The opinion of the court was delivered by: Hon. Hugh B. Scott
Now before this Court is defendants' motion (Docket No. 106*fn1) for a Protective Order or modification of this Court's earlier Order (Docket No. 96) relative to defendants' then-pending summary judgment motion (Docket No. 81; see also Docket No. 97, Report & Recommendation recommending denial of defense summary judgment motion without prejudice to allow plaintiff discovery in order to allow him to respond to motion) and plaintiff's cross motion for extension of time to complete his discovery (Docket No. 89). Also filed (at the instruction of Chambers) is plaintiff's latest motion for discovery regarding grievances of other defendant officers (Docket No. 122).
Previously, defendants moved for summary judgment on behalf of defendants Attica Correctional Facility ("Attica") Superintendent James Conway and Commissioner Brian Fischer (Docket No. 81). This Court recommended denial of that motion (without prejudice) pending plaintiff's discovery to enable him to respond to that motion (Docket No. 96, Order; Docket No. 97, Report & Recommendation). That Report & Recommendation was adopted by Chief Judge Skretny (Docket No. 104). This Court ordered disclosure of complaints and grievances against defendant Pritchard (among other corrections officers) to show defendants Conway and Fischer's supervisory liability for their constructive notice of these complaints. Plaintiff objected to the limitation of the ordered discovery (Docket No. 99), but this objection was denied by Chief Judge Skretny (Docket No. 105). This Court gave the parties until March 24, 2011, to complete this limited discovery (Docket No. 103; see Docket Nos. 96, 98).
Defendants in the present motion seek a Protective Order for documents to be produced by the New York State Department of Correctional Services ("DOCS") Inspector General prior to production to plaintiff to either have these Inspector General records reviewed in camera prior to releasing them to plaintiff or produced with redactions (Docket No. 106). Responses to this motion eventually were due (cf. Docket No. 107) on May 11, 2011, with any reply due by May 25, 2011, and the motion being deemed submitted on May 25, 2011 (Docket Nos. 113, 115, 117).
Also pending, but on a different briefing period, is plaintiff's motion for leave to amend the Complaint to add five DOCS Inspector General's office employees (including Vernon Fonda) as defendants (Docket No. 116)*fn2 . This motion is based, in part, upon information plaintiff learned in the present motion for a Protective Order (see id.).
This is a pro se prisoner's civil rights action, alleging that defendant corrections officer Pritchard used excessive force in conducting a pat frisk on May 4, 2008, at Attica (Docket No. 17, Am. Compl. ¶¶ 6-8; see Docket No. 1, Compl. ¶¶ 12-14). In another incident with this officer, on June 3, 2008, Pritchard allegedly denied plaintiff access to the showers. Plaintiff complained about this denial to defendant Sergeant Marinaccio, but the sergeant ignored the complaint, instead telling Pritchard about it. (Id. ¶¶ 10-11.) Plaintiff then alleges that, when he returned to his cell, Pritchard and defendants Officers Swack, Schuessler, and Sergeant Hodge were waiting for plaintiff in his cell where he was pat frisked, smacked in the head and asked by Pritchard whether plaintiff liked making complaints. Swack then grabbed plaintiff's shirt and asked if he was a "tough guy," and after plaintiff answered, Swack allegedly grabbed plaintiff from behind in a bear hug and threw plaintiff to the ground. The officers then allegedly assaulted, kicked, and punched the prone plaintiff. He was taken to the Special Housing Unit and claims that he was denied pain medication, but he later signed up for sick call for the next few days for back, head, hip, and leg injuries. (Id. ¶¶ 12-16.) Plaintiff then claims that Pritchard made plaintiff's grievance from the May 4 incident "disappear" but it was found as filed (id. ¶¶ 17, 18). Plaintiff alleged "abusive" use of force and retaliation under the First, Eighth, and Fourteenth Amendments, and initially sought $1.5 million in damages (Docket No. 1, Compl. ¶¶ 27, 29). Defendants answered that pleading (Docket No. 14).
Plaintiff later sought (Docket No. 17) and was granted (Docket No. 20) leave to amend the Complaint to allege supervisory liability claims against Conway and Fischer (Docket No. 17; see also Docket No. 28, Answer to Amended Compl.). The Amended Complaint alleges that Pritchard was notorious for abusing prisoners and defendants Conway and Fischer were aware of Pritchard's activities and reputation but had him continue to work at Attica (Docket No. 17, Am. Compl. ¶¶ 20-21).
Plaintiff next sought discovery from defendants on other grievances and complaints alleged against Pritchard (see Docket Nos. 38, 34), which this Court initially denied (Docket No. 67; see Docket No. 72 (plaintiff's objections to this Order); Docket No. 74 (denial Order)). After Conway and Fischer moved for summary judgment (see Docket No. 81), plaintiff responded that he could not address the motion absent some discovery (Docket No. 89), and this Court allowed plaintiff in a limited fashion to conduct discovery to enable him to respond to the defense motion for summary judgment (Docket No. 96). That summary judgment motion was denied, without prejudice, pending this discovery (Docket Nos. 97, 104).
Defense Motion for Protective Order
Defendants have identified 26 inmate complaints (other than plaintiff) to the DOCS Inspector General that fall under plaintiff's discovery requests (as confined by this Court's Order) (Docket No. 106, Defs. Atty. Decl. ¶ 5; id., Decl. of Vernon Fonda ¶ 3). They raise safety and security concerns about releasing to an inmate plaintiff copies of these complaints and grievances (id., Defs. Atty. Decl. ¶ 5; id., Fonda Decl. ¶¶ 6-10). Defendants request either in camera review of these 26 complaints, with complaining inmates' names redacted, to determine whether to produce them to plaintiff; or produce complaints redacted to remove complainants' names and other sensitive information; and to have complaints not produced in plaintiff's cell but in another location (id., Defs. Atty. Decl. ¶ 5). The Inspector General investigates allegations of violations of DOCS's rules and regulations, employee rules, and violations of New York Penal Law by inmates and employees, referring substantiated incidents for review and possible disciplinary action and/or criminal prosecution (id., Fonda Decl. ¶ 4). Substantiated employee misconduct is referred to the DOCS's Bureau of Labor Relations*fn3 for consideration of administrative disciplinary action and potential violations of criminal law are referred to the District Attorney and to Labor Relations for action (id.). The Inspector General preserves the confidentiality of its processes by methods to avoid anyone identifying an informant (id. ¶¶ 7, 9). Even in redacted form, defendants contend would impair the effectiveness of the Inspector General in obtaining confidential complaints (id. ¶¶ 6, 8). Chief of investigations/inspector general Vernon Fonda states that the 26 complaints he has reviewed here have not been substantiated (id. ¶ 3), hence no further action was taken as to them, and he did not believe that Commissioner Fischer "had any role, knowledge or involvement in the handling of these complaints by the IG's office" (id.).
Plaintiff responds that numerous complaints have been filed against officer Pritchard but each has been found that he did nothing wrong. Plaintiff concludes that defendants "are deliberately indifferent to inmates' complaints that are filed against officer Pritchard." (Docket No. 112, Pl. Response at 2.) Defendants had produced 12 grievances but have not produced the 26 grievances identified by the Inspector General's office (id.). Plaintiff argues that defendants could produce these 26 other grievances with names redacted, as they had produced the 12 grievances (id. at 3). Plaintiff believes that these records would show whether complaints were sent to the Commissioner's office, what actions were deemed appropriate, and what ever disciplinary action was taken against Pritchard. Plaintiff, in a separate affidavit, states that he never tried to intimidate anyone who has cooperated with the Inspector General in the 28 years of plaintiff's incarceration (id., Pl. Aff.).
In reply, defendants contend that plaintiff does not grasp the danger of releasing confidential inspector general complaints, reiterating the reasons for confidentiality (to encourage disclosure of misconduct) ...