The opinion of the court was delivered by: JOANNA SEYBERT
Plaintiff Andrew Curro, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 to recover damages from four New York State court reporters. Plaintiff alleges that the defendants deliberately altered the transcript of his criminal trial. This matter is now before the Court on four separate motions. First, plaintiff moves, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, for an order directing, inter alia, the prosecutor at his trial to disclose certain information relative to the testimony therein of the plaintiff's brother. Second, plaintiff moves, again pursuant to Fed. R. Civ. P. 37(a), for an order compelling the Brooklyn House of Detention for Men, a nonparty to this action, to produce its Inmate Law Library Log relative to the plaintiff for the period between February 26, 1985 and January 26, 1986. Third, defendants move for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Finally, plaintiff cross-moves to estop the defendants from relitigating issues of law that were resolved earlier in the chronology of this case, upon motions to dismiss, before another judge of this Court.
Plaintiff is currently an inmate at the Attica Correctional Facility, in Attica, New York, where he is serving a sentence upon his conviction for second degree murder in New York State Supreme Court, Kings County, following a trial in October and November of 1985. The present defendants--Watson, Finkelstein, Ascolese and Ryan--were assigned as official court reporters for that case. They delivered transcripts to plaintiff on a daily basis. However, both plaintiff and his trial counsel allege, in affidavits, that they did not receive, until January 1986, a transcript covering the final trial days of November 14 and 15, 1985.
Plaintiff alleges that the defendants deliberately altered significant portions of the trial transcript. Plaintiff's trial counsel supports these allegations in an affidavit and in his testimony at the transcript settlement hearing. Plaintiff and his trial counsel allege two principal areas of inaccuracy. Plaintiff first contends that changes were made to the charge conference at page 777, replacing the words "or by any other means" with "otherwise killed." See Pl. Rule 3(g) Statement P 1 (docket entry #120). Essentially, the alleged change in language was from "strangled or killed by any other means" to "strangled or otherwise killed." Second, plaintiff contends that the defendants deleted statements which should appear on page 837, where he claims his trial counsel objected to the prosecutor's statement during summation concerning the time of the murder. In this regard, the plaintiff asserts that the prosecutor improperly changed his theory of the case from that set forth in the indictment. Plaintiff further contends that the trial judge responded to this objection by stating, "to the best of my recollection there was testimony to that effect." The transcript reflects neither an objection nor a statement by the court. See id. P 2. This objection did not occur in isolation, however, as the record shows that, during the course of the prosecutor's summation, Curro's trial counsel lodged objections on at least 24 separate occasions. See Tr. at 822-59.
On January 9, 1987, a transcript settlement hearing was held in Kings County Supreme Court before the justice who presided at plaintiff's trial, the Hon. Edward Pincus. The court denied plaintiff's request to be present and to testify at the hearing. See Kobus Aff. dated Aug. 4, 1992 (docket entry #120). Hence, only plaintiff's trial attorney, Stephen Murphy, Esq., testified at the hearing. Murphy testified to the same discrepancies in the transcript that he swears to in his affidavit, including the aforementioned discrepancies at pages 777 and 837. See Transcript Settlement Hearing dated Jan. 9, 1987 (Docket entry #116, Turbin Aff., Ex. C) [hereinafter Transcript Settlement Hearing], at 4-11. Plaintiff had retained an expert to examine the stenographic notes, but his attorney did not call the expert at the hearing. See id. at 17.
At the settlement hearing, Justice Pincus corrected one error he found on page 776. He ruled that the record incorrectly reflected part of the charge conference in that, instead of his statement on "what had to be proved," the transcript contained the language "what did not have to be proved." Id. at 12. Regarding plaintiff's allegations, Justice Pincus determined that he had not said "by any other means," as the plaintiff claimed, but rather "otherwise killed," as the record reflects. Id. at 14. Although Justice Pincus did not remember specifically whether plaintiff's attorney objected at page 837, see id. at 21, he did not order any alterations other than the one on page 776. Accordingly, Justice Pincus, "certified those portions . . . reviewed to be correct as they appear, with the one exception the Court noted on page 776." Id. at 22. He certified this verbal ruling as the order of the court and concluded by stating that "[a] copy of today's proceedings, properly certified by the court reporter, will constitute a sufficient record for any further appeal or action by either side." Id. at 23.
Plaintiff commenced this action in July 1986, prior to the settlement hearing. The defendants first moved to dismiss on October 24, 1986, on the grounds that they were immune from suit under the eleventh amendment and the doctrine of judicial immunity, and that the plaintiff was collaterally estopped from litigating the issue of transcript alteration in federal court. Judge Sifton denied the defendants' motion in a Memorandum and Order dated June 11, 1987 [hereinafter Curro I]. The defendants subsequently filed their answer on August 10, 1987.
In responding to the defendants' interrogatories, plaintiff reasserted his claims that the transcripts were altered, again alleging that the defendants had replaced "by any other means" with "or otherwise killed," and had deleted the objection and court response on page 837. Asked how the alterations affected his trial, plaintiff responded, "I never stated that these alterations affected the outcome of my criminal trial."
Plaintiff did not raise any issue concerning the alleged transcript alterations, which are the subject of this action, on the direct appeal from his criminal conviction. In contrast, on appeal he challenged the use of the language "or otherwise killed" as it appears in the record of the jury charge, arguing that the use of these words denied him due process by improperly amending the indictment against him. The indictment originally charged plaintiff with causing the victim's death by "strangling her and cutting up her body." Plaintiff argued that, by changing this to "strangled or otherwise killed," the court precluded him from preparing a suitable defense.
Plaintiff's conviction was affirmed by the Appellate Division, Second Department, on May 29, 1990. See People v. Curro, 161 A.D.2d 784, 556 N.Y.S.2d 364 (App. Div. 2d Dep't 1990). As to Curro's contention that the court, in effect, impermissibly amended the indictment by charging the jurors that they could find that the victim had been "strangled or otherwise killed" even though the indictment specifically alleged that she had been strangled, the Appellate Division, addressing the merits of this claim, ruled that "under the circumstances of this case, where no body was ever recovered, the deviation from the allegations in the indictment did not prejudice the defendant in his ability to present a defense and did not impermissibly change the theory of the indictment." Id., 556 N.Y.S.2d at 367.
On August 10, 1990, the New York Court of Appeals denied Curro's application for leave to appeal. See People v. Curro, 76 N.Y.2d 855, 560 N.Y.S.2d 994, 561 N.E.2d 894 (1990).
Prior to the Appellate Division's affirmance of Curro's conviction, the present defendants filed a second motion to dismiss, on the grounds that the instant federal action should be dismissed or stayed on account of the then-pending criminal appeal. By Memorandum and Order dated July 24, 1990 [hereinafter Curro II], Judge Sifton denied this motion. In Curro II, the court first found that the plaintiff, by alleging significant changes to the trial record, had pled sufficient facts upon which section 1983 relief may be granted. See Curro II, at 8. Judge Sifton also rejected the present defendants' request to stay the instant action pending disposition of Curro's criminal appeal, finding an incongruity in issues, as the Appellate Division was only considering the jury charge as reflected in the transcript, and not the question before this Court of whether improper changes were made to the transcript. See id. at 11-12.
I. Plaintiff's Applications
A. Application to Prevent the Defendants from Relitigating Issues Previously Decided
In an effort to prevent the Court from considering the defendants' motion for summary judgment, plaintiff cross-moves to estop the defendants from relitigating issues that were decided earlier in the chronology of this case by Judge Sifton on the defendants' two prior motions to dismiss. This argument fails to take into account the fact that the prior applications before Judge Sifton were on motions to dismiss, which are designed solely to test the sufficiency of the complaint to plead a cause of action, assuming all facts to be true. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). In contrast, the defendants' present application is a motion for summary judgment, which is broader in scope than a motion to dismiss insofar as the former not only considers the defenses asserts by the defendants, but further requires the Court to scrutinize the full record of the case to ascertain whether a genuine dispute exists with respect to material facts. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). Accordingly, in view of the different procedural posture in which the defendants' current motion is presented, the plaintiff's application is denied.
B. Plaintiff's Discovery Motions
The plaintiff has two separate discovery motions pending in this action. In his first application, plaintiff moves, pursuant to Fed. R. Civ. P. 37(a), for an order (i) directing the production of materials relating to information with respect to the plaintiff that the government supplied, from 1981 through 1983, to Gerald Edward Meadows, a witness for the prosecution at plaintiff's criminal trial, and (ii) directing that plaintiff be furnished a transcript of an in camera proceeding at plaintiff's criminal trial, that previously had been furnished to plaintiff's criminal defense counsel. See Plaintiff's Letter to the Court, dated Jan. 23, 1992, at 1-2 (docket entry #105). Plaintiff further requests interrogatories of his brother, Gerard Curro, regarding his brother's arrest for sexual abuse, interrogatories of Assistant United States Attorney Diane F. Giacalone in regard to the prosecution of plaintiff's brother Gerard Curro and her involvement with the District Attorney's Office in plaintiff's criminal prosecution, and interrogatories of Assistant District Attorney Eric Seidel, the prosecutor at Curro's trial, pertaining to his knowledge and involvement with the United States Attorney's Office. Plaintiff contends that these materials are important because Gerard Curro testified, at the plaintiff's criminal trial, that the plaintiff admitted the murder to him. Specifically, plaintiff claims that this information is relevant to the instant case because the failure of the prosecutor to disclose Giglio material, and a knowing use of perjured testimony by the prosecutor, could serve to impeach the prosecutor's testimony at trial in the instant civil action.
In order for information to be discoverable, it must be "relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought need not be admissible at trial in its own right; rather, "information is relevant so long as it is reasonably calculated to lead to the discovery of admissible evidence." 4 James W. Moore et al., Moore's Federal Practice P 26.07[l], at 26-120 (2d ed. 1995). In addition, while evidence bearing on credibility may be elicited through civil discovery, see id. P 26.07, at 26-125, to be discoverable, such evidence must be reasonably calculated to "reveal information affecting the credence afforded to a witness' trial testimony." Davidson Pipe Co. v. Laventhol and Horwath, 120 F.R.D. 455, 462 (S.D.N.Y. 1988).
In the instant case, despite the plaintiff's contentions to the contrary, the Court regards the plaintiff's discovery requests not to bear sufficiently upon the prosecutor's character for truthfulness to justify imposing the burden of compliance with the subject subpoenas upon nonparties to this action. See Fed. R. Civ. P. 45(c)(3)(A)(iv). Indeed, it strikes the Court that the subject discovery requests properly belong in a habeas corpus proceeding, rather than in the instant § ...