The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Plaintiff Thomas W. Boyde, IV ("Plaintiff"), by and through his attorneys, Ward Greenberg Heller & Reidy LLP, pro bono counsel, is suing Defendants Orleans County, Orleans County Sheriff Scott D. Hess, Lieutenant Mignano, Sergeant Weaver, Deputy Reamer, Deputy Brett, Deputy Mignano, Deputy Torres, Deputy Salvatore, Deputy Allen, and Orleans County Jail Superintendent Kevin E. Hale ("Defendants") for declaratory relief and monetary damages pursuant to 42 U.S.C. § 1983. Now before the Court is Defendants‟ motion (Docket No. [#88]) to preclude Plaintiff from offering a note ("Note"), dated August 6, 2007, addressed to Sergeant Weaver, into evidence at trial or in response to any potential motion for summary judgment. Plaintiff produced the note only after discovery was closed, and after indicating that no such note existed. For the reasons that follow, Defendants‟ motion to preclude is denied.
On July 1, 2007, Plaintiff was arrested and subsequently transported from Monroe County Jail to the Orleans County Jail. Plaintiff alleges that on or about July 31, 2007, inmate Carl Turner ("Turner") was transported to the Orleans County Jail and during transport, was informed by two Monroe County deputies that Plaintiff was an informant in a federal drug case. Amended Complaint (Second), 4 [# 109]. Plaintiff further alleges that another prisoner overheard Turner say that Plaintiff was an informant and that inmates at the Jail were plotting to kill him. Id. at 5. Plaintiff states that he told Sergeant Weaver in early August 2007 that he was in imminent peril and wanted to be moved out of Orleans County Jail. Id. Significantly, Plaintiff also alleges that he wrote a letter to Weaver about his safety concerns, which is the Note Defendants now seek to preclude. Id. The Note indicates that Plaintiff was concerned about a non-functional security camera in the cell block, that the situation had "gotten real bad" in the cell block, that he had asked several deputies for a grievance form and they did not give him one, and that Turner and his friends were going to try to kill him. Plaintiff‟s Memorandum of Law in Opposition to Defendants‟ Motion to Preclude, Ex. A [# 96-1]. The Note also asks that he be removed from the jail immediately based on the situation. Id. The Note is dated August 6, 2007. Id.
On August 29, 2007, Turner and Plaintiff were involved in a fight in the cell block. Amended Complaint (Second) at 7-8. Plaintiff claims he was attacked from behind during the fight, and suffered serious facial lacerations and a serious injury to his right shoulder. After the fight, Plaintiff was relocated to Steuben County Jail. Id.
On June 4, 2008, Plaintiff filed this lawsuit against the Defendants, claiming they deprived him of his federally protected rights. During discovery, Defendants submitted two sets of interrogatories to Plaintiff. On April 30, 2009, the first set included the following request:
"16- Set forth in detail all bases for plaintiff‟s contention that the Defendants "knew or should have known that plaintiff was the subject of a planned attack and did nothing to prevent said attack," as alleged in paragraph 29 of the amended complaint, identifying each Defendant to whom his allegation concerns."
Id. at Ex. C. Plaintiff responded by stating that his answers to previous questions addressed it. However, Plaintiff did not mention previously or in his response to paragraph 16, that there was a handwritten note authored by him to Sergeant Weaver.
On July 29, 2009, in the second set of interrogatories, Defendants requested that Plaintiff identify and attach "any documentation in support of Plaintiff‟s claim that the Orleans County Jail was aware that the security-camera was not operating at that time" and "any and all documents supporting Plaintiff‟s "deliberate indifference‟ claim." Id. at Ex. E. Again, Plaintiff failed to identify or produce the Note.
On April 28, 2010, Defendants deposed Plaintiff. At deposition, Plaintiff testified that he never put his complaint in writing. Defendant‟s Motion to Preclude [#88] Ex. I. However, on June 6, 2010, he submitted an errata sheet, in which he claimed for the first time in this action, that he put his complaint in writing to Sergeant Weaver. Although, Plaintiff did not correct another portion of his deposition in which he had stated that he did not write down his complaint. Id. Ex. J; Ex. I at 57. On June 24, 2010, all parties participated in a telephone conference with Magistrate Judge Feldman, at which time Defendants raised the issue of the whereabouts of the Note. Plaintiff responded that he had the Note in his possession, and on June 29, 2010, he produced it to Defendants. Id. at 8. On July 15, 2010, Defendants filed the subject motion to preclude the Note.
In response to the Motion to Preclude, Plaintiff states that he forgot about the Note until the deposition jogged his memory. Plaintiff‟s Memorandum of Law in Opposition to Defendants‟ Motion to Preclude, 3. According to Plaintiff, he kept a copy of the Note for himself, and in November 2007, sent the original, along with all of his personal papers, to his son. Id. His son has submitted an affidavit stating that he received the Note from his father and kept it for safekeeping until his father requested it on April 28, 2010. Declaration of Thomas W. Boyde, V [# 96-2]. Plaintiff‟s son mailed the Note to him on May 3, 2010.
Plaintiff maintains that his forgetfulness is a substantial justification for failing to comply with Defendants‟ discovery requests, and that the error was harmless. Plaintiff suggests that this Court reopen ...