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Mark Nunez, et al v. City of New York

May 17, 2013


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


This is a prisoners' civil rights case in which twelve present and former inmates allege that they were subjected to a pattern and practice of excessive force by employees of the New York Department of Correction ("DOC") in violation of the Constitution and federal and state law. The plaintiffs seek declaratory and injunctive relief on a classwide basis*fn1 as well as damages for their individual injuries. Both parties seek to compel certain discovery from the other.


A. Factual Background This is the sixth federal class action brought against the City of New York ("City") in twenty-five years that alleges the use of excessive force in jails operated by the DOC. (Second Amended Complaint ("2d Am. Compl."), ¶¶ 1-3, 5); see Ingles v. Toro, No. 01 Civ. 827 (S.D.N.Y.) (use of excessive force in all DOC jails); Sheppard v. Phoenix, No. 91 Civ. 4148; Jackson v. Montemango, No. 85 CV 2384 (E.D.N.Y.) (use of excessive force in Brooklyn House of Detention); Reynolds v. Ward, No. 81 Civ. 101 (S.D.N.Y.) (use of excessive force in Bellevue Prison Psychiatric Ward); Fisher v. Koehler, No. 83 Civ. 2128 (S.D.N.Y.) (use of excessive force in Correction Institution for Men, now known as Eric M. Taylor Center). The plaintiffs contend that the orders and settlement agreements entered into in those prior lawsuits no longer protect DOC inmates against the use of unnecessary and excessive force beyond the confines of EMTC and the hospital prison wards. (2d Am. Compl., ¶ 4). They claim that the DOC jails "remain afflicted by the same culture of violence, the same failure of accountability, and the same deliberate indifference and active acceptance" of the use of unnecessary and excessive force, and that "[c]onditions in the jails have deteriorated markedly." (2d Am. Compl., ¶ 5).

The defendants include uniformed correction officers, supervisory staff, wardens of several DOC facilities, high-ranking officials at DOC, and the City. (2d Am. Compl., ¶¶ 10-28).

The complaint alleges that despite training DOC staff supposedly receives and despite the placement of video cameras in some parts of the DOC jails, DOC correction officers continue to use unnecessary and excessive force, often in unmonitored areas. (2d Am. Compl., ¶¶ 5, 30-31, 62-65, 69-70, 74, 78-83, 90-98, 105-108, 114-115, 118, 123-125, 131-132, 137-140, 146-149, 154-157, 162-165). DOC captains are alleged to have ordered, participated, or otherwise witnessed these incidents and taken no steps to prevent injuries to the inmates. (2d Am. Compl., ¶¶ 36, 67, 69, 76, 83, 93, 103, 112, 118, 121, 128, 139-140, 144, 157, 160, 171).

As a result of these incidents, inmates have suffered from a range of injuries, many of which required emergency medical care or hospitalization and resulted in severe and permanent injury. (2d Am. Compl., ¶ 32). Individual plaintiffs have suffered physical injuries, such as multiple fractured ribs, pleural effusion, and traumatic hemothorax; orbital fracture requiring surgery; perforation of the tympanic membrane causing diminished hearing and tinnitus; acute mandibular fracture requiring the jaw to be wired shut for three months; fractured bones including the wrist, jaw, and nose; nerve damage; facial laceration requiring stitches; and severe concussion causing permanent neurological damage. (2d Am. Compl., ¶¶ 32, 71-73, 84-86, 99-100, 109-100, 110, 116, 119, 126, 133, 150, 159, 166). They also continue to suffer emotional injuries, such as flashbacks, nightmares, cold sweats, anxiety, depression, insomnia, and post-traumatic stress disorder. (2d Am. Compl., ¶¶ 66, 87, 101, 126, 134, 143, 151, 159, 169).

Further, DOC staff purportedly falsify documents or fabricate claims against the inmates in order to cover up these incidents (2d Am. Compl., ¶¶ 33-36, 95, 102, 111, 117, 120, 127, 140-142, 157-158, 170), and the investigations conducted by DOC are allegedly unreliable, "crediting the most outlandish staff accounts and attributing blame to, and punishing, the victims of assaults rather than the perpetrators." (2d Am. Compl., ¶¶ 5, 35).

The plaintiffs contend that the supervisory defendants and high ranking DOC officials know about this pattern and practice of the use of excessive force in DOC facilities and the sham investigations, yet fail to curb such practices, and instead, perpetuate such conduct. (2d Am. Compl., ¶¶ 37, 40-46, 51, 54). Moreover, the plaintiffs allege that "the worst violators" of DOC's use of force policy are not disciplined or fired but, in some cases, are promoted. (2d Am. Compl., ¶¶ 5, 39, 50).

B. Procedural History On August 18, 2011, plaintiff Mark Nunez filed a pro se complaint, alleging the use of excessive force at a DOC facility. The First Amended Complaint was filed by counsel on May 24, 2012, asserting, among other things, class and individual claims against the City as well as staff, supervisory personnel, and high ranking officials at the DOC, alleging a pattern or practice of the use of excessive force and deliberate indifference to this pattern. On September 4, 2012, the Second Amended Complaint was filed. A class was certified by stipulation and order on January 7, 2013.

On September 6, 2012, the plaintiffs served their first set of document requests relating to class certification, and each named plaintiff served an individual discovery request. (Letter of Katie Rosenfeld and Vasudha Talla dated March 22, 2013 ("Pl. March 22 Letter") at 1). On December 21, 2012, the defendants served their first set of interrogatories and document requests. (Defendants' First Set of Interrogatories and Request for Production of Documents to Plaintiffs ("Def. 1st Interrog. and Doc. Req."), attached as Exh. A to Letter of Arthur G. Larkin dated March 22, 2013 ("Def. March 22 Letter")). The plaintiffs served a second set of document requests related to their class allegations on February 7, 2013. (Pl. March 22 Letter at 1).

The plaintiffs and defendants have filed letter applications seeking to compel the other party to respond to their discovery requests, and a status conference was held before me on April 18, 2013. Currently, there remain numerous outstanding discovery disputes. (List of Outstanding Discovery Disputes ("List of Disputes"), attached as Exh. A to Letter of Katherine R. Rosenfeld and Vasudha Talla dated May 2, 2013 ("Pl. May 2 Letter")). I will address each in turn.


A. Legal Standard Generally, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). "Although not unlimited, relevance, for purposes of discovery, is an extremely broad concept." Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (relevance is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case"). Indeed, "the 'right of litigants to discover and present relevant evidence in civil litigation is given great weight in federal courts.'" Mays v. Town of Hempstead, No. 10 CV 3998, 2011 WL 4345164, at *2 (E.D.N.Y. Sept. 15, 2011) (quoting Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 82 (E.D.N.Y. 1975)). Moreover "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The burden of demonstrating relevance is on the party seeking discovery. See, e.g., Mandell v. Maxon Co., No. 06 Civ. 460, 2007 WL 3022552, at *1 (S.D.N.Y. Oct. 16, 2007).

"Once relevance has been shown, it is up to the responding party to justify curtailing discovery." Fireman's Fund Insurance Co. v. Great American Insurance Co. of New York, 284 F.R.D. 132, 134 (S.D.N.Y. 2012) (internal quotation marks omitted). "[T]he court must limit the frequency or extent of discovery" where:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C). "General and conclusory objections as to relevance, overbreadth, or burden are insufficient to exclude discovery of requested information." Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003). Rather, "[a] party resisting discovery has the burden of showing 'specifically how, despite the broad and liberal construction afforded the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive, . . . submitting affidavits or offering evidence revealing the nature of the burden.'" Vidal v. Metro-North Commuter Railroad Co., Civil No. 3:12CV248, 2003 WL 1310504, at *1

(D. Conn. March 28, 2013) (alteration in original) (quoting Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum ...

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