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Cole v. Fischer

September 18, 2009


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



Before the Court are plaintiff's motions to compel (Docket No. 57*fn1 ) and for sanctions under Rule 11 (Docket Nos. 73, 76*fn2 ). Also pending is plaintiff's motion for summary judgment (Docket No. 44), which has been held in abeyance pending resolution of these procedural motions (Docket No. 79). On April 13, 2009, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 43).


In this § 1983 action, plaintiff, a pro se inmate, alleges that he suffered second degree burns from a makeshift heating pad made by some of the defendants in 2007, the result of alleged deliberate indifference to his medical needs in violation of his Eighth Amendment rights (see Docket No. 59, Pl. Br. at 1). He also alleges failure to protect, failure to act to remedy a wrong, creating and allowing an unconstitutional custom, failure to train, supervise, manage subordinates, deficient management in allowing continued retaliation of false misbehavior reports, and violations of Eighth and Fourteenth Amendments (see Docket No. 1, Compl.). Defendants filed separate Answers (Docket Nos. 20-27, 29-31, 33-36).

Plaintiff's Motion to Compel

The issue in these pending procedural motions is defendants' production of discovery. Plaintiff served his discovery demands upon defense counsel on or about February 16, 2009 (Docket No. 58, Pl. Aff. ¶ 2), including his First Set of Interrogatories (Docket No. 60; see Docket No. 84, Defs. Atty. Decl. Ex. B) and First Request for Production of Documents (Docket No. 61). On March 2, 2009, plaintiff claims that he filed his First Request for Production of Documents (Docket No. 61, filed May 26, 2009; see Docket No. 59, Pl. Br. at 1; but cf. Docket No. 58, Pl. Aff. ¶ 3 (claiming filed Second Set of Request on March 2, 2009)). In his motion to compel, he argues that defendants did not respond within 30 days as required by Federal Rule of Civil Procedure 34(b)(2)(A) (Docket No. 59, Pl. Br. at 1-2; Docket No. 58, Pl. Aff. ¶ 3). Defense counsel did not respond to plaintiff's April 27, 2009, letter regarding this outstanding discovery (Docket No. 58, Pl. Aff. ¶ 4). Plaintiff wrote again on May 1, 2009, to defense counsel requesting responses to his outstanding discovery (id. ¶ 5). Plaintiff argues that his demands, including personnel records of defendants, is relevant to his claims (Docket No. 59, Pl. Br. at 3-4).

On May 18, 2009, defendants filed their Answers to Plaintiff's First Set of Interrogatories (Docket No. 52), and their First Production of Documents (Docket No. 51).

On May 27, 2009, shortly after filing of the motion to compel, the Court ordered defense counsel to review the discovery produced to see if anything else needed to be produced and whether plaintiff's motion sought material pertinent to this case (Docket Nos. 56, 62, 71). At the status conference held on July 9, 2009, defense counsel reported that she had produced over 200 pages of documents from plaintiff's grievances and was preparing to produce his medical records (consisting of over 900 pages). Defense counsel stated that she needed further specification as to plaintiff's demands for materials about disciplinary or other grievance proceedings involving the defendants, and the Court directed plaintiff to supplement his demands in that regard and confirm to the Court what discovery remained outstanding. (Docket No. 77.)

Plaintiff's Motion for Sanctions

Not satisfied with defendants' response to discovery demands, plaintiff moves for Rule 11 sanctions arguing that defendants knowingly and intentionally made false, misleading, and unsupported allegations regarding plaintiff's February 16, 2009, discovery demands (Docket Nos. 73, 76). Plaintiff documents the discovery he submitted to the Court Clerk on or about February 16, 2009, to establish that he had in fact submitted for filing his discovery demands (Docket No. 75, Pl. Disclosure, Ex. A), as well as proof of service upon defense counsel (at its Buffalo regional office) (id., Ex. C) and the cover letter to defense counsel (id., Ex. D). Plaintiff claims that defendants made false and misleading reports on May 7 and 8, 2009 (Docket No. 75, Pl. Disclosure, Ex. B), regarding whether plaintiff served and filed his initial discovery demands (Docket No. 74, Pl. Decl. at 1). He contends that defendants' statements are attempts to stall, delay and cost plaintiff in submitting copies or additional discovery demands (id.). In a May 7, 2009, letter defendants sought plaintiff to resend the interrogatories and document request because they were not received (although the regional office of the Attorney General had plaintiff's other case, No. 08CV699, but not this case) (Docket No. 75, Ex. B). While in the May 8, 2009, letter, defense counsel wrote that she located plaintiff's discovery demands that seemed to have been sent to Albany and requested a 30-day extension from that date to comply with them (id.).

Plaintiff claims that he sent three sets of demands because of defense counsel's claimed non-receipt (Docket No. 76, Pl. Request for Sanctions ¶ 13), at a cost of ten cents per page and postage of $5.60 (id. at page 6), although he does not state the number of pages he had to reproduce.

Defense Responses

As for plaintiff's motion for sanctions, defense counsel repeats the chronology of her correspondence with plaintiff, that at first she believed that the discovery needed to be resent but was found the next day. writing to plaintiff indicating that the demands were found (Docket No. 84, Defs. Atty. Decl. ¶¶ 2-5, Exs. C, D). Instead of attempting to resolve the matter short of filing motions, defendants conclude that plaintiff has resorted to motion practice (id. ¶ 6). Defendants contend that, in furnishing initial disclosures to plaintiff, they were responsive to much of his document production demands he later made (id. ¶ 7). Pointing ...

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