The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the motion of plaintiff (an inmate proceeding pro se) to compel (Docket No. 47*fn1 ). Responses to this motion were due by September 1, 2011, with any reply due September 13, 2011, and the motion deemed submitted (without oral argument) on September 13, 2011 (Docket No. 50).
Previously, plaintiff moved for discovery sanctions (Docket No. 31), which was granted in part (Docket No. 41) and the award of discovery sanctions is pending (Docket No. 45). Familiarity with this previous Order (Docket No. 41) is presumed.
Plaintiff initially sued the Steuben County jail administer Christopher Lian, Sheriff Richard Tweddell, eighteen other corrections officers, officials and jail officers, and John Doe officers for excessive force and cruel and unusual punishment while in the Steuben County Jail (Docket No. 1, Compl.). Plaintiff claims that in the summer of 2008 defendant Lian laughed at plaintiff and claimed that he was not responsible since plaintiff had been released from custody as officers jumped plaintiff and assaulted him (id. at 5). Plaintiff also moved for leave to proceed in forma pauperis (Docket No. 2). This Court, pursuant to 28 U.S.C. § 1913, granted that motion but dismissed the claims against most of these defendants, leaving claims against Lian, Theodore Haley, Robert McKinley, and Donald Strittmatter (Docket No. 3). Plaintiff later identified three of the John Doe defendants (see Docket No. 51, 57, 58) and he was given until October 3, 2011, to file and serve an Amended Complaint naming them (Docket No. 58).
This case then was referred to the undersigned for pretrial disposition (Docket No. 14) and a Scheduling Order was entered (Docket No. 15).
Motion for Discovery Sanctions, Docket No. 31
Plaintiff complained that the Scheduling Order had required defendants to provide initial disclosure by May 2, 2011, but defendants withheld that information (Docket No. 31, Pl. Letter Motion at 1). Plaintiff claimed that he wrote repeatedly to defense counsel seeking information about two additional defendants but defendants failed to respond. Defendants had records of logs of who was on duty (deputies and sergeant) on July 16, 2008, when the alleged incident occurred. Plaintiff sought sanctions for defendants' "willful violation" of the Scheduling Order in not producing this initial disclosure (id.). Plaintiff also wanted identification of plaintiff's cell location at the time of the July 16, 2008, incident; the names of inmates in neighboring cells at that time; video recordings and photographs of the cell taken the next day from a camera mounted on the ceiling above that cell; a copy of photographs of plaintiff taken on July 16 upon his entry into the Wyoming County Jail, showing injuries to his face; a copy of plaintiff's Order of Release; and all policies and procedures on how deputies are to enter a cell in force (id. at 2).
Defendants responded that counsel inquired if other deputies or officers were involved in this incident and further discovery may or may not reveal additional officers involved (Docket No. 37, Defs. Atty. Affirm. ¶¶ 3-5). As for plaintiff's other requests, defendants state that plaintiff was in Unit 3. Defendants decline to identify three other inmates near plaintiff's cell absent an Order due to the privacy rights of these inmates, but names a fourth person. Defendants reveal that video footage exists and is being retained, but defendants do not possess photographs of plaintiff's entry into the Wyoming County Jail. (Id. ¶¶ 6-8.) Defendants deny the existence of specific policies regarding procedures for entry into cells by force (id. ¶ 9) and defendants do not have plaintiff's Order of Release in their possession (id. ¶ 10). They also produced grievances, plaintiff's inmate and medical records (id. ¶ 11; Docket No. 38). They conclude that plaintiff's motion for sanctions should be denied.
In reply, plaintiff first objects to the late response to his motion (due June 14, 2011, but dated June 20, 2011) and seeks reasonable sanctions (Docket No. 40, Pl. Letter Reply at 1). Plaintiff cites his filing fee and the costs he had to bear from his inmate account for mailing motion papers, but he did not state what his costs were.
This Court granted plaintiff's motion to compel production of defense's initial disclosure and denied as moot his motion to compel production of certain items and ordered briefing of plaintiff's discovery sanction application (Docket No. 41).
Plaintiff's Second Motion to Compel, Docket No. 47
Plaintiff now seeks production of a copy of the state court Order releasing plaintiff from Steuben County Jail; photographs taken of plaintiff's cell in July 16-17, 2008; the name of the person who authorized entry in force into that cell, all memoranda on that authorization; photographs of plaintiff when he was processed in the Wyoming County Jail in July 16, 2008; copy of log entries when plaintiff left for court and returned on July 16, 2008; an affidavit from a Louis Early as to what he saw on July 16, 2008; all files (including internal affairs and inspector general files) regarding this incident; each defendant's personnel files, specifically on disciplinary records; and any other use of force incidents whether defendants were disciplined (administratively or criminally) (Docket No. 48, Motion at 1-2). He affirms that he attempted to obtain this discovery unsuccessfully and wrote numerous times to defense counsel to obtain it (Docket No. 49, Pl. Affirm.), although he did not attach any copies of that correspondence.
In response, defendants note that some of the items sought were already produced with the initial disclosure (Docket No. 55, Defs. Atty. Affirm. ¶ 4). They also note that there was no prior request for the items sought, save the initial disclosure items already produced (id. ¶ 3). For the remaining items, defendants note the items that were being produced with that response (id. ¶ 4(1), (5), Ex. A), were produced previously (id. ¶ 4(3)), or are unknown to defendants (id. ¶ 4(6), (7)). They assert a privilege under the New York ...