BRANDON HOLMES, Pro se, 89-B-1812, Sing Sing Correctional Facility, Ossining, New York, ERIC T. SCHNEIDERMAN, Attorney General, State of New York, Attorney for Defendants.
DAVID J. SLEIGHT, Assistant New York Attorney General, of Counsel, Buffalo, NY,
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned on July 19, 2010, by Honorable William M. Skretny, for all pretrial proceedings. The matter is presently before the court on Defendants' motions to amend the Case Management Order (Doc. No. 55), filed February 12, 2012, and for relief from judgment or order (Doc. No. 62), filed April 8, 2013, as well as Plaintiff's motions to appoint counsel and to proceed in forma pauperis (Doc. No. 67), filed April 11, 2013, and to compel discovery (Doc. No. 72), filed May 6, 2013, and Plaintiff's request for reconsideration (Doc. No. 66), filed April 10, 2013.
BACKGROUND and FACTS
Plaintiff Brandon Holmes ("Plaintiff" or "Holmes"), currently incarcerated at Sing Sing Correctional Facility ("Sing Sing"), and proceeding pro se, commenced this § 1983 action on September 22, 2009, alleging violations of his federal civil rights and pendent New York common law claims based on events that occurred while Plaintiff was incarcerated at the Elmira Correctional Facility ("Elmira" or "ECF"), and Southport Correctional Facility ("Southport"). Defendants to this action are all current or former employees of New York State Department of Corrections and Community Supervision ("DOCCS"). On January 30, 2012, Plaintiff, with leave of the court, filed an amended complaint (Doc. No. 34) ("Amended Complaint"), asserting eight claims for relief challenging the conditions of his confinement, an alleged denial of medical treatment, repeatedly being subjected to non-random urinalysis testing, and alleged retaliation for exercising his civil rights. Defendants' answer to the Amended Complaint was filed February 9, 2012 (Doc. No. 36) ("Answer"). With regard to his claims challenging his repeated non-random urine tests as in violation of the Fourth Amendment, Plaintiff specifically alleges that despite having no history of drug use, Plaintiff was repeatedly subjected to such urinalysis on March 10, 2007, June 2007,  July 14, 2007, July 27, 2007, February 2, 2008, August 27, 2008, and November 18, 2008, "based upon suspicion'" Defendants attribute to "a reliable confidential informant'" who had advised DOCCS staff at the correctional facility that Plaintiff was using drugs. Amended Complaint, Facts ¶¶ 1-3, 15-16. According to Plaintiff, because DOCCS policy requires a DOCCS official at the rank of lieutenant or higher to approve each urinalysis request, where a urinalysis request is based on suspicion attributed to a confidential informant, unless the DOCCS official investigates and confirms the validity of the confidential informant's statement assertion regarding another inmate's abuse of drugs, it is essentially the confidential informant who submits the inmate for urinalysis testing. Amended Complaint ¶ 7. Plaintiff further maintains the urinalysis requests challenged here were "rubber stamped" by Wenderich, ECF Lieutenant Zigenfris ("Zigenfris"), and ECF Superintendent Mark Bradt ("Bradt"). Id. ¶¶ 23-29. It is undisputed that none of the urinalysis tests to which Plaintiff was subjected was positive. Plaintiff also alleges in further support of his claim that Defendants corroborated with Confidential Informants that on November 8, 2008, his cell was searched in connection with an anonymous death threat lodged by the confidential informants upon whose information the Form 2082s were based, resulting in the discovery of three packs of cigarettes in excess of the limit allowed under DOCCS policy, for which Plaintiff was issued a minor misbehavior report and placed in keep-lock confinement for six days. Amended Complaint ¶¶ 32-34.
In May 2011, Plaintiff served Defendants with a request for production of documents ("Discovery Demands"),  to which Defendants filed responses on July 5, 2011 (Doc. No. 21) ("Response to Discovery Demands"), and supplemental responses on November 21, 2011 (Doc. No. 27) ("Supplemental Response to Discovery Demands"). Plaintiff, asserting Defendants failed to include in their discovery responses the Requests for Urinalysis Test forms ("Form 2082s") related to all nonrandom urinalysis testing to which Plaintiff was subjected between July 2006 and July 2008,  the identity of the confidential informants who purportedly provided the information implicating Plaintiff in the use of illegal drugs, and information Plaintiff asserts is in the possession of New York's Inspector General's Office regarding death threats allegedly made against Plaintiff, filed a motion to compel discovery and for sanctions on April 4, 2012 (Doc. No. 38) ("Motion to Compel"), a motion for sanctions pursuant to Fed.R.Civ.P. 11 ("Rule 11"), on August 6, 2012 (Doc. No. 42) ("Motion for Sanctions"), and an addendum to his Motion to Compel, and for Sanctions on August 30, 2012 (Doc. No. 48) ("Plaintiff's Addendum").
On February 12, 2013, Defendants filed a motion amend the case management order (Doc. No. 55) ("Motion to Amend"), supported by the Declaration of Assistant Attorney General ("A.A.G.") David J. Sleight ("Sleight") (Doc. No. 56) ("Sleight's Declaration 2013 Motion to Amend"). On March 1, 2013, Plaintiff filed his Declaration in Opposition to Defendant's Declaration to Amend Case Management Order (Doc. No. 58) ("Plaintiff's Declaration - Motion to Amend"). On March 6, 2013, Defendants filed in further support of the Motion to Amend a Declaration of A.A.G. Sleight (Doc. No. 59) ("Sleight's Reply Declaration - Motion to Amend"). Without this court's permission, Plaintiff filed on March 15, 2013, the Affirmation in Opposition to Defendants' Declaration of March 6, 2013 Seeking CMO Extension (Doc. No. 60) ("Plaintiff's Sur-Reply Affirmation - Motion to Amend").
In a Decision and Order filed March 28, 2013 (Doc. No. 61) ("March 28, 2013, D&O"), the undersigned, inter alia, because Defendants were unable to produce the Form 2082s, some of which pertained to urinalysis testing of Plaintiff after he commenced this action, granted Plaintiff's motion to compel (1) ordering Defendants to either produce to Plaintiff, within ten days, an affidavit establishing Defendants are not in possession of, nor can obtain, requested information regarding death threats allegedly made against Plaintiff in November 2008, at Elmira, or produce the requested information, (2) sanctioning Defendants with an adverse inference regarding the spoliated Form 2082s, requested by Plaintiff, and (3) ordering Defendants either to produce to Plaintiff the identity of any informants who provided statements giving rise to the suspicion for any of the urinalysis tests to which Plaintiff was subjected, or an affidavit made by a DOCCS official with personal knowledge explaining that no such informants were involved. March 28, 2013, D&O at 14. On April 8, 2013, Defendants filed a Motion for Reconsideration of the March 28, 2013 D&O (Doc. No. 62) ("Defendants' Motion for Reconsideration"), supported by the Declaration of DOCCS Deputy Superintendent of Security at ECF Stephen J. Wenderlich (Doc. No. 63) ("Wenderlich's Declaration") with attached exhibits A through E ("Defendants' Exh(s). ___"). Unrelated to the Motion to Amend, Defendants also filed on April 8, 2013, the Declaration of A.A.G. Sleight (Doc. No. 64) ("Sleight Declaration"), in which Sleight explains that, as directed by the March 28, 2013 D&O, Defendants have provided Plaintiff with the Investigative Report from DOCCS Inspector General's Office ("IG Report") regarding the "death threats" allegedly made against Plaintiff in November 2008, attaching a copy of the IG Report as an exhibit. On April 10, 2013, Plaintiff filed the Affirmation in Support of Motion for Harsher Discovery Sanctions: Reconsideration Application (Doc. No. 66) ("Plaintiff's Request for Reconsideration").
On April 11, 2013, Plaintiff filed a Motion for Appointment of Counsel and to Proceed In Forma Pauperis (Doc. No. 67) ("Motion for Counsel"), supported by the attached Affidavit in Support of Motion to Proceed In Forma Pauperis and for Counsel Assignment ("Plaintiff's Affidavit - Motion for Counsel"), and an Affirmation in Opposition to Defendants' Declaration of March 6, 2013 Seeking CMO Extension (Doc. No. 68) ("Plaintiff's Further Sur-Reply Affirmation - Motion to Amend"). On April 18, 2013, Plaintiff filed a Declaration in Opposition to Defendants' Motion for FRCP 60(b) Relief and Plaintiff's Declaration for Discovery Sanctions and Recusal of Defense Counsel (Doc. No. 69) ("Plaintiff's Response - Defendants' Motion for Reconsideration").
By letter to the undersigned filed April 22, 2013 (Doc. No. 70) ("April 22 Letter"), Plaintiff submitted further arguments in opposition to Defendants' Motion for Reconsideration. On May 6, 2013, Plaintiff filed the Motion to Renew Discovery Motion Pursuant to FRCP 60(b) (Doc. No. 72) ("Second Motion to Compel"),  supported by the attached Verified Declaration in Support of Motion for FRCP 60(b) Relief ("Plaintiff's Declaration - Second Motion to Compel"), with exhibits 1 and 2 ("Plaintiff's Exh(s). ___").
On May 10, 2013, Defendants filed in further support of Defendants' Motion for Reconsideration the Declaration of A.A.G. Sleight (Doc. No. 73) ("Sleight's Reply Declaration - Defendants' Motion for Reconsideration"), and the Declaration of A.A.G. Kim S. Murphy ("Murphy") (Doc. No. 74) ("Murphy Declaration - Defendants' Motion for Reconsideration"). On June 4, 2013, Plaintiff filed the Additional Declaration in Opposition to Defendants' Opposition to Reconsideration (Doc. No. 75) ("Plaintiff's Additional Declaration - Defendants' Motion for Reconsideration"). Oral argument was deemed unnecessary.
Based on the following, Defendants' Motion to Amend is DENIED; Defendants' Motion for Reconsideration is DENIED; Plaintiff's Request for Reconsideration is DENIED; Plaintiff's Motion to Proceed In Forma Pauperis and for Appointment of Counsel is GRANTED; Plaintiff's Second Motion to Compel is GRANTED in part and DENIED in part.
1. Motion to ...