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Woodward v. Mullah

July 29, 2010


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


This case was referred to me by Hon. Richard J. Arcara in accordance with 28 U.S.C. §636(b) for all pretrial matters [9].*fn1 Before me are plaintiff's motions to compel [66, 82, 107, 119], motion to supplement his claim [94], motions to serve additional discovery [97, 103, 110], and motion to strike [115]. For the following reasons, I order that plaintiff's motion for leave to serve additional interrogatories [103] be granted in part and denied in part, plaintiff's motion for the issuance of a non-party subpoena [110] be granted, and that all of defendants remaining motions [66, 82, 94, 97, 107, 115, 119] be denied.


The parties are familiar with the background of this case, which is set forth in my previous Decision and Order dated December 4, 2009 [50] and Report, Recommendation and Order February 22, 2010 [79].


A. Plaintiff's Motion to Strike Declaration of Paul Chappius [115]

Plaintiff moves to strike the declaration of Paul Chappius, the Deputy Superintendent of Security at Attica, which was submitted with defendants' April 29, 2010 memorandum of law in opposition to plaintiff's motion for leave to serve additional interrogatories upon defendant Mullah [103]. Before I can address that motion, I must resolve plaintiff's motion to strike.

Mr. Chappius' declaration addresses plaintiff's proposed interrogatory requesting prior inmate grievances and complaints filed against defendant Mullah. Defendants' Memorandum of Law [112], Ex. A. He states that compiling such information would be unduly burdensome to DOCS because this information is not cataloged by reference to the staff member who is the subject of the grievance. Id., ¶3.

According to plaintiff, Mr. Chappius "is more than willingly [sic] to provide help to defendants and provide any testimony in favor the defendants" and is a "liar". Plaintiff's Motion [115], ¶2(c) and (e).

In order to prevail on a motion to strike, plaintiff must demonstrate "(1) that no evidence in support of the allegation would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant.". Koch v. Dwyer, 2000 WL 1458803, *1 (S.D.N.Y. 2000). There is no evidence that the affidavit given by Deputy Chappius is inadmissible. Plaintiff's speculative assertions that Mr. Chappius is untruthful is not sufficient to strike the affidavit. Therefore, plaintiff's motion to strike is denied.

B. Plaintiff's Motions to Compel [66] and to Serve Additional Interrogatories on Defendant Mullah [103]

Plaintiff's motion to compel [66] seeks to have the defendants provide him with certain filings in Hargrove v. Johnson, et al., in which defendant Mullah was a defendant. Plaintiff also seeks to serve additional interrogatories on defendant Mullah, to supplement the ten interrogatories that he originally served on him. Plaintiff's Motion [103].*fn2 Defendants argue that plaintiff's motion to supplement should be denied because the requests are "overly broad, unduly burdensome, cumulative, duplicative and irrelevant". Defendants' Memorandum of Law [112], p. 3.

Plaintiff alleges that defendants Mullah, Riccione, and Burridge assaulted him on March 22, 2008 at the Attica Correctional Facility and submitted false misbehavior reports regarding the incident. Complaint [1], first cause of action. The proposed additional interrogatories seek information concerning: (1) alleged uses of excessive force by defendant Mullah at issue in Hargrove v. Johnson, et al. (plaintiff's proposed interrogatories [104] ¶¶2-6);

(2) an incident involving an unnamed African American inmate housed on 23 Company, who was housed in the second double bunk cell between December 2007 and March 2008 and was caught by defendant Mullah with a weapon or drugs while on his way to recreation (¶¶8 and 9);

(3) all grievances filed against defendant Mullah and any other report/document that allege misconduct on his part (¶7); and (4) witnesses to the alleged March 22, 2008 incident (¶¶10-12).

A party may serve interrogatories that "relate to any matter that may be inquired into under Rule 26(b)." Fed. R. Civ. P. ("Rule") 33(a)(2). "Actions alleging violations of §1983 require especially generous discovery". Cox v. McClellan, 174 F.R.D. 32, 34 (W.D.N.Y. 1997) (Feldman, M.J.). "Prior civilian complaints made against the defendants and incidents of excessive force by individual defendants are clearly discoverable in §1983 actions". Id. "The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the discovery rules found in the Federal Rules of Civil Procedure." Id.

1. Proposed Interrogatories ##1-6 and Plaintiff's Motion to Compel

Proposed additional interrogatories ##1-6, as well as plaintiff's motion to compel, are directed at the alleged used of force at issue in Hargrove v. Johnson, et al., 00-CV-06467(T), a suit in which defendant Mullah is named. At this stage, I conclude that these allegations are relevant to this action. See Cox, 174 F.R.D. at 34. However, according to the defendants, the docket sheet and information about this case was provided by defendant Mullah in his prior interrogatory responses. Defendants' Memorandum of Law [112], p. 4. Defendants also argue that specific documents filed in that case are not in their possession, custody and control as required by Rule 34(a), and that plaintiff can easily request this information from the Clerk of the Court. I agree with defendants. "Because defendant's second set of interrogatories . . . seek information Defendants' have had ample opportunity to discover through other means, the Court limits Defendants' second set of interrogatories pursuant to Rule 26(b)(2)(C)." Kiobel v. Royal Dutch Petroleum Co., 2009 WL 1810104, *5 (S.D.N.Y. 2009). Therefore, plaintiff's motion to compel [66] is denied.

By contrast, plaintiff's motion seeking leave to serve additional interrogatories [103] does not request publicly available documents. While information concerning Hargrove v. Johnson, et al., is available to plaintiff by accessing the documents filed in that case, it is not clear that the information he seeks via his proposed interrogatories would be available from accessing the documents in that case. For example, plaintiff's proposed additional interrogatories ask whether defendant Mullah was "a regular worker in B-Block on 23 company" when the incident occurred, the time of the incident, the sergeant on duty, was use of force used on Hargrove, and documentation relating to the incident. Proposed Additional Interrogatories [104], ¶¶2-6. Therefore, I will grant plaintiff's motion to the extent he seeks to serve proposed interrogatories ## 2-6 [104].

On the other hand, I deny plaintiff leave to serve proposed interrogatory #1, which asks for the allegations made by Hargrove [104]. Such information is publicly available from the complaint in the Hargrove v. Johnson, et al.

2. Proposed Interrogatory #7

As discussed above, defendants rely on the declaration of Mr. ...

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