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Hutchinson v. Wichtowski

October 23, 2009

ALTON C. HUTCHINSON, 93-B-0397, PLAINTIFF,
v.
THOMAS WICHTOWSKI, JASON ELLIOT AND WILLIAM HUGHES, DEFENDANTS.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

The parties have consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. §636(c) [17].*fn1 Before me are plaintiff's motions to compel [152], for leave to serve additional interrogatories [161], and to extend the discovery deadline [166].*fn2 For the following reasons, plaintiff's motion to compel [152] is GRANTED in part and DENIED in part, plaintiff's motion for leave to serve additional interrogatories [161] is GRANTED, and plaintiff's motion to extend the discovery deadline [166] is GRANTED.

BACKGROUND

Plaintiff, an inmate, commenced this 42 U.S.C. §1983 action alleging that on January 10, 2005, corrections officers at the Elmira Correctional Facility assaulted him after he was falsely accused of raping a civilian employee of the prison [1].

ANALYSIS

A. Plaintiff's Motion to Compel

Plaintiff moves to compel photographs responsive to his first and second document requests that he alleges were withheld by defendants. Plaintiff contends that he was able to locate 35 photographs (numbered 071-105) taken on the day of the alleged incident that were not produced to him. Plaintiff's Affirmation [152], ¶38. He also seeks production of "each and every Employee Accident/Injury Report [defendants] filed following their involvement in a use of force report", the "supporting deposition of inmate Javier Pacheco, and a copy of plaintiff's hearing tape #05-017". Id., ¶59.*fn3

Plaintiff's motion seeks sanctions for defendants' attempts to "thwart [his] efforts to discover the information [he has] sought" id., ¶68. However, at the October 5, 2009 status conference plaintiff conceded that the sole purpose of his motion was to receive the requested discovery and not to sanction defendants. Plaintiff's Declaration [183], ¶11. Therefore, this aspect of plaintiff's motion is deemed withdrawn.

1. Unusual Incident ("UI") Report Photographs

In response, defendants concede that certain photographs in their possession from the UI report were not previously disclosed to plaintiff. Longo Declaration [173], ¶8. Defendants' counsel, Darren Longo, explains that he did not previously produce these photographs because he believed them to be the same as the photographs from File 05/200 of the Inspector General's Office ("IG"), which were produced to plaintiff. Id., ¶¶1,8. While the photographs from the UI report appear to be cropped versions of the IG photographs, defendants concede that there is one photograph in the UI report (000015) that was not among the IG photographs produced. Consequently, defendants have now produced all of the photographs from the UI report. Id., Ex. B.

Although not raised in plaintiff's motion to compel, defendants have indicated that six of the photographs included in the IG files are actually thumbnails of short digital videos. Longo Declaration [173], ¶3; Longo Declaration [181], ¶30. Defendants' counsel requests additional time to determine a mechanism for producing these videos to plaintiff consistent with DOCS' policies. Longo Declaration [181], ¶¶34-35. Defendants shall produce the thumbnail videos to plaintiff by November 16, 2009.

2. Photographs from Elmira's Deputy Superintendent for Security Services ("DSS")

Upon making further inquiries, Mr. Longo also received an additional 31 photographs (Ex. C) from Stephen Wenderlich, Elmira's DSS, which he believes are duplicative of the previously produced photographs. Id., ...


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