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Barnes v. Alves

United States District Court, W.D. New York

March 20, 2014

JESSIE J. BARNES, 09-B-2707, Plaintiff,
v.
JOHN ALVES, et al., Defendants

Jessie J. Barnes, Plaintiff, Pro se, Malone, NY.

For Donald McIntosh, B. Potter, Angelo Mastrantonio, Gregory Hungerford, James Marshall, Randy Banks, Courtney Bennett, T. Berg, Carey Bubcaz, Thomas Dinninny, Franklin. Raub, Paul Weed, Defendants: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.

For D. Davis, Peter Mastrantonio, Jr., T. Murley, M. Vandegrift, H. Wetzel, Defendants: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.

Page 383

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

Before this Court are three motions filed by Plaintiff: Dockets 375 and 381, both seeking the production of documents; and Docket 381, seeking appointment of pro bono counsel. In his letter motions, Plaintiff complains that he has been denied access to the complete Inspector General report related to the September 4, 2002 incident at issue in this litigation. Plaintiff also contends that he is incapable of representing himself in preparation for or at the bench trial scheduled to commence on July 28, 2014.

INSPECTOR GENERAL REPORT

Plaintiff moves for production of a 100-page Inspector General report related to the September 4, 2002 incident (Doc. 375 & 381). For the reasons set forth below, Plaintiff's motion is granted.

On October 30, 2013, in connection with a prior motion filed by Plaintiff, Assistant Attorney General Gary M. Levine submitted a declaration in which he referenced a 100-page Inspector General report related to the September 4, 2002 incident (Doc. 363 at 5). Mr. Levine offered to make that document and others available to Plaintiff so long as he paid for the copying costs, but Plaintiff responded indicating he was unable to pay for those costs. The Court subsequently issued a Letter Order denying Plaintiff's request for additional discovery (Doc. 377).

Plaintiff's current motions to compel are related solely to the Inspector General report

Page 384

(Doc. 375 & 381). Plaintiff argues that he did not receive a complete copy of the Inspector General report as part of discovery, instead only receiving approximately five pages of the 100-page report (Doc. 375). Plaintiff appears to imply that he was not aware of the length of the Inspector General report and the incompleteness of the copy produced to him, until Mr. Levine filed his declaration in October 2013.

After Plaintiff filed the first motion to compel currently pending before the Court (Doc. 375), and prior to the transfer of this case to the undersigned, the Court issued a Text Order requiring any response to Plaintiff's motion to compel to be filed by February 18, 2014 (Doc. 378). Defendants did not file any response. Thereafter, the pending motions to compel were discussed at the video status conference conducted on March 10, 2014, and Mr. Levine submitted a letter response that same day (Doc. 385), wherein he responded to the present motions by relying upon Defendants' October 30, 2013 response to Plaintiff's prior motions. Defendants' October 30, 2013 response supports the notion that discovery has been repeatedly made available to Plaintiff throughout the course of this action. However, Defendants have not specifically addressed Plaintiff's argument that only five pages of the 100-page Inspector General report were produced as part of discovery in this action.

Given Plaintiff's claims that the information contained in the Inspector General report is critical to his case and that Defendants only produced five pages of the 100-page report, and the lack of any response by Defendants specifically addressing the discrepancy between the length of the Inspector General report and the five pages purportedly produced to Plaintiff, the Court finds that Defendants should provide a copy of the 100-page Inspector General report to ...


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