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Nowlin v. Jane Doe Female Rochester New York Police Officers

United States District Court, Second Circuit

July 29, 2013



HUGH B. SCOTT, Magistrate Judge.

Before the Court is plaintiff's motion[1] to "dissolve" an Order staying discovery as to certain defendants, the Monroe County defendants[2], in this action (Docket No. 55). Familiarity with the proceedings in this action is presumed. Responses to this motion were due by July 8, 2013 (Docket No. 58), but the Monroe County defendants responded on July 1, 2013 (Docket No. 59). Plaintiff's reply was due by July 19, 2013, and the motion was deemed submitted (without oral argument) on July 19, 2013 (Docket No. 58). Plaintiff filed a timely reply (Docket No. 62, dated July 16, 2013, received July 22, 2013).

Meanwhile, plaintiff also moved to compel production from the Rochester defendants (Docket No. 47), which this Court granted (Docket No. 53; see also Docket No. 61, awarding plaintiff recovery of his motion expenses). Plaintiff now moves for reconsideration of the Order granting his discovery relief (Docket No. 63), seeking additional sanctions of entry of default, evidence preclusion, and award of $1, 000 damages for emotional distress in failing to produce (id.). That motion will be considered separately.


This is a pro se civil rights action commenced by an incarcerated plaintiff. Plaintiff alleges that defendants (the City of Rochester, its police officers, Monroe County, and Monroe County Sheriff's deputies) violated plaintiff's constitutional rights in illegally stopping, searching, and arresting plaintiff on August 5, 2010, in a prostitution sting operation (Docket No. 1, Compl.; see also Docket No. 38, Report & Rec., at 2). Plaintiff filed his Complaint on August 25, 2011 (Docket No. 1, Compl.), and then filed a series of Amended Complaints (Docket No. 8, Am. Compl., filed Jan. 4, 2012; Docket No. 12, [2d] Am. Compl., filed May 31, 2012; see Docket No. 13 (Order authorizing service of Second Amended Complaint)). According to the latest amended pleading (Docket No. 12, [2d] Am. Compl.), plaintiff claims that he was solicited by two unnamed Rochester Police Department officers, posing as prostitutes in an undercover sting operation (Docket No. 12, [2d] Am. Compl. ¶¶ 13-21). Plaintiff was pulled over by another defendant Rochester Police officer, searched and arrested for solicitation of a prostitute (id. ¶¶ 22-25). Plaintiff alleges violation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments, as well as under the New York State Constitution, seeking damages (id., [2d] Am. Compl. at 11). (See also Docket No. 38, Report & Rec. at 2-3.)

Plaintiff filed an Amended Complaint (Docket No. 8) and then moved for leave to proceed as a poor person (Docket No. 2), which was granted, with this Court dismissing claims against certain other parties (Docket No. 9). The Rochester defendants (Docket No. 14) and the Monroe County defendants (Docket No. 21) separately answered the (second) Amended Complaint (Docket No. 12). This Court then issued a Scheduling Order which had initial Rule 26(a) disclosure due by October 23, 2012, and discovery due to be completed by February 22, 2013 (Docket No. 22).

Monroe County Defendants' Motions for Judgment and to Stay Discovery

The initial Scheduling Order also had initial dispositive motions due by October 9, 2012 (id.). The Monroe County defendants then filed their timely motion for judgment on the pleadings (Docket No. 25) to dismiss the case as to them. They also moved for a stay of discovery (Docket No. 29 (motion)) which was granted (Docket No. 30 (Order; see Docket No. 38, Report & Rec. at 3). Objections by plaintiff (Docket No. 39) are pending (see Docket Nos. 40 (Order setting briefing schedule for plaintiff's Objections), 41 (response from Rochester defendants), 42 (plaintiff's Reply)). As previously noted (Docket No. 51, Order of June 12, 2013), the stay of discovery for the Monroe County defendants has not been lifted.

The Report & Recommendation on the Monroe County defendants' motion also amended the Scheduling Order (cf. Docket No. 22), with initial Rule 26(a) disclosure due by May 14, 2013, full discovery completed by June 28, 2013 (Docket No. 38, Report & Rec. at 8). Anticipating a motion to compel, plaintiff next moved to extend the discovery deadlines in the amended schedule (Docket No. 45); that request was granted (Docket No. 46). Currently, discovery is to be completed by August 12, 2013 (Docket No. 46).

Plaintiff's Motion to "Dissolve" the Stay Order

Plaintiff then moved to compel a fuller production from the Monroe County defendants (Docket No. 50), but this motion was terminated due to the pending stay of discovery from these defendants (Docket No. 51). He separately moved to compel discovery from the Rochester defendants (Docket No. 47), which was granted (Docket No. 53), Nowlin v. 2 Jane Doe Female Rochester, New York Police Officers, et al., No. 11CV712, 2013 U.S. Dist. LEXIS 86184 (W.D.N.Y. June 19, 2013) (Scott, Mag. J.), in part because the stay did not apply to the Rochester defendants.

Plaintiff now claims that he cannot prosecute his claims because of the stay of discovery from the Monroe County defendants (Docket No. 55, Pl. Notice and Motion, at 1). He moves, pursuant to Federal Rule of Civil Procedure 23(d)(1) to "dissolve" the stay Order (id.), although this action was never alleged as a class action (see Docket No. 59, Monroe County Defs. Atty. Decl. ¶ 13). Pending determination of his Objections to the Report & Recommendation and in the event Chief Judge Skretny does not adopt the Report, plaintiff moves to "dissolve" the stay Order (Docket No. 55, Pl. Decl. ¶ 12). The Monroe County defendants respond that the Objections to the Report are still pending and that the stay of discovery as to them should remain (Docket No. 59, Monroe County Defs. Atty. Decl. ¶ 12).

In his timely reply, see, e.g., Houston v. Lack , 487 U.S. 266, 271 (1988) (prison mailbox rule), plaintiff argues that the Monroe County defendants' letter should not have been treated as a motion to grant the stay because the letter was not a formal notice of motion required by this Court's Local Civil Rule 7(a)(1) (Docket No. 62, Pl. Reply ¶¶ 10-12). He contends that the stay was not due to the Report & Recommendation, countering Monroe County defendants' argument (id. ¶¶ 14, ...

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