs be accorded substantial latitude in procedural matters." Id. As to McDonald's request for counsel, the court stated that under Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986), an indigent must make a threshold showing that he has sought counsel and has been unable to obtain it before his request "will even be considered," and that, at least in this case, "[s]uch a showing should include a list of the lawyers and organizations contacted, so that the court can be sure that the reluctantly pro se party has done his part before the court discharges its duty." Id. The court ordered that in the meantime the deposition of McDonald should go forward with McDonald's rights preserved to object to the testimony at a later time. The court also directed the clerk to send McDonald a copy of "The Legal Aid Society, Directory of Civil Legal Services Office in New York City (May 1986)" (the "Legal Aid Directory") and advised McDonald that the "Federal Civil Litigation Handbook: A Guide for Pro Se Litigants in the United States District Court for the Southern District of New York (1986)" was available from the Southern District's Pro Se Office at 40 Centre Street, New York, New York 10007. Id.

Later in February, the district court granted summary judgment to Barnhard on the remaining claim against him and again ordered that McDonald be deposed. McDonald then sent two letters to the court protesting the court's order that he be deposed without counsel, but apparently never responded to the court's instruction that he submit a list of attorneys that he had contacted in an attempt to secure counsel before his request for counsel would be considered. There is nothing in the record to indicate that McDonald ever contacted any of the organizations in the Legal Aid Directory or ever contacted the Pro Se Office for assistance. In April 1987, in response to McDonald's letters, the district court issued yet another order stating clearly that McDonald's requests were denied, that the deposition would go forward as scheduled and that McDonald must answer all questions put to him. The court instructed McDonald not to make any further applications until after the deposition and warned him that his failure to comply with the court's order could lead to serious sanctions such as dismissal of his complaint.

The deposition of McDonald then took place on April 28, 1987. McDonald apparently cooperated during the morning session, answering questions mainly concerning the courthouse incident in January 1984. During the afternoon session, however, McDonald refused to answer various questions about injuries he sustained to his back prior to January 1984, the offense for which he was presently incarcerated, his criminal history, his alleged alcohol related and disorderly conduct offenses, his...