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Madison v. Nesmith

March 3, 2008


The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge


The Clerk has sent to the Court a Motion to Compel Discovery filed by plaintiff Diallo R. Madison. Dkt. No. 94. Defendants have responded to the Motion. Dkt. No. 95.


This action originated in the Southern District of New York with the filing of the plaintiff's original Complaint. Dkt. No. 1. After being ordered to file an amended Complaint, the plaintiff submitted an amended pleading in the Southern District of New York. Dkt. No. 7. The plaintiff's claims against defendants Alves and Dyal, who reside in Chemung County, were transferred to the Western District of New York. Id.

After the action was transferred to the Western District, defendants Alves and Dyal filed Answers to the plaintiff's amended Complaint on March 16, 2005 and March 24, 2005, respectively. Dkt. Nos. 49, 50. Plaintiff then filed three motions to amend his amended Complaint, attempting to name F. Nesmith, Dr. Silverberg, and George S. Duncan as defendants. Dkt. Nos. 58, 61, 65. The plaintiff also submitted a proposed amended Complaint. Dkt. No. 66.

By the Order of United States District Judge Charles J. Siragusa, plaintiff's Motions to Amend were denied because venue was improper.*fn1 Dkt. No. 81. The plaintiff's "proposed Eighth Amendment claims against Nesmith, Silverberg, and Duncan were transferred to the United States District Court for the Northern District of New York." Dkt. No. 81 at 5.

On February 1, 2007 this Court ordered that the amended Complaint against defendants Nesmith, Silverberg, and Duncan be served. Dkt. No. 83. The amended Complaint was filed with the Court on February 1, 2007 (Dkt. No. 84) and an Answer was filed on March 30, 2007. Dkt. No. 90. Discovery has now closed in this case, and the Motion to Compel filing deadline has expired. Dkt. No. 91.

The allegations in the amended Complaint assert that plaintiff was evaluated by Dr. Silverberg and defendant Nesmith on January 20, 2003. Defendant Nesmith is alleged to be a licensed physician's assistant who is under the professional supervision of defendant Silverberg. Dkt. No. 84. On February 12, 2003 plaintiff was called to the medical office to execute a consent form for surgery that Dr. Silverberg had determined to be necessary. Id. Plaintiff states that he became concerned when he saw defendant Nesmith setting up for surgery, but no physician was present. Plaintiff alleges that he told defendant Nesmith that he wanted his surgery performed by a doctor. Id. Plaintiff alleges that he also made this wish known in the written consent form. Plaintiff alleges that physician's assistant Nesmith performed unsupervised anesthesia and then performed an unsupervised surgical procedure on plaintiff. Id. Plaintiff alleges that he has experienced ongoing difficulty and pain as a result of these unauthorized actions. Id.


Plaintiff's Motion to Compel was timely filed on November 23, 2007. Dkt. No. 94.

In his Motion, plaintiff seeks an Order from this Court directing defendants to respond to plaintiff's First Set of Interrogatories and Request for Production of Documents that were served on defendants' counsel on or about June 11, 2007.*fn2 Madison Aff. (Dkt. No. 94). Plaintiff asserts that the defendants responded to his document demands on October 17, 2007, and objected to all but one demand. Id. Plaintiff further asserts that on October 20, 2007 he wrote defendants' counsel in an attempt to obtain discovery from the defendants. Id. The October 20, 2007 letter was not provided to the Court.

In defendants' response, counsel submitted a July 19, 2007 letter from defendants' counsel to plaintiff advising plaintiff that the defendants would not respond to any of his Interrogatories because they exceed the Rule 33 limit. Dkt. No. 95, Exhibit B. Further, the letter advises that responses to the document demands would be responded to "within the next 30 days." Id. Defendants also provided the Court with plaintiff's August 16, 2007 letter. Dkt. No. 95, Exhibit C. The August 16, letter was a response to the July 19, 2007 letter, and noted defendants' objections to the number of interrogatories. The August letter further stated "Therefore, I am asking you to forward the first 25 requested to me ..." Id. It appears that defendants' counsel never responded to plaintiff's August 16, 2007 letter.*fn3 Defendants served a response to the document demands on October 17, 2007. Dkt. No. 95, Exhibit D.

In his Affirmation, defendants' counsel states his file does not contain the October 20, 2007 letter that plaintiff refers to in his Motion to Compel. Counsel also states "I would note that plaintiff's suggestion to simply answer the first 25 interrogatories still would not satisfy Rule 33 of the Federal Rules of Civil Procedure. Without considering possible substantive objections, approximately six of these interrogatories contain subparts which means the number of interrogatories including subparts would exceed the number limitation in the Rule." Hall Aff. (Dkt. NO. 95) ΒΆ 7. Dkt. No. 95, Hall Affirmation. Counsel states ...

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