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Tota v. Bentley

August 12, 2008


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court are the motion of defendants*fn1 for a protective Order (Docket No. 119*fn2 ) and plaintiff's motion for an additional period of discovery (Docket No. 128*fn3 ). Responses to defendants' motion initially were due on or before July 7, 2008, and any reply was due on or before July 14, 2008 (Docket No. 120). At plaintiff's motion for additional time for briefing (Docket No. 124), responses were extended to be due by July 14, 2008, and any reply due by July 21, 2008 (Docket No. 125).

Responses to plaintiff's motion for additional period of discovery were due by July 21, 2008, and both motions were deemed submitted (without oral argument) on July 21, 2008 (Docket Nos. 129, 125).


Familiarity with the facts from prior Orders in this case (see, e.g., Docket Nos. 12, 37, 64, 92, 109) is presumed.

Plaintiff filed his Complaint on July 31, 2006, alleging that, on August 4, 2003, special weapons and tactics teams from the Jamestown Police Department and Chautauqua County Sheriff's Department used excessive force upon him (see Docket No. 1, Compl.). The original Complaint named as defendants the City of Jamestown and Chautauqua County, Jamestown police officer Franzen, Chautauqua County Sheriff's deputy David Bentley, John Doe Jamestown Police Department Special Weapons and Tactics officers, and John Doe Chautauqua County Sheriff's Department Special Weapons and Tactics ("SWAT") officers (id.). Plaintiff alleges that, during the entry of the SWAT teams, he was "permanently" injured with respect to his back, right eye, and right shoulder blade (id. attachment, Statement of Claim ¶¶ 1, 4-6, 13, 14). Chautauqua County, Bentley, and county SWAT John Doe officers answered the initial Complaint on September 27, 2006 (Docket No. 3*fn4 ).

After seeking and obtaining discovery to identify the John Doe defendants (Docket Nos. 9, 28), plaintiff moved for leave to amend the Complaint to name them (Docket No. 78), which was granted (Docket No. 92, Order of Nov. 19, 2007). Plaintiff was given fifteen days from entry of the Order granting leave to file and serve the Amended Complaint (id.). Plaintiff filed his Amended Complaint on December 3, 2007 (Docket No. 94). Plaintiff served the last of the new defendants by March 2008, when defense counsel for Bentley and Chautauqua County agreed to accept service (see Docket No. 110, minute entry, Mar. 4, 2008; text entry, Feb. 14, 2008, summons issued to other defendants).

In the Amended Complaint, plaintiff now asserts claims against Bentley and eight other named Sheriff's Department officers and apparently dropping claims against Chautauqua County, the City of Jamestown, and employees of the Jamestown Police Department (including Franzen and the unknown John Doe city officers). According to his Amended Complaint (Docket No. 94), plaintiff seeks compensatory and punitive damages for his physical injuries as the result of the alleged excessive use of force by county SWAT officer Bentley and the other named Chautauqua County Sheriff's Department officers (id. at 5, 1, 6-7). Bentley and the other sheriff's department employee defendants answered the Amended Complaint on March 17, 2008 (Docket No. 114).

The current Amended Scheduling Order (Docket No. 65, Order of Sept. 10, 2007; see Docket No. 101, Order of Jan. 16, 2008) had discovery conclude by January 22, 2008, dispositive motions were due by April 18, 2008, and pretrial statements by June 27, 2008. The Amended Scheduling Order indicated that no further extensions of that schedule would be granted (Docket No. 65, Order at 22; see Docket No. 119, Defs. Atty. Aff. ¶ 3, Ex. A). Having not moved for summary judgment, defendants filed their pretrial statement on June 26, 2008 (Docket No. 122), as did plaintiff (Docket No. 123). Final pretrial conference before Judge William Skretny was scheduled for July 16, 2008, and the trial of this action is scheduled to commence on September 16, 2008 (Docket No. 101), but, given these pending motions, Judge Skretny adjourned the final pretrial conference and will reset it in a separate Order (Docket No. 126).

Defense Motion for a Protective Order

Plaintiff has sought discovery from the new defendants (that is, the individual defendants save Bentley) after the close of discovery (Docket No. 121, discovery demands and notices dated May 27, 2008 at pages 24 of 64 to 64 of 64, eight interrogatories) without moving for extension of the discovery deadline. After seeking to have identification questions answered, plaintiff sought answers from these new defendants individually as to when, where and how they entered his house and whether officers from other agencies also entered. According to plaintiff, these are the same Interrogatories posed to defendant Bentley (Docket No. 128, Pl. Decl. ¶ 30)*fn5 .

Defendants move for a protective Order against being compelled to answer this latest discovery (Docket No. 119), arguing that plaintiff's discovery sought against them is untimely under the Scheduling Order. They complain that they received plaintiff's Interrogatories on May 28, 2008. Defense counsel then called plaintiff asking him to withdraw these demands as untimely, indicating that defendants would not answer them. (Docket No. 119, Defs. Atty. Aff. ¶¶ 4-6, Ex. B.)

Plaintiff's Motion to Grant a Period of Discovery

Plaintiff complains that the defendants named in the Amended Complaint answered after the discovery deadline expired hence preventing him from conducting disclosure and discovery from them (Docket No. 128, Pl. Dec. ¶¶ 14, 16-17, 13). He notes that the Court recognized in the last Amended Scheduling Order (Docket No. 65, Order of Sept. 10, 2007, at 21; see also Docket No. 64, Order of Sept. 10, 2007, at 21) that, once plaintiff amended the Complaint and the new defendants appeared, "further discovery may be required from these putative new defendants and by these parties," (Docket No. 128, Pl. Decl. ¶ 18, Ex. A, at 21). He argues that he is entitled to obtain discovery from the new defendants (Docket No. 128, Pl. Decl. ¶ 19). The discovery deadline prejudiced plaintiff ...

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