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Vigliotti v. Selsky

United States District Court, Second Circuit

July 3, 2013

DIRECTOR DONALD SELSKY, et al., Defendants.


JEREMIAH J. MCCARTHY, Magistrate Judge.

The parties have consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. §636(c) [29].[1] Before me is plaintiff Jack Vigliotti's motion to compel [103]. For the following reasons, plaintiff's motion is granted in part and denied in part.


Plaintiff commenced this action pro se on November 25, 2008 pursuant to 42 U.S.C. §1983, alleging that on September 12, 2005, while he was incarcerated at the Wende Correctional Facility ("Wende"), he was assaulted by defendant Correctional Officer Timothy Benson. Complaint [1], First Cause of Action. Plaintiff further alleges that certain due process violations occurred at his disciplinary hearing, which was conducted by defendant Captain Martin Kearney, arising from the incident. Id., Second Cause of Action. On October 18, 2005 Captain Kearney found plaintiff guilty of some of the charges against him and sentenced him to 180 days of confinement in the Special Housing Unit ("SHU") and 180 days loss of packages, television, commissary, and telephone. Id. at ¶21, p. 11. On December 7, 2005, defendant Donald Selsky, the Director of Special Housing, denied plaintiff's appeal and affirmed Captain Kearney's determination. Id. at ¶24, p.14.

Plaintiff argues that during the six months of SHU confinement he was transferred from Wende to Upstate Correctional Facility ("Upstate"). While in transit to Upstate, he was temporarily incarcerated at Auburn Correctional Facility ("Auburn"), where he attempted to commit suicide. Plaintiff's Memorandum of Law [130-5], pp. 4-5. When he returned to Auburn from the hospital, he was placed in a mental health cell where he was given only "a flimsy smock and a thin mat" Id. at p. 5. At Upstate he was again placed in a mental health cell until he was transferred to a mental health observation cell at Clinton Correctional Facility ("Clinton") with similar conditions. Id.

While plaintiff was proceeding pro se, he moved to compel certain discovery [34, 45]. While these motions were pending, I appointed Patrick McCarthy, Esq. to represent plaintiff [48]. The parties then advised me that all aspects of plaintiff's motion to compel, other than those seeking defendant Correction Officer Timothy Benson's medical records, were resolved by the parties [53]. I then granted plaintiff's motion for Benson's medical records in part and denied it in part. July 19, 2011 Decision and Order [55].

On October 13, 2011, I issued a Second Amended Case Management Order [67] requiring the completion of pretrial discovery by March 30, 2012. Id., ¶1. In January of 2012, Patrick Curran, Esq. was substituted for Mr. McCarthy as plaintiff's counsel [76]. Shortly thereafter, a Third Amended Case Management Order [79] was issued requiring the completion of pretrial discovery by April 30, 2012. Id., ¶1. That deadline was then extended four additional times ([84], [89], [92], [96]) resulting in the February 15, 2013 pretrial discovery deadline set forth my Seventh Amended Case Management Order ([99]).

One week before this deadline, plaintiff requested a conference to discuss his outstanding discovery requests. A conference was held on February 15, 2013, and at that time, I directed plaintiff to file a motion to compel by March 1, 2013, and indicated that "[i]t shall include an explanation of why this issue was not raised until shortly before the discovery deadline". February 15, 2013 Minute Entry and Order [102]. This motion ensued, which seeks to compel production of certain discovery within 30 days, or in the alternative, to preclude defendants from "presenting any evidence of their claim at that time of trial." Notice of Motion [103]. Plaintiff also seeks costs. Curran Affidavit [103], Wherefore Clause.


"Courts have wide discretion to manage discovery." Smith v. Haag, 2009 WL 3073976, *3 (W.D.N.Y. 2009) (Payson, M. J.). "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense". Fed.R.Civ.P. ("Rule") 26(b)(1). "[A]ctions alleging violations of §1983 require especially generous discovery." Cox v. McClellan , 174 F.R.D. 32, 34 (W.D.N.Y. 1997) (Feldman, M.J.).

With this standard in mind, I will address plaintiff's motion, which identifies the following fourteen items of discovery he is seeking:

"a) Misbehavior Reports/Unusual Incident Reports concerning our client's attempted suicide and barricading himself in his cell November 5, 2005;
b) Any tickets issued to Mr. Vigliotti and attachments or reports or follow-up documentation associated with them or with the alleged incident(s) that is the subject of any such ticket for the years of his incarceration;
c) All documents identifying Corrections Officers who escorted Mr. Vigliotti and other inmates from Nine Company, B-Block at the Wende Correctional Facility, ...

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