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Sileo v. Schuck

February 26, 2010


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge


Plaintiff Steven Sileo ("Sileo") has filed a pro se complaint under 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights by subjecting him to excessive force on September 23, 2005 at Attica Correctional Facility. (Docket # 1). Currently pending before this Court are two motions to compel by Sileo. (Docket ## 17, 23).

This Court's scheduling order, dated May 5, 2009, directed defendants to provide plaintiff with certain initial disclosures by June 22, 2009. (Docket # 10). Pursuant to that order, defendants disclosed nearly 400 pages of documents on that date. (Docket # 14). On August 14, 2009, Sileo filed his first motion seeking an order from this Court compelling defendants to produce, in accordance with the Court's instructions in the scheduling order, a videotape of plaintiff being escorted to the Special Housing Unit following the incident on September 23, 2005, as well as the transcripts of plaintiff's disciplinary hearings held on October 6, 2005 and July 7, 2006.*fn1 (Docket # 17). Despite this Court's issuance of a motion scheduling order, defendants never responded to Sileo's motion. (Docket # 19).

On August 14, 2009, Sileo also filed a request for production of documents that he had served upon defendants on July 15, 2009. (Docket # 18). That request sought several categories of documents and renewed Sileo's demands for the videotape and hearing transcripts. (Id. at ¶¶ A-C). After requesting the documents from defense counsel several more times without response, Sileo filed the second motion to compel on September 23, 2009. (Docket # 23 at ¶¶ 5, 7). On November 2, 2009, defendants responded to some of Sileo's requests for production and objected to others. (Docket # 27). Defendants now contend that the November 2, 2009 production mooted Sileo's second motion to compel. (Docket # 28).

For the reasons discussed below, Sileo's motions to compel are granted in part and denied in part.

I. Videotape and Hearing Transcripts: Requests A-C

I turn first to Sileo's request for transcripts of the disciplinary hearings held on October 6, 2005 and July 7, 2006. Defendants have represented that they have provided Sileo with a copy of the audio cassette of the October 6, 2005 hearing, but that no written transcript of that hearing was created. (Docket # 27 at 1). Further, defendants have provided Sileo with both a copy of the audio cassette and the written transcript of the July 7, 2006 hearing. (Id. at 2). Accepting defense counsel's representation that no transcript of the October 6, 2005 hearing exists, I find that defendants have satisfied their discovery obligations as to the hearing transcripts and deny as moot Sileo's motions to compel production of those items.

With respect to the videotape depicting Sileo being escorted to the Special Housing Unit on September 23, 2005, defendants have represented that no such videotape exists.

(Docket # 27 at 2). In his reply, however, Sileo has provided documents showing that an official with the New York State Department of Correctional Services ("DOCS") reportedly reviewed a videotape in the course of investigating a grievance filed by Sileo concerning the alleged assault on September 23, 2005. (Docket # 33 at ¶ 19; Ex. A). Defendants' response does not indicate whether a videotape once existed that has since been destroyed. A videotape of the plaintiff taken the day of the assault at issue in his complaint is clearly relevant to his case; therefore, if it does exist, defendants must provide it to Sileo by no later than March 12, 2010. Moreover, to clarify the confusion over the status of the videotape, defendants shall file an affidavit by no later than March 12, 2010, explaining (1) whether the requested videotape ever existed and, if so, the circumstances of its destruction and (2) if it did not exist, what videotape the DOCS official allegedly reviewed in the course of his grievance investigation.

II. Log Book Entries: Requests F-H

Sileo seeks "log-book entries" from Attica's "Time-square," A-Block and B-Block, made between 7:00 a.m. and 3:00 p.m. on September 23, 2005 -- the date of his alleged assault. (Docket # 18 at ¶¶ F-H). Defendants have not produced the requested log book entries, objecting that the requests are overbroad, irrelevant and intended to harass and annoy. (Docket # 27 at 3-4). Sileo argues that defendants' objections were not timely made and thus are waived. (Docket # 33 at 4). He further contends that the log book entries are relevant because they could contain names of witnesses to the incident and other facts regarding the assault. (Id. at ¶ 23).

Sileo is corrected that failure to raise timely objections generally results in a waiver of those objections. E.g., Land Ocean Logistics, Inc. v. Agua Gulf Corp., 181 F.R.D. 229, 236 (W.D.N.Y. 1998) (collecting cases); Williams v. Nat'l Hous. Exch. Inc., 165 F.R.D. 405, 409 (S.D.N.Y. 1996). In any event, log book entries referencing the alleged use of force are clearly relevant. In addition, those entries may enable Sileo to identify witnesses present during the time frame of his alleged assault and thus lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1) ("[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence"). Further, Sileo's request is sufficiently limited in time and scope to save it from overbreadth. Accordingly, Sileo's motion to compel the log book entries is granted. Defendant shall provide the requested materials by no later than March 12, 2010.

III. Prior Reports: Requests J-L

Sileo additionally seeks production of the following documents from each defendant's personnel file: "all prior reports of abuse of authority, employee misconduct, and excessive force complaints . . . from the date of employment to the present date; including but not limited to, any and all psychological evaluations, progress reports, inmate grievance complaints, as well as any required participation of anger, occupational, or stress management, and or any recommendations of reprimand issued by a supervisor." (Docket # 18 at ¶¶ J-L). Sileo has further requested all personnel records evidencing any discipline imposed on defendant Schuck in connection with events on September 23, 2005. (Id. at ¶ J). Finally, Sileo also seeks records related to a June 30, 1997 incident at Attica Correctional Facility involving another inmate and "Defendant Michael Dylag, and [h]is [b]iological ...

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