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Nowlin v. Lusk

United States District Court, Second Circuit

January 28, 2014

KELLY LUSK, et al., Defendants.


HUGH B. SCOTT, Magistrate Judge.

Before the Court is a series of motions filed by plaintiff each seeking compelled discovery from the two main groups of defendants in this case, the Rochester defendants[1] and the Monroe County defendants[2]. These motions are a continuation of discovery motion practice by plaintiff to compel discovery. First, plaintiff sought initial disclosure (Docket Nos. 47 (motion to compel disclosure from Rochester defendants), 50 (motion to compel from Monroe County defendants), 51 (Order of June 12, 2013, terminating No. 50 due to stay of discovery), 53 (Order of June 19, 2013, compelling initial disclosure), 55 (motion to dissolve stay), 61 (Order of July 9, 2013, awarding discovery sanctions), 63 (motion for reconsideration of sanctions), 73 (Order of Aug. 16, 2013, of Chief Judge Skretny), 76 (Order of Aug. 20, 2013, lifting stay of discovery)). He later moved for discovery from defendants (Docket Nos. 87 (motion to compel Rochester defendants), 89 (Report & Rec. & Order of Oct. 2, 2013), 100 (plaintiff's Objections to the Report & Recommendation & Order), 95 (motion to compel Monroe County defendants), 97 (Order of Oct. 24, 2013, terminating motion due to letter application from Monroe County defense counsel), 98 (Order of Oct. 30, 2013)). Plaintiff now moves to compel fuller and complete answers and production of that discovery (Docket Nos. 108 (from Monroe County defendants), 115 (from Rochester defendants), 116 (to depose Rochester defendants)).

A constant theme in these motions (as with plaintiff's prior motions) is plaintiff's dissatisfaction with defendants' evasions, answers, and production he deems to be incomplete. Plaintiff contends that defendants' objections to production were baseless.

Also pending from the prior round of motions to compel is plaintiff's application for recovery of his costs for the last motion to compel from the Rochester defendants (see Docket No. 98, Order of Oct. 30, 2013, at 7, 8), but plaintiff did not submit a timely application to recover those costs.

As previously stated, familiarity with prior proceedings in this case is presumed.

Now before this Court is plaintiff's motion to compel production from the Monroe County defendants (Docket No. 108[3]). Plaintiff contends that the Monroe County defendants' Answers to Interrogatories (Docket Nos. 103-05) are incomplete (Docket No. 108). Responses to this motion were due by January 3, 2014, and any replies by January 13, 2014 (Docket No. 110). The Monroe County defendants requested additional time to respond after supplementing their responses (Docket No. 118; see also Docket Nos. 120-22 (supplemental Answers to Interrogatories), 124, Monroe County Def. Atty. Decl. ¶¶ 4-9, Ex. A; Docket No. 127 (plaintiff's letter of Jan. 6, 2014, responding to this request)), which was granted (Docket No. 119). Responses to plaintiff's motion then were due by January 13, 2014, with any reply due January 27, 2014 (id.). This Court then sought briefing from these defendants on the indemnification of defendant O'Flynn by Monroe County, with that response due by January 22, 2014 (Docket No. 126).

Next, plaintiff moved again to compel discovery from the Rochester defendants (Docket No. 115[4]). He separately moved to take the depositions of the individual Rochester defendants by telephone (Docket No. 116[5]). Responses to these Rochester motions were due January 13, 2014, with replies due January 27, 2014 (Docket No. 117).

Discovery deadlines under the current Scheduling Order (Docket No. 98) were held in abeyance during the pendency of these motions (Docket No. 117) and all motions were deemed submitted on January 27, 2014 (Docket No. 119).


This is a civil rights action commenced by plaintiff proceeding pro se while incarcerated. As previously detailed (see, e.g., Docket No. 98, Order of Oct. 30, 2013, at 2-4; Docket No. 89, Report & Rec. & Order, at 3-7 (and pleadings cited therein)), plaintiff alleges that defendants violated his rights by illegally stopping, searching, and arresting him on August 5, 2010, for soliciting a prostitute during a prostitution sting operation in the City of Rochester. Plaintiff claims that he was solicited by two Rochester Police Department officers posing undercover as prostitutes. During the booking process by the Monroe County Sheriff's Department, plaintiff claims that drugs were planted upon him and he was also charged (illegally) with possession of a controlled substance.

Present Motion Against the Monroe County Defendants

Plaintiff served Interrogatories upon the Monroe County defendants on or about September 9, 2013 (Docket Nos. 84, 85). These defendants filed their Answers (Docket Nos. 103-05; cf. Docket Nos. 120-22 (supplemental Answers to Interrogatories)) on November 15, 2013, after seeking (Docket No. 96) and receiving an extension of time to respond (Docket Nos. 97, 124, Monroe County Defs. Atty. Decl. ¶ 6, Ex. A). Plaintiff contends that the Monroe County defendants' discovery responses are evasive and incomplete (Docket No. 108). He faults these defendants for their belated request for an extension of time to respond to his discovery demands (Docket No. 108, Pl. Decl. ¶¶ 8, 13). Plaintiff recounts his repeated efforts to obtain discovery responses from these defendants (id. ¶¶ 4-7). When the Monroe County defendants did respond, plaintiff termed their answers evasive and incomplete, indicating their intentions not to answer his inquiries (id. ¶¶ 9-11, 14).

Since these defendants were not timely in their responses, plaintiff concludes that they waived any objections they may have (or have raised) to the discovery demands (Docket No. 108, Pl. Memo. at 1-2). As to the merits of those objections, plaintiff argues that defendants fail to state specifically (for example) where his demands or Interrogatories were not relevant or were vague, ambiguous, or overly broad (id. at 2-4, 5, 9-13)). Plaintiff defends his Interrogatories asking the personal assets of some of the defendants because he has claims against them in their personal as well as official capacities (id. at 4, 13).

Plaintiff objects that Sheriff O'Flynn and Pozzuolo did not sign and verify their respective Answers to Interrogatories (id. at 4, 13), although plaintiff did not include a copy of those Answers (cf. Docket Nos. 103-05) in his moving papers.

Aside from the common arguments raised by all defendants (and noted below as to the number of Interrogatories posed, the absence of good faith attempt by plaintiff to resolve these disputes short of motion practice, and seeking private and irrelevant information), the Monroe County defendants specifically object that their responses were timely, that plaintiff seeks privileged and attorney-client communications in trying to learn who participated in case preparation including responding to the Interrogatories (Docket No. 124, Monroe County Defs. Atty. Decl. ¶¶ 4-7, 33-39). They also object to answering Interrogatories regarding excessive force where no excessive force claim was lodged against them during plaintiff's detention; nor does the Complaint allege claims surrounding a detainee escaping so questions regarding this are not relevant (id. ¶ 44). They object to being overly burdensome to list every County unreasonable or excessive force and unlawful arrest claim lodged against them (id. ¶¶ 45-48).

In reply, plaintiff argues that these defendants did not respond initially within the 30 days required to respond to discovery and then defendants sought their extension (Docket No. 129, Pl. Decl. ¶¶ 5-8). He contends that the Monroe County defendants effectively abandoned this case because at least two attorneys were representing these defendants while the deadlines had passed, rejecting defense counsel's argument that she sought an extension due to being newly assigned to this case (id. ¶¶ 9-11). He also notes that even after these defendants purported to answer his Interrogatories, some of these were still not answered (id. ¶ 14) and their belated objections were waived (id. ¶¶ 15-16).

Present Motion Against the Rochester Defendants to Compel

Plaintiff also served Interrogatories upon the Rochester defendants (Docket Nos. 77-81). These defendants filed their Answers (Docket Nos. 111-14; see also Docket No. 123). In his motion to compel, plaintiff now objects that one defendant, Lusk, did not answer his Interrogatories (Docket No. 115, Pl. Decl. ¶¶ 12, 17; see also Docket No. 116, Pl. Decl. re Rochester Motion to Depose, ¶ 10 (objecting that Answers to Interrogatories were unsigned and were answered evasively and incompletely; but cf. Docket No. 123, Lusk Ans. to Interrogs.). After recounting briefly the history of the Rochester defendants' recalcitrance in responding to discovery (Docket No. 115, Pl. Decl. ¶¶ 6-7, 8-11), plaintiff finally received Answers to Interrogatories but he deemed them to be evasive and incomplete (id. ¶ 12).

The Rochester defendants raise the common objections and arguments to those raised by the Monroe County defendants (again, discussed below).

In reply, plaintiff notes the incomplete and evasive responses given by the Rochester defendants to his Interrogatories (Docket No. 129, Pl. Decl. ¶¶ 11-15), faults the Interrogatories for being signed only by counsel and not by the individual defendants questioned (id. ¶¶ 16-17). He notes that he received the defense response on January 21, 2014, and that it was thus untimely (id. ¶¶ 20, 22, Ex. A (certificate of service for Docket No. 125, with December 2013 dates and signed January 14, 2014)). Plaintiff's Motion to Depose Rochester Defendants

Given plaintiff's stated distrust of the Rochester defendants and their non-compliance with discovery demands and Orders, he seeks to depose individual defendants by oral examination over the telephone (Docket No. 116, Pl. Decl. ¶¶ 9, 6-7). He seeks to have the deposition recorded by audio recording (rather than by stenographic means) by an independent recording technician appointed by the Court without the recording be transcribed (id. ¶ 8). Plaintiff wants defense counsel to arrange the telephone conference call for these depositions, for the Court to determine who would administer the oaths, and to provide him with certified copies of the recordings (id.).

The Rochester defendants did not submit a timely response to this motion (cf. Docket No. 129, Pl. Decl. ¶ 18 (noting that ...

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