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Abascal v. Fleckenstein

September 29, 2010

ISIDRO ABASCAL, PLAINTIFF,
v.
DENNIS FLECKENSTEIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. John T. Elfvin, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for hearing and disposition of all non-dispositive motions or applications. Dkt. #4. Thereafter, this case was assigned to the Hon. William M. Skretny. Dkt. #23.

Currently before the Court are plaintiff's motions to compel discovery (Dkt. ##48 and 59) and plaintiff's motion seeking appointment of counsel (Dkt. #67). For the following reasons, plaintiff's first motion to compel is denied, plaintiff's second motion to compel is denied in part and granted in part and plaintiff's motion seeking appointment of counsel is denied.

Plaintiff is a former inmate who, at the time of the events alleged in the complaint was in the care and custody of the New York State Department of Correctional Services ("DOCS"). On or about May 26, 2006, plaintiff commenced this pro se action seeking damages pursuant to Title 42, United States Code, Section 1983 against the various defendants who at all times relevant to the allegations in the complaint were employed at the Attica Correctional Facility ("Attica"). Specifically, plaintiff alleges that his constitutional rights pursuant to the Eighth Amendment were violated because defendants, deprived him of food, took and read his legal documents, assaulted him and failed to intervene at the time of the alleged assault.

FACTUAL AND PROCEDURAL BACKGROUND

As noted above, plaintiff, proceeding pro se, commenced this action on or about May 26, 2006 against defendants Dennis Fleckenstein, William Kump*fn1 , Chester Kosmowski, James T. Conway and Thomas G. Eagen. Dkt. #1. On July 30, 2008, United States District Judge William M. Skretny granted in part and denied in part defendants' motion to dismiss (Dkt. #15). Dkt. #26. Among other things, District Judge Skretny's Decision and Order found that plaintiff had failed to allege a claim for failure to protect against defendants Conway and Eagen and directed that they be dismissed from the case. Dkt. #26, p.17. Based on the foregoing, the remaining defendants are, Dennis Fleckenstein and Chester Kosmowski.

On or about October 20, 2008, plaintiff served and filed a "Request for Production of Documents, Etc. Under Rule 34" (Dkt. #27) and a "Request for Interrogatories to Parties Under Rule 33." (Dkt. #28). On January 30, 2009, defendants Fleckenstein and Kosmowski served and filed their Response to plaintiff's "Request for Production of Documents" (Dkt. #29) and Answer to Interrogatories (Dkt. #30). As part of defendants' Response to plaintiff's "Request for Production of Documents," defendants supplied plaintiff with copies of responsive documents and bates stamped those documents Bates Nos. 1-82. See Dkt. #29, pp.5-86. More specifically, defendants describe that the Response contained the following documents:

a. Copies of the B Block log book entries for February 21 and 22, 2005 (Bates Nos. 1 to 4);

b. A copy of Directive No. 4040 on "Inmate Grievance Program" including revisions (Bates Nos. 62 to 77);

c. A copy of Directive 4910 on "Control of & Search for Contraband" (Bates Nos. 5 to 33);

d. A copy of Attica CF Facility Operations Manual § 3.111, including revisions, on "Cell Block Procedures" (Bates Nos. 34 to 56);

e. A copy of Directive 2111 on "Employee Misconduct" and Directive 2112 on "Report of Criminal Charges" (Bates Nos. 0078 to 0081); and

f. A copy of the New York State Department of Civil Service Classification Standard for Correction Officer, Grade 14 (Bates Nos. 57 to 61).

Dkt. #51, ¶ 10. In opposition to plaintiff's first motion to compel (Dkt. #48), defendants maintain that "every question in the plaintiff's Interrogatories Propounded to Defendants was responded to by the current defendants' [sic] in their Answer to Interrogatories." Dkt. #51, ¶ 11.

On May 8, 2009, the defendants served and filed their Answer. Dkt. #39. On June 11, 2009, plaintiff served and filed his initial disclosure pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure. Dkt. #43. Defendants served and filed their initial disclosure on July 3, 2009. Dkt. #44. In addition to the documents previously disclosed to plaintiff, defendants' initial disclosure contained documents bearing Bates Nos. 83-86, 90-141. More specifically, defendants' initial disclosure contained the following documents:

a. Call out sheet for 22 Company, for February 22, 2005 (Bates Nos. 0083 and 0090);

b. B. Block Cell Frisk Book 05/03/04 - 01/11/06 (Bates Nos. 0084-0086, and 0091-0095); and

c. CORC files for Grievances A-48253-05, A-48346-05; and A-47970-04 (Bates Nos. 0096 - 0141).

Dkt. #51, ¶ 17.

Motions to Compel

On October 27, 2009, plaintiff filed his first motion to compel (Dkt. #48) seeking an Order granting the following relief:

1. Granting leave to plaintiff to file a Subpoena Duces Tecum;

2. Directing the defendants to produce the log book, list, or other documentation reporting or reflecting the Correctional Officers (COs) who worked in B-Block, Companies 21 and 22 on the dates and shifts requested in plaintiff's Request for Interrogatories to Parties ¶¶ 4 through 23;

3. Directing the defendants to produce the log book, list, or other documentation reporting or reflecting what cell-block, floor, and shifts Dennis Fleckenstein, William Kump, and Chester Kosmowski were assigned on the dates and shifts requested in plaintiff's Request for Interrogatories to Parties ¶¶ 4 through 23;

4. Directing the defendants to produce the log book, list or other documentation reporting the incidents and procedures that were carried out concerning plaintiff's physical assault by defendant Dennis Fleckenstein on February 22, 2005 without the blackened portions on the specific times asserted by plaintiff in his Request for Production of Documents, Etc. ¶ 2, and his Affidavit in Objection and Opposition to Defendants' Response ¶ 3;

5. Directing the defendants to produce the policy, directive, manual, or other document that state that procedure in effect during February 22, 2005 at Attica Correctional Facility (ACF) for conducting assault investigations of COs on inmates, including the procedure by which inmates report the assault (Request for Production of Documents, Etc. ¶ 3);

6. Directing the defendants produce the policy, directive, manual, or other document that state the procedure in effect since November 18, 2003 to April 20, 2005 at ACF for conducting inmate chow lists in the cell-blocks, including the procedure by which CO's open inmates' cells to go to the mess-hall (Request for Production of Documents, Etc. ¶ 5);

7. Directing the defendants to produce the policy, directive, manual, or other documents that state the procedure in effect during January 18, 2005 of the Department of Correctional Services (DOCS), and at ACF for conducting cell searches where legal documents are found (Request for Production of Documents, Etc. ¶ 4);

8. Directing the defendants to produce any and all grievances, complaints, or other documents received by the DOCS, or the State of New York, or their agents concerning mistreatment, abuse, and assault of inmates by defendants Dennis Fleckenstein, William Kump, and Chester Kosmowski, and any memoranda, investigative files, or other documents created in response to such documents on, before, or after September 11, 2004 (Request for Production of Documents, Etc. ¶ 4);

9. Directing the defendants to produce all the missing and blanked pages of the revision notice, Attica Correctional Facility (ACF) Operations Manual, Directive 2111 (See plaintiff's Affidavit in Objection and Opposition to Defendants' Repose ¶¶ 4, 5, 6, 7);

10. Directing the defendant to pay plaintiff reasonable expenses incurred in making this motion, including attorneys' fees in a designated sum to cover the extra time and ...


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