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Robert C. Treadway, Jr v. Sheriff James R. Voutour

July 26, 2011


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Pro se plaintiff Robert C. Treadway, Jr. ("Plaintiff"), has filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that while he was a prisoner at the Niagara County Jail ("NCJ") he received inadequate dental care in violation of the Eighth Amendment to the United States Constitution.

In his Second Amended Complaint (Docket No. 7), Plaintiff alleges that Defendant failed to provide dental care to Plaintiff for approximately six months between May and December of 2009. As a result of the alleged lack of dental care, Plaintiff required a root canal, which in turn caused him pain, loss of sleep, inability to properly eat, and depression.

Currently before the Court are Plaintiff's three motions to compel discovery (Docket No. 16, 17, 27), a motion entitled "Motion for an Order Directing U.S. Marshal to Transport Plaintiff with All Legal Materials" (Docket No. 23), and a motion to compel Defendant to Comply with the New York State Commission of Corrections Minimum Standards ("NYSCOCMS") Part 7031*fn1 (Docket No. 32).


A. General Legal Principles

Courts have wide discretion to manage discovery. In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003). Discovery under the Federal Rules of Civil Procedure is broad in scope, requiring only that the information sought be "relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). See also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Daval Steel Prods., a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991) (parties entitled to discovery of any matter that appears "reasonably calculated to lead to the discovery of admissible evidence"); Morse/Diesel, Inc. v. Fidelity and Deposit Co. of Maryland, 122 F.R.D. 447, 449 (S.D.N.Y. 1988) (term "reasonably calculated" in Rule 26(b)(1) means "any possibility that the information sought may be relevant" to a party's claim or defense) (internal quotations omitted).

Pursuant to Fed. R. Civ. P. 34, a party may serve on any other party a request for production of documents. In the event that the party on whom the request is served fails to comply, the party seeking the documents may move a court to compel production of the documents. Fed. R. Civ. P. 37. Specifically, Rule 37(a)(1) provides that "[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery." Fed. R. Civ. P. 37(a)(1). "The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Fed. R. Civ. P. 37(a)(1).

"Confer" means to meet, in person or by telephone, and make a genuine effort to resolve the dispute by determining ... (a) what the requesting party is actually seeking, (b) what the discovering party is reasonably capable of producing that is responsive to the request, and (c) what specific genuine issues, if any, cannot be resolved without judicial intervention.

Big Apple Pyrotechnics v. Sparktacular Inc., No. 05 Civ. 9994, 2006 WL 587331, at *1 (S.D.N.Y. Mar. 8, 2006). The movant must provide evidence of its good faith efforts; a mere conclusory statement where the movant asserts he has fulfilled this requirement is insufficient. See Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96 Civ. 7590, 1998 WL 67672, at *2 (S.D.N.Y. Feb. 18, 1998).

B. Motions to Compel and Document Requests

On September 13, 2010, Plaintiff filed two "motions to subpoena" (Docket No. 16, 17), which this Court treated as motions to compel (Docket No. 19). On September 27, 2010, Plaintiff filed his first Request for Production and Inspection of Documents and Things (Docket No. 20). Defendant argues that the motions to compel must be denied because they were filed prior to serving any actual discovery demands, because Defendant did not refuse to respond to any discovery demands, and because Plaintiff did not include a certification stating that he made a good faith attempt to confer with Defendant pursuant to 37(a)(1) of the Federal Rules of Civil Procedure (Docket No. 21, ¶¶5-7).

At the time of Plaintiff's first two motions to compel, he had not yet made a discovery demand, and, as such, Defendant did not fail to respond. Accordingly, Plaintiff's motions to compel (Docket No. 16, 17) are denied as premature. See Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th Cir. 1991) (motion to ...

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