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McCenzie v. mcClatchie

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


January 10, 2008

LEONARD MCCENZIE, PLAINTIFF,
v.
SERGEANT M. MCCLATCHIE, CORRECTIONS OFFICER ANDREW DUPRAT, CORRECTIONS OFFICER NEIL GUERIN, CORRECTIONS OFFICER B. BOGETT, CORRECTIONS OFFICER R. STEVENS, AND CORRECTIONS OFFICER B. DRAYSE, DEFENDANTS.

The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

In this civil rights action alleging Eighth Amendment violations, Plaintiff moves, by papers filed October 3, 2007 to compel discovery (Doc. No. 53) ("Plaintiff's motion"). On November 13, 2007, Defendants filed the Declaration of Ann C. Williams, Assistant New York State Attorney General, in opposition (Doc. No. 58) ("Williams Declaration"). Plaintiff's reply papers were filed November 21, 2007 (Doc. No. 59).

Specifically, Plaintiff maintains that Defendants failed to comply with the prior order of the court, entered October 11, 2006, ("the October 11, 2006 order"), which directed Defendants to provide Plaintiff with copies of photographs, relating to an investigation of Defendants' alleged assault on Plaintiff, that Plaintiff had demanded during discovery and which, inter alia, were the subject of Plaintiff's prior motion to compel (Doc. No. 40). In Plaintiff's reply, Plaintiff reiterates Defendants' failure to comply with the October 11, 2006 order and repeats Plaintiff's assertion of bias against the undersigned and that Plaintiff's motion for recusal (Doc. No. 55) should be granted.*fn1

Although in the Williams Declaration, Defendants proffer reasons why Plaintiff's motion for recusal should be denied, the declaration does not respond directly to Plaintiff's assertion that Defendants failed to either provide copies of the photographs or an affidavit explaining why such photos do not exist as directed by the October 11, 2006 order. Moreover, nothing in Plaintiff's reply indicates Defendants have, since Plaintiff's motion was filed, acted to provide the information as directed by the court over one year ago. Accordingly, the court finds Plaintiff's contention, that Defendants are in violation of the October 11, 2006 order, is undisputed. Plaintiff's motion will therefore be GRANTED, and Defendants shall show cause, in writing, within 10 days why sanctions available under Fed.R.Civ.P. 37(b)(1) should not be imposed. Plaintiff's reply shall be filed within 10 days after service of Defendants' response. Oral argument on this order to show cause shall be at the court's discretion.

CONCLUSION

Based on the foregoing, Plaintiff's motion (Doc. No. 53) is GRANTED; Defendants' shall show cause why sanctions should not be imposed as set forth above.

SO ORDERED.


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