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Boomer v. Deperio

August 28, 2009

SOLOMON BOOMER, PLAINTIFF,
v.
JOSE DEPERIO, ET AL., DEFENDANTS.



DECISION & ORDER

Plaintiff Solomon Boomer ("Boomer"), acting pro se, has filed a complaint pursuant to 42 U.S.C § 1983 alleging that defendants violated his constitutional rights by acting with deliberate indifference to his medical condition, diabetes, while he was incarcerated at Attica Correctional Facility. (Docket # 6). On December 23, 2005, United States District Judge David G. Larimer granted summary judgment to all defendants. Boomer v. DePerio, 405 F. Supp. 2d 259 (W.D.N.Y. 2005). As to three of the defendants, the district court determined that Boomer had failed to exhaust his administrative remedies; as to the remaining two, physicians Stephen Laskowski ("Laskowski") and Joseph DePerio ("DePerio"), the district court held that the record contained "no evidence of any kind" that they were deliberately indifferent to his medical condition. Id. Boomer appealed the latter determination.

By summary order, the Second Circuit remanded the case for reconsideration. Boomer v. Goord, 283 F. App'x 855, 858 (2d Cir. 2008). Although the Court agreed that Boomer's claims, "as stated in the complaint and developed in his deposition testimony, do not rise to the level of a constitutional violation," it remanded the case "in an abundance of caution" because the district court had not considered Boomer's medical records and the defendants had failed to respond to Boomer's interrogatories. Id. The Court directed the district court "to reconsider the motion for summary judgment in light of plaintiff's medial records and the responses to his interrogatories after these documents are properly submitted to the Court." Id.

Following the Second Circuit's decision, this Court held a scheduling conference with the parties, during which Boomer was granted permission to serve amended interrogatories on defendants Laskowski and DePerio. In addition to doing so, Boomer also filed a motion for production of documents, although he had not previously served document requests. (Docket # 57). Defendants eventually answered the interrogatories. (Docket ## 52, 64). Defendants have neither opposed nor responded to Boomer's motion for production of documents.

Currently pending before this Court are three motions by Boomer: the first seeks an order compelling responses to the interrogatories served on DePerio; the second seeks to compel defendants to respond to Boomer's document requests; and, the third seeks an order appointing counsel. (Docket ## 56, 57, 60). The following constitutes my Decision and Order on the motions.

DISCUSSION

Discovery Motions

A. Interrogatories

Boomer served amended interrogatories on Laskowski and DePerio on September 16, 2008. (Docket # 51). Laskowski responded to Boomer's amended interrogatories on October 27, 2008, twelve days beyond the deadline established by this Court's amended scheduling order, dated September 11, 2008. (Docket ## 48, 52). DePerio did not respond at all, prompting Boomer to file the instant motion to compel and for sanctions on November 13, 2008.*fn1 (Docket # 56).

In response to the motion to compel, by declaration dated March 16, 2009, counsel for defendants advised the Court that DePerio had retired from employment with the Department of Correctional Services ("DOCS") and that counsel had made several unsuccessful efforts to contact him at his last known address. (Docket # 63). The declaration concluded with the following representation, "Presently, I continue to exhaust whatever means of tracking Dr. DePerio. For example, I have learned that Dr. DePerio has a relative who practices medicine in the Buffalo, New York area and will request that person['s] assistance to contact Dr. DePerio." (Id. at ¶ 10). Three days later, on March 19, 2009, DePerio finally answered Boomer's interrogatories. (Docket # 69).

Boomer's motion to compel seeks an order directing DePerio to answer the interrogatories. Since Boomer filed the motion, however, DePerio has done so, albeit belatedly. Thus, the motion to compel is denied as moot.

I further deny Boomer's motion for sanctions, including his request for an order granting judgment in his favor. Counsel has explained that the tardy response resulted from the difficulty in locating DePerio following his retirement from DOCS. Counsel's declaration represents that he attempted to contact DePerio at his last known address, as well as through other unspecified "informal means." Under these circumstances, and where Boomer has not been prejudiced by the delay, I decline to exercise my discretion to award sanctions to Boomer.

B. Motion for Production of Documents

On November 6, 2008, Boomer moved for production of defendants' medical school diplomas and medical licenses, as well as copies of all "grievances, complaints and investigations" and any lawsuits filed against defendants. (Docket # 57). As this Court advised Boomer during the September 11, 2008 status conference, because Boomer had not previously served such requests, he was required to move for leave to do so. This Court construes his pending motion as a request for such leave.

I note at the outset that the Second Circuit's summary order specifically identified the two subjects for the district court's reconsideration: Boomer's medical records and defendants' responses to Boomer's interrogatories. The Second Circuit did not direct or suggest that discovery should be reopened, and the fact discovery deadline had ...


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