The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the pro se plaintiff's second (cf. Docket No. 38; see also Docket No. 67, Order) motion to compel (Docket No. 122). Responses to this motion were due by July 14, 2011, and any reply was due by July 25, 2011, with this motion deemed submitted on July 25, 2011 (without oral argument). Defendants served their document production response (Docket No. 125), in part responsive to this motion, as well as formal responses to this motion (Docket Nos. 124, 132, 133).
Plaintiff next moved for discovery sanctions, including establishing facts (Docket No. 140) based upon the same arguments raised in his earlier motion to compel. Responses to this motion were due by September 15, 2011, which defendants filed (Docket No. 144), and plaintiff's reply was due on or before September 29, 2011 (Docket No. 141), and the motion was deemed submitted as of September 29, 2011.*fn1 This Order only considers the non-dispositive relief sought, cf. 28 U.S.C. § 636(b)(1)(A); Williams v. Beemiller, Inc., 527 F.3d 259, 264-66 (2d Cir. 2008); a separate Report & Recommendation considers plaintiff's request to have certain facts found against defendants as a discovery sanction.
There has been extensive motion practice in this action and familiarity with the prior Orders and Reports & Recommendations in this case (as cited below*fn2 ) is presumed.
This is a pro se civil rights action by an inmate, alleging that certain corrections officers applied excessive force against him, that the Commissioner of the New York State Department of Correctional Services ("DOCS") and the Superintendents of the Attica Correctional Facility ("Attica") allowed the assaults to occur by failing to act against these officers when other complaints or grievances were lodged against them (Docket Nos. 1, 17, 120). Plaintiff later moved to amend the Complaint a third time (Docket No. 116; cf. Docket Nos. 17, 108) to add as new defendants certain officials (known and unknown) in the New York State Department of Correctional Services' office of Inspector General, but that motion was denied (Docket No. 129).
Specifically, plaintiff alleges that defendant corrections officer Pritchard used excessive force against him during a pat down frisk conducted on May 4, 2008, at Attica (Docket No. 1, Compl.). Plaintiff then filed a grievance against Officer Pritchard. On June 3, 2008, Pritchard allegedly denied plaintiff access to the showers. Plaintiff complained about this to defendant Sergeant Marinaccio, but the sergeant ignored the complaint, instead telling Pritchard about it.
Given all the relevant events occurred under the prior name of the Department, that name, and its abbreviation "DOCS," will be used herein.
Plaintiff then alleges that 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. The officers then allegedly assaulted, kicked, and punched the prone plaintiff. (Id. at 3-4.) Plaintiff filed another grievance from the June 3 incident (id. at 4). Plaintiff claims that Pritchard made the grievance from the May 4 incident "disappear" but it was later found as filed (id. at 4-5). Plaintiff then was placed in the Special Housing Unit for nine months (id. at 5). Plaintiff alleges "abusive" use of force and retaliation in violation of his First, Eighth, and Fourteenth Amendment rights (id. at 5-6).
Plaintiff then amended this Complaint to allege claims against DOCS Commissioner Brian Fischer and Attica Superintendent James Conway (Docket No. 17). The new claim alleged that Pritchard was feared by inmates and civilians and was well known for abusing inmates (including raping inmates and stealing from them) (id. ¶ 20; see Docket No. 19, Pl. Motion ¶ 3). Plaintiff contends that Fischer and Conway knew about Pritchard and nevertheless allowed him to work at Attica Correctional Facility in deliberate disregard for the safety of inmates (Docket No. 17, Am. Compl. ¶ 21), including plaintiff.
After an initial round of discovery, including plaintiff's first motion to compel (Docket Nos. 38, 67) and discovery related to a then-pending defense summary judgment motion by defendants Conway and Fischer (see also Docket Nos. 81 (motion), 97 (Report & Recommendation recommending denying motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(d)), plaintiff moved to add "S. Khaharf" as a defendant, alleging that he had supervisory liability as acting Superintendent at the time several grievances were lodged against Pritchard (Docket No. 108). In response, defendants offered the correct name of the proposed defendant (Sibatu Khahifa) and stated that they have no objection to plaintiff amending the Complaint to assert claims against "Sibatu Khahifa," but reserved the right to move to dismiss this claim at a later time" (Docket No. 119, letter of Assistant Attorney General Kim Murphy to Chambers, May 3, 2011, filed by Court May 26, 2011). Absent objection from defendants, this motion was granted (Docket No. 117) and plaintiff timely filed his second Amended Complaint (Docket No. 120).
Plaintiff's Earlier Discovery Motions
Plaintiff initially moved to compel production (among other items) all grievances filed against the corrections officer defendants (Docket No. 38; see Docket No. 67, Order at 4). This motion was granted in part (on grounds not applicable to the present motion) and denied in part (regarding grievances and other matters not pertinent here) (Docket No. 67), with the requests for all grievances being found to be overbroad and burdensome (id. at 6).
Defendants then moved for summary judgment (Docket No. 81) to dismiss claims against Superintendent Conway and Commissioner Fischer. In response, plaintiff moved to further extend the discovery deadline (Docket No. 89), which was deemed to be his response to the summary judgment motion under Rule 56(d) (see Docket No. 91; Docket No. 96, Order at 1 & n.3; Docket No. 97, Report & Rec. at 1). Plaintiff argued that he needed discovery to show the constructive notice that Conway and Fischer had regarding officer Pritchard to make them liable for Pritchard's subsequent actions against plaintiff (Docket No. 89, Pl. Motion at 4, Pl. Memo. of Law ¶¶ 17, 18, 7-9; see Docket No. 96, Order at 7-9). Plaintiff's motion for extension was granted and limited discovery authorized, with defendants to produce grievances against Pritchard up to May 4, 2008 (the date of the original ...