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Vensel Hardy v. Sgt. Christina Loverde

September 21, 2011

VENSEL HARDY, PLAINTIFF,
v.
SGT. CHRISTINA LOVERDE, DANIEL LEONARD, SEAN WARNER, CHRIC WEGNER, AND MICHAEL BOCZAR, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

This case was referred to the undersigned by Honorable William M. Skretny on January 6, 2010, for all pretrial matters. The matter is presently the court on Plaintiff's motions to compel (Docs. Nos. 53 (filed February 1, 2011), 58 (filed March 10, 2011), and 61 (filed March 22, 2011)), and to amend/correct the complaint (Doc. No. 62), filed March 22, 2011.

BACKGROUND and FACTS*fn1

Plaintiff Vensel Hardy ("Plaintiff"), proceeding pro se, commenced this civil rights action on December 16, 2008, in the Southern District of New York, alleging that on October 7 or 8, 2008, while incarcerated at Attica Correctional Facility ("the correctional facility") in Attica, New York, Plaintiff had a seizure, following which five "John Doe" defendants, employees of New York State Department of Correctional Services ("DOCS"), assaulted Plaintiff and then failed to obtain proper treatment for Plaintiff's injuries. Because the correctional facility where the events or omissions given rise to Plaintiff's claim occurred is located in the Western District of New York, on February 23, 2009, the case was transferred to this court.

On February 24, 2010, Plaintiff filed an Amended Complaint (Doc. No. 27) ("Amended Complaint"), and, on April 12, 2010, filed a Supplement to the Amended Complaint (Doc. No. 30) ("Amended Complaint Supplement"). Plaintiff's Amended Complaint names as Defendants DOCS employees Sgt. Christina LoVerde ("LoVerde"), Daniel Leonard ("Leonard"), Sean Warner ("Warner"), Chric Wegner "Wegner"), and Michael Boczar ("Boczar"). Plaintiff asserts in the Amended Complaint and the Amended Complaint Supplement that Defendants violated Plaintiff's rights under the Eighth Amendment by subjecting Plaintiff to excessive force, failing to protect Plaintiff from excessive force inflicted by other DOCS employees, and denying Plaintiff medical treatment for injuries allegedly sustained as a result of the claimed physical abuse.

Plaintiff particularly alleges that on October 7, 2008, Plaintiff suffered a seizure in his cell at the correctional facility, subsequent to which Defendants Leonard, Warner, Wegner, and Boczer forcibly removed Plaintiff from his cell and assaulted him, while Defendant LoVerde watched and made gestures encouraging the assault. Amended Complaint, Second Claim; Amended Complaint Supplement at 4. Plaintiff alleges that he lost consciousness as a result of the seizure and assault, and that upon regaining consciousness, Plaintiff had a cigarette burn between his eyes, and that Defendants denied Plaintiff medical treatment for the burn and other injuries allegedly sustained as a result of the assault. Amended Complaint Supplement at 4.

Plaintiff further alleges that on November 29, 2008, Defendants retaliated against Plaintiff for filing a grievance complaining about the alleged October 7, 2008 incident. Amended Complaint, First Claim; Amended Complaint Supplement at 3-4. Plaintiff specifically alleges that on November 29, 2008, while in the correctional facility's recreation yard, Defendant Warner pulled Plaintiff from the yardline, Defendant Leonard then searched Plaintiff for weapons and pushed Plaintiff's face into a wall, following which Defendants Leonard, Warner, Wegner assaulted Plaintiff. Id.

Defendants's answer was filed on September 1, 2010 (Doc. No. 38) ("Answer"). On February 1, 2011, Plaintiff filed a Motion for an Order Compelling Discovery (Doc. No. 53) ("Plaintiff's First Motion to Compel"), and a supporting Memorandum of Law (Doc. No. 54) ("Plaintiff's Memorandum"). In opposition to Plaintiff's First Motion to Compel, Defendants filed on February 16, 2011, the Declaration of Assistant Attorney General ("Assistant A.G.") Darren Longo ("Longo") (Doc. No. 57) ("First Longo Declaration").

On March 10, 2011, Plaintiff filed a Motion to Compel Production (Doc. No. 58) ("Plaintiff's Second Motion to Compel"). On March 22, 2011, Plaintiff filed a Motion to Compel Discovery (Doc. No. 61) ("Plaintiff's Third Motion to Compel"), and a Motion for Leave to File an Amended Complaint (Doc. No. 62) ("Motion to Amend"). In opposition to Plaintiff's Second Motion to Compel, Defendants filed on April 1, 2011, the Declaration of Assistant A.G. Longo (Doc. No. 64) ("Second Longo Declaration"). In opposition to Plaintiff's Third Motion to Compel, Defendants filed on April 6, 2011, the Declaration of Assistant A.G. Longo (Doc. No. 67) ("Third Longo Declaration"). In opposition to Plaintiff's Motion to Amend, Defendants filed on April 6, 2011, the Declaration of Assistant A.G. Longo (Doc. No. 68) ("Fourth Longo Declaration"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's First Motion to Compel is DISMISSED as moot in part, and DENIED in part; Plainitff's Second Motion to Compel is DISMISSED as moot in part, and DENIED in part; Plaintiff's Third Motion to Compel is DENIED; and Plaintiff's Motion to Amend is DENIED without prejudice.

DISCUSSION

1. First Motion to Compel

In his First Motion to Compel, Plaintiff seeks to compel Defendants to produce the names of all inmates located in the same Company of the correctional facility as Plaintiff between October 8 and November 29, 2008. First Motion to Compel at 1. Plaintiff maintains he needs such information to determine which inmates witnessed Defendants' alleged use of excessive force. Id. Defendants argue in opposition, that Plaintiff has not previously requested this information, rendering the First Motion to Compel premature. First Longo Declaration ¶ 5. Defendants further maintain that they requested the correctional facility provide a list of inmates during the relevant time period, but that Plaintiff failed to specify a cell block, and each cell block at the correctional facility has a Company 5. Id. ¶¶ 6-8. Assuming Plaintiff seeks the names of inmates in Company 5 of the same cell block in which Plaintiff was housed during the relevant time, Defendants reframed their request to the correctional facility for a list of the inmates housed in Company 5 of the same cell block in which Plaintiff was housed during the relevant time. Id. ¶ 9. Plaintiff has not argued in opposition to Defendants' assertions on this point.

Further, Defendant has already requested the information regarding the identity of the inmates housed at the correctional facility in the same cell block and Company as Plaintiff during the relevant period of time and has indicated their intention, upon receiving such information from the correctional facility, to forward the information to Plaintiff. Accordingly, this aspect of Plaintiff's First Motion to Compel is DISMISSED as moot. If, however, as based on the docket, Defendants ...


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