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Ward v. Leclaire

April 17, 2008


The opinion of the court was delivered by: Randolph F. Treece, U. S. Magistrate Judge


Pro se Plaintiff Kenneth Ward brought this civil rights action, pursuant to 42 U.S.C. § 1983, alleging Defendants violated his constitutional rights. Dkt. No. 1, Compl. According to his Amended Complaint, Ward complains that Defendants, individually and/or collectively, either exposed or allowed him to be exposed to high levels of environmental tobacco smoke (ETS), which had (and continue to have) detrimental effects on his health. Dkt. No. 64, Am. Compl., at ¶¶ 6-43. Ward also claims that several Defendants have denied him proper medical treatment for his deteriorating health as retaliation for bringing the present lawsuit. Id. Familiarity with the facts and procedure of this case is presumed.

Presently before the Court is Ward's Motion for Reconsideration (Dkt. No. 66) of this Court's January 15, 2008 Order, which addressed several of Plaintiff's non-dispositive Motions including, 1) Motion to Compel Discovery (Dkt. No. 49); 2) Motion to Vacate the Notice of Deposition (Dkt. No. 49); 3) Motion for a Court Conference; (Dkt. No. 49); and 4) Motion to Amend (Dkt. No. 51). All but the latter were denied. Dkt. No. 62. Ward asserts that reconsideration of the Court's January Order is warranted under Federal Rule of Civil Procedure 60(b) due to newly discovered evidence and/or changed circumstances, namely, his release from incarceration. Dkt. No. 66-2, Kenneth Ward Affirm., dated Feb. 1, 2008, at ¶ 6. He further seeks extensions of various scheduling deadlines as "just and equitable relief." Id. at ¶¶ 16-17. Defendants oppose Plaintiff's Motion for Reconsideration. Dkt. No. 67.


A. Applicable Law

Plaintiff brings his Motion pursuant to Federal Rule of Civil Procedure 60(b), however, that Rule is procedurally inappropriate as it only applies to final orders and judgments, not interlocutory orders.*fn1 Burke v. Warren County Sheriff's Dep't, 916 F. Supp. 181, 183 (N.D.N.Y. 1996); see also FED. R. CIV. P. 60(b) advisory committee's note (1946) ("The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule[.]"). Since the January Order dealt solely with interlocutory matters, Plaintiff cannot seek relief pursuant to Rule 60. Reconsideration is similarly not available to Plaintiff by way of motion since, pursuant to this District's Local Rules, the time to bring such motion expired before he filed the instant one. See N.D.N.Y.L.R. 7.1(g) (noting that a motion for reconsideration must be filed no later than ten calendar days "after the entry of the challenged judgment, order, or decree").*fn2 Nevertheless, a court retains the power to reconsider its own interlocutory orders. Burke v. Warren County Sheriff's Dep't, 916 F. Supp. at 183; see also Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962) (citing John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88 (1922)); FED. R. CIV. P. 60(b) advisory committee's note (1946) (noting that though exempt from Rule 60(b), interlocutory orders are "left subject to the complete power of the court rendering them to afford such relief from them as justice requires").

On April 4, 2008, this Court held an impromptu telephone conference with the parties to address a dispute that arose regarding the date and location of Plaintiff's deposition, an issue we deal with later in this opinion. Dkt. No. 70, Minute Entry. During that conference, Plaintiff made another overture regarding the exchange, or lack thereof, of discoverable information. Based upon that discussion, the Court agreed to take another look at Plaintiff's Motion to Compel. Accordingly, we are exercising our inherent powers under the circumstances and will consider Plaintiff's applications.

B. Plaintiff's Motion to Compel Discovery

When we initially reviewed Plaintiff's Motion to Compel Discovery, dated November 5, 2007, it was this Court's (and the Defendants') understanding that Plaintiff's chief complaint was that he had not received the initial mandatory disclosures set forth in Federal Rule of Civil Procedure 26(a)(1). Dkt. No. 49, Kenneth Ward Aff., dated Oct. 28, 2007, at ¶ 13 ("Plaintiff has been waiting for seven months for the Defendants to turn over the initial discovery material pursuant to Rule 26.1 a and b, which Plaintiff by Rule does not have to request[.]"); Dkt. No. 62, Order, dated Jan. 15, 2008, at p. 2 ("Plaintiff alleges that the Defendants have failed to make the initial disclosures as required by Rule 26(a)(1) of the Federal Rules of Civil Procedure.").

Rule 26(a)(1) generally requires most litigants, with some explicit exceptions, to exchange certain information without waiting for a formal demand. Specifically exempted from this mandatory disclosure are "action[s] brought without an attorney by a person in the custody of . . . a state[.]" FED. R. CIV. P. 26(a)(1)(B)(iv). Accordingly, in the January Order we determined that Plaintiff initiated this action pro se while he was in the custody of the New York State Department of Correctional Services (DOCS), and therefore, this matter was explicitly exempted from the mandatory disclosure dictates of Rule 26. Dkt. No. 62 at p. 3. Though we did not have the benefit of reviewing Defendants' attorney's explanation to Plaintiff regarding the reason she chose not to respond to Plaintiff's Rule 26(a)(1) discovery request, we nevertheless found that Plaintiff's demand for the 26(a)(1) discovery he had yet to be provided was not appropriate. Id.

By his current Motion, Plaintiff alleges that because he has been released from state custody, which occurred on our about January 28, 2008, the January 15th Order should be vacated as his change in circumstances now entitles him to the initial mandatory disclosures under Rule 26(a)(1). Dkt. No. 66. This Court does not agree with Plaintiff's assessment.

Patently, the exemption set forth in Rule 26(a)(1)(B)(iv) looks at Plaintiff's status at the time the action was "brought," in other words, when it was filed. We can easily glean this conclusion by looking at the actual text of the Rule and through an understanding of the functional parameters of the Rule. In addition to setting forth the specific discovery which must be exchanged "without awaiting a discovery request," Rule 26 sets the timing for such exchange "at or within 14 days after the parties' Rule 26(f) conference[.]" And, except for certain cases (such as this one), the 26(f) conference, wherein the attorneys meet and confer in an attempt to establish a joint discovery plan, is supposed to occur "as soon as practicable-and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." See FED. R. CIV. P. 26(a)(1)(C) & (f)(1). Then, once the court receives a report stemming from the parties' 26(f) conference, or meets with the parties itself, a scheduling order is due "as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared." FED. R. CIV. P. 16(b)(2).

The timing of all these deadlines/conferences are inextricably connected to the filing and service of the complaint and answer, which supports our assessment that Rule 26 provides for basic discovery at the very outset of the litigation. Plaintiff's status as a pro se incarcerated individual at the time he commenced this action resulted in exemption of this matter from many of these initial conference rules, such as the exemption from participating in a Rule 26(f) conference and a Rule 16 conference.*fn3 The fact that Plaintiff has been released from custody does not alter the many initial civil rule exemptions that have already attached. See Martin v. Brosseau, 2008 WL 746970, at *1 (D. Vt. Mar. 19, 2008).

Thus, to the extent Plaintiff criticized and continues to criticize the Defendants for their failure to automatically turn over the Rule 26 mandatory disclosure, we definitively state that this case is and continues to be exempt from such requirement and the Assistant Attorney General assigned to this case shall not be faulted for her failure to turn such information over without a proper demand. That being said, there has been no hindrance, at least none that this Court has been made aware of, preventing Plaintiff from making a proper discovery demand pursuant to Federal Rules of Civil Procedure 33 & 34.*fn4 Indeed, exemption notwithstanding, there is no reason either party could not issue an ...

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