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Murray v. Fischer

August 28, 2009


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


Before the Court are (a) plaintiff's motion to compel and for an Order allowing him to contact other inmates (Docket No. 26*fn1 ) and (b) plaintiff's motion for enlargement of time to amend or name parties (Docket No. 29*fn2 ). Responses to both motions were due to be filed on or before August 13, 2009, with any replies due on or before August 20, 2009, and the motions then was deemed submitted (without oral argument) on August 20, 2009 (Docket Nos. 28, 30). Separately, defendants sought an extension of time to respond to plaintiff's Interrogatories (letter of Assistant Attorney General Zimmermann to Chambers, Aug. 7, 2009), which was granted (Docket No. 34).


Plaintiff sued defendants arguing that his religious rights were being violated due to being deprived a Kosher meal during Passover when he was served a "restricted diet loaf," (Docket No. 17, Pl. Aff. ¶¶ 5-16, Exs. A-F; see generally Docket No. 1, Compl.; Docket No. 7, Am. Compl.). Plaintiff alleges that his First and Eighth Amendment rights were violated, as well as his rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq., by being fed a Kosher restricted diet loaf during Passover alleging that this loaf was leavened and prohibited during this holy day (Docket No. 7, Am. Compl. ¶¶ 42-45; see Docket No. 32, Defs. Atty. Decl. ¶ 4). The Complaint and Amended Complaint name Commissioner Brian Fischer, Southport Correctional Facility (hereinafter "Southport") superintendent David Napoli, and other Southport prison officials and employees, among others (Docket Nos. 1, Compl., 7, Am. Compl.). After the Order granting plaintiff in forma pauperis status dismissed claims in the original Complaint against some defendants, plaintiff filed his Amended Complaint and the remaining defendants jointly answered on March 25, 2009 (Docket Nos. 3, 7, 13; see Docket No. 32, Defs. Atty. Decl. ¶¶ 6-7). The Court denied (without prejudice) plaintiff's motion for appointment of counsel (Docket No. 24).

Motion to Compel

As a result of this denied application for counsel, plaintiff now needs to have inmate witnesses identified and be able to contact them regarding this case (see Docket No. 26, Pl. Motion). Plaintiff seeks disclosure of the inmates located at "D" Block of Southport from April 2, 2007, until February 2008, the time he was assigned to that cell block (id. at 1). Plaintiff claims he needs to identify these people in order to support his assertion that he made oral objections to the restricted diet and to establish the existence of the practice at Southport and statewide to discriminate against Jewish inmates regarding their dietary needs (id. at 1, 3). He seeks an Order allowing him to correspond with other inmates in order to obtain their statements or affidavits in support of his claim (id. at 4).

Defendants object to plaintiff being given leave to contact inmate witnesses because such contact violates Department of Correctional Services ("DOCS") regulations (Docket No. 32, Defs. Atty. Decl. ¶¶ 11-14; Docket No. 33, Sheahan Decl. ¶¶ 6-9, 3-5, 10, Ex. A, DOCS Dir. 4422, Inmate Correspondence Program regulation). DOCS does not disclose to inmates the location of other inmates for safety and security of its facilities (Docket No. 33, Sheahan Decl. ¶¶ 3-5), while inmate-to-inmate correspondence requires special approval by the superintendents of both facilities (id. ¶ 7, Ex. A). Defendants also argue that the time period of inmates sought, from April 2, 2007, to February 2008, is overly broad, since Passover in 2007 occurred only in April 5-12, 2007 (Docket No. 32, Defs. Atty. Decl. ¶ 15). They indicate that plaintiff can call a non-inmate witness, Rabbi Matasar, regarding the diet he was ordered to have during Passover (id. ¶¶ 17-18), rather than require defendants to identify and then make available inmate "witnesses."

Motion for Enlargement of Time

Plaintiff then moved for enlargement of time to move to amend or add parties (Docket No. 29). Plaintiff contends that prison officials deprived him resources from the facility's law library to prosecute this claim to the full extent he wished, therefore he believed that he needed more time (90 days) to move for leave to amend the Complaint or add parties (id., Pl. Aff. ¶¶ 3-9, 1). The current Scheduling Order (Docket No. 15, entered Apr. 6, 2009) had motions for leave to amend or to add parties due by May 6, 2009.

Defense counsel wrote to Chambers, on August 18, 2009, noting that all deadlines should be extended if plaintiff's motion for an extension of the time to move to amend or add parties is granted (Zimmermann letter).


I. Standards

A. Compel Discovery

The Scheduling Order in this case ordered the parties to produce initial disclosures, pursuant to Federal Rule of Civil Procedure 26(a)(1) (Docket No. 15, Scheduling Order (Pro Se Prisoner Action) ¶ 3). Initial disclosure includes producing "a copy of, or a description by category and location of, all documents . . . that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims . . . ." Fed. R. Civ. P. 26(a)(1)(B) (effective Dec. 2007). Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling ...

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