The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Pending before this Court are several filings: a second Motion for Sanctions in the Nature of a Request for Dismissal ("Defendants' Motion") (doc. 103), filed by Defendants*fn1 on June 15, 2007; a Motion for Protective Order (doc. 114), filed by pro se Plaintiff Benjamin Smith ("Plaintiff" or "Smith") on or about July 17, 2007; and a "Motion in Opposition to Dismissal" (doc. 117), also filed by Plaintiff on or about July 17, 2007. On July 26, 2007, United States Magistrate Judge Thomas M. Blewitt ("Magistrate Judge" or "Magistrate Judge Blewitt") filed a Report recommending that Defendants' Motion be granted and that Plaintiff's Motions be denied. (Rec. Doc. 120). For the reasons that follow, we will adopt the learned Magistrate Judge's Report to the extent it is consistent herewith, and we will dismiss the instant action.*fn2
FACTUAL BACKGROUND/PROCEDURAL HISTORY*fn3
On December 27, 2005, Plaintiff, a prisoner currently housed at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"), initiated this 42 U.S.C. § 1983 action by filing a Complaint (doc. 1) in the United States District Court for the Middle District of Pennsylvania. Therein, he alleged numerous violations of his Constitutional rights during his stay at the State Correctional Institution in Rockview, Pennsylvania ("SCI-Rockview"), and he named as Defendants fourteen (14) employees of the Pennsylvania Department of Corrections ("DOC").
However, following the referral of this case to Magistrate Judge Blewitt for preliminary review, and the subsequent proceedings, only the aforementioned five (5) Defendants currently remain parties to this action. The claims remaining against these Defendants are as follows: an Eighth Amendment deliberate indifference claim and conditions of confinement claim against Officer Shady and Chaplain Ajjeh, and a retaliation claim against Francis Dougherty, Earl Walker, and Franklin Tennis.
On February 27, 2007, the Magistrate Judge granted (doc. 92) Defendants' Motion to Take Plaintiff's Deposition (doc. 91). Thereafter, on April 10, 2007, the Magistrate Judge granted (doc. 96) Plaintiff's Motion for Extension of Time to Complete Discovery (doc. 95), and the discovery deadline was set for May 6, 2007. Thus, Plaintiff's deposition via video conference was scheduled for May 1, 2007, and he received notice thereof on April 27, 2007.*fn4
On May 1, 2007, upon defense counsel's attempt to commence the scheduled deposition, Plaintiff refused to be disposed. (See Rec. Doc. 97-2, Exh. C). Plaintiff's justifications for his refusal were two-fold: he was not afforded sufficient notice of the deposition and the three days that he had to prepare for the deposition were not beneficial because his institution, then FCI-Ray Brook, was in a security lockdown. Id.
The following day, May 2, 2007, Defendants filed their first Motion for Sanctions in the Nature of a Request for Dismissal. (Rec. Doc. 97). Nearly a month later, on or about May 25, 2007, Plaintiff filed a "Motion for Postponement of Deposition due to Inadequate and Delayed Notice and in Opposition to Defendant's [sic] Request for Judgment." (Rec. Doc. 99).
On June 1, 2007, the Magistrate Judge issued an Order disposing of the parties' pending Motions. (See Rec. Doc. 102). Specifically, the Magistrate Judge denied Plaintiff's "Motion for Postponement of Deposition due to Inadequate and Delayed Notice and in Opposition to Defendant's [sic] Request for Judgment" (doc. 99) and granted Defendants' first Motion for Sanctions in the Nature of Dismissal (doc. 97) to the extent that Plaintiff's April 25, 2007 discovery requests be deemed untimely and that Plaintiff not be afforded any more discovery extensions. The Magistrate Judge also extended the discovery deadline to July 31, 2007 for the sole purpose of allowing Defendants to reschedule the deposition of Plaintiff.
The Magistrate Judge's June 1, 2007 Order (doc. 102) was based on his conclusions that although Plaintiff failed to show good cause for his refusal to be deposed, dismissal of the action was too severe a sanction to impose at that time. However, the Magistrate Judge explicitly forewarned Plaintiff that "[f]ailure of Plaintiff to be deposed a second time will result in a recommendation that his case be dismissed with prejudice." (Rec. Doc. 102 at 4).
On June 11, 2007, Defendants attempted for a second time to depose Plaintiff via video conference. (See Rec. Doc. 103-2, Exh. A). Although Plaintiff now contends that defense counsel agreed to postpone this deposition (doc. 124 at 3; 127 at 6),*fn5 the Magistrate Judge concluded that the attempted deposition ended due to Plaintiff's refusal to be deposed, and in light of the record in front of us, we agree. Indeed, our review of the entire transcript from the attempted June 11, 2007 deposition reveals that despite Plaintiff's clever attempts to avoid defense counsel's repeated questions as to whether Plaintiff was refusing to be deposed, and despite Plaintiff's assertions that he was moving for a postponement of the deposition in order that he might file a Motion for Protective Order with the Court, Plaintiff was, in fact, refusing to be deposed under the circumstances that then existed, supervision of Plaintiff by two staff members of the prison.
Following the second unsuccessful attempt to depose Plaintiff, three pending Motions were filed.*fn6 First, on June 15, 2007, Defendants filed the second Motion for Sanctions in the Nature of a Request for Dismissal. (Rec. Doc. 103). Second, on or about July 17, 2007, Plaintiff filed a Motion for ...