The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
The parties consented to proceed before a magistrate judge on
April 26, 2004. The matter is presently before the court on
Defendants' motion to compel answers to Defendants'
interrogatories served December 29, 2004 (Doc. No. 33).
Plaintiff's civil rights complaint alleging retaliation based
on an alleged fabricated misbehavior report was commenced January
30, 2002. A scheduling order directing the close of discovery on March 10, 2005 (Doc. No. 29) was filed
on July 20, 2004. As noted, Defendants served interrogatories on
December 29, 2004. Upon Plaintiff's failure to respond after
attempting to resolve the matter through correspondence with
Plaintiff, Defendants moved to compel on February 10, 2005.
Defendants' motion is supported by the Affidavit of Stephen
Gawlik, Assistant Attorney General, dated February 10, 2005 (Doc.
No 35) ("Gawlik Affidavit").
In an affidavit filed March 3, 2005 (Doc. No. 37), Plaintiff
opposes the motion by Affidavit of Ronald Davidson, dated
February 24, 2005 ("Davidson Affidavit"). Specifically, Plaintiff
states that because of a transfer from Elmira to Auburn prison on
December 23, 2004 and from Auburn to Shawangunk, his current
facility, he was unaware of Defendants' interrogatories. Davidson
Affidavit ¶¶ 4-6. Plaintiff also accused Defendants of
responsibility for his transfers which he asserts were in
retaliation for commencing this lawsuit. Davidson Affidavit ¶ 7.
Defendants' reply affidavit was filed March 8, 2005 by Affidavit
of Stephen Gawlik dated March 8, 2005 (Doc. No. 38) ("Gawlik
Plaintiff contends as he was unable to timely respond to
Defendants' interrogatories as a result of his transfers, he
should now be granted additional time within which to do so.
Davison Affidavit ¶¶ 4-6. Plaintiff also argues that as the
transfers were intended to prevent Plaintiff's response to the
interrogatories, Defendants' motion is in bad faith and should be
Defendants argue that Plaintiff has not denied he received Mr.
Gawlik's January 27, 2005 letter requesting Plaintiff answer the interrogatories
and proposing an enlargement of time for that purpose. Gawlik
Reply Affidavit ¶ 6-7. Defendants also argue that as Plaintiff
ignored the letter and failed to provide the requested answers to
Defendants' interrogatories, Plaintiff has failed to timely file
such answers, and Defendants' motion should therefore be granted.
While the court does not disagree that Plaintiff could have
prepared and served the requested answers instead of opposing the
instant motion, given that Plaintiff has now stated his
willingness to answer the interrogatories, the court will hold
Defendants' motion is abeyance pending service of Plaintiff's
answers within 45 days of service of this Decision and Order.
Counsel for Defendants is directed to advise the court by
affidavit of Plaintiff's compliance with this direction. In the
event Plaintiff shall serve the answers as directed herein, the
motion will be DISMISSED as moot. If Plaintiff shall fail to
serve such answers, upon being advised by Defendants' affidavit
of Plaintiff's failure, the court will enter a further order
granting Defendants' motion.*fn2