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Mashama Hill v. Paul Curcione et al

March 30, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott


This matter has been referred to the undersigned for further proceedings. Upon appeal of a judgment entered on behalf of all of the original defendants in this case, the Second Circuit held that "a genuine issue of material fact may exist as to the timeliness of Hill's appeal from the April 13, 2007 decision of the Grievance Coordinator." (Docket No. 80 at page 13). Subsequently, this Court issued a scheduling order allowing for discovery as to the timeliness issue and for the filing of motions. (Docket No. 82). The plaintiff served a request for discovery upon the defendants (Docket No. 83). The plaintiff then filed a motion to compel discovery on January 19, 2012 (Docket No. 84). The defendants filed a motion for summary judgment (Docket No. 86) and responded to the plaintiff's motion to compel (Docket No. 88). The plaintiff filed various replies with respect to the motion to compel (Docket No. 89 and 91).

With respect to the defendants' motion for summary judgment, the Court set a briefing schedule directing that the plaintiff respond to the motion for summary judgment by March 1, 2012. (Docket No. 87). In response to the defendants' motion for summary judgment, the plaintiff submitted a cross-motion for summary judgment dated February 27, 2012. Attached to the plaintiff's motion papers were approximately 80 pages of exhibits. (Docket No. 93).*fn1 On March 5, 2012, the plaintiff filed a notice to the Court stating that he is now in federal custody and that his papers relating to this case (and others) have been taken by the United States Marshal's Office. (Docket No. 90).*fn2

As an initial matter, as discussed below, the plaintiff has developed the practice of submitting one document to the Court that relates to more than one of his federal court cases (See Docket Nos. 90 and 92). This practice causes significant confusion and heightens the possibility that the plaintiff's filings will be misfiled. Moreover, such a practice is in violation of Rule 5.2(g) of the Local Rules for the Western District of New York, which states:

Where a pro se litigant has more than one action pending, any motion or other papers purporting to relate to more than one action will not be accepted for filing, except upon a finding of good cause. A motion or other papers shall be directed to the issues raised in one action only, and shall be filed only in that action.

Thus, the defendant is advised that each document he submits for filing with the Court must relate to a single case, not to multiple cases. The Clerk of the Court is directed to return, without filing, any papers submitted by the plaintiff which purport to relate to more than one civil action.

Motion to Compel

The plaintiff seeks to compel the defendants to produce responses to discovery demands he served upon the defendants on or about November 14, 2011, December 1, 2011 and December 16, 2011. (Docket No. 91 at page 2).*fn3

Lost Documents

It appears that much of the discovery sought by the plaintiff was previously provided to the plaintiff by the defendants. The plaintiff asserts that he no longer has that discovery due to the lapse in time and the fact that the documents he had relating to this case were taken from him when he was transported to a new facility by the United States Marshal. (Docket No. 89 at page 3). The United States Marshal has advised the Court that the documents referred to by the plaintiff were in a plastic bin and various plastic bags mixed together with other personal property of the plaintiff (including books, magazines, pictures and clothing), and that the volume of the property exceeded the amount allowable. Thus, the Court has been advised that the material was turned over to Karen Pittman, purportedly the plaintiff's girlfriend, with the knowledge of the plaintiff. This is consistent with the plaintiff's statement in his January 5, 2012 notice to the Court. (Docket No. 92). The Court has been advised that the United States Marshal has notified the plaintiff and Ms. Pittman that if she were to return the plaintiff's legal papers (but not the other excess personal property with which they were mixed) to the United States Marshal, the United States Marshal would return the legal papers to the plaintiff at the correctional facility at which he is residing. It is the plaintiff's responsibility to follow up on efforts to accomplish the return of papers from Ms. Pittman.

Disputed Discovery Requests

The plaintiff's initial motion to compel dated December 23, 2011 states that the defendants had not responded at all to his three discovery demands (Docket No. 84 at page 1). It appears that the defendants responded to the plaintiff's discovery demands on February 2, 2012. (Docket No. 88-1, Exhibits A-E). In his reply (Docket No. 91), the plaintiff identifies certain issues as being outstanding. For example, the plaintiff seeks the Niagara County Jail Use of Force Policy. (Docket No. 91 at page 4). The plaintiff acknowledges that this document was previously provided to him, but states that it was provided several years ago and he no longer has all of his legal papers. Thus, he asks that another copy be provided to him. (Docket No. 91 at page 4). In as much as this document had previously been produced to the plaintiff, and in the interests of expediting this matter, the defendants are directed to provide another copy to the plaintiff. Similarly, the plaintiff asks for a copy of the "policy for punitive segregation unit intake property searching and re-issuing" (Docket No. 91 at page 6). The defendants objected to this request for security reasons, but represented that they did previously produce certain responsive documents relating to this request to the plaintiff on August 19, 2008. (Docket No. 88-1 at page 24).

Again, in the interest of expediting this case, the defendants are directed to provide the plaintiff with another copy of the documents previously provided. Lastly, the plaintiff asks for copies of various medical records (relating to the plaintiff). (Docket No. 91 at pages 6-7). The defendants assert that the plaintiff has not executed a HIPPA release, and that in any event, all of the medical documents in the defendants' possession have been previously produced to the plaintiff. (Docket No. 88-1 at pages 14-15). The plaintiff is directed to provide the defendants with another executed HIPPA release form. Upon receiving the executed release form, the defendants shall provide the plaintiff with another copy of the medical records in their possession. It is noted that the plaintiff appears to seek medical records relating to as far back as 1998 and also records from his incarceration at the Fishkill Correctional Facility, the Attica Correctional Facility, as well as other correctional facilities and hospitals. (Docket No. 91 at page 7).

The defendants need only produce the documents in their possession, custody or control. Hill seeks a copy of the "hand-held video recording, & punitive segregation unit escort & [New York State Department of ...

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