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Berman v. Durkin

United States District Court, N.D. New York

April 25, 2014

BARRY BERMAN, Plaintiff,
CHARLES DURKIN, et al., Defendants.


RANDOLPH F. TREECE, Magistrate Judge.

On or about December 9, 2013, pro se Plaintiff Berman filed several Motions seeking, inter alia, to amend/correct his Amended Complaint, a preliminary injunction/TRO, to compel discovery, and an appointment of counsel. See Dkt. Nos. 49, 50, 51, 52, 53, 54, & 55.[1] Defendants filed an Omnibus Memorandum of Law in opposition to Berman's Motions to Amend, for Preliminary Injunction, and to Compel. Dkt. No. 56. Shortly after Defendants filed their Opposition to Berman's Motions, Berman filed a Motion withdrawing his Motions for a Preliminary Injunction and to amend his Amended Complaint, while noting that he will continue to prosecute his Motion to Compel. Dkt. No. 59, Pl.'s Lt., dated Jan. 3, 2014. The Court granted this relief. Dkt. No. 60, Text Order, dated Jan. 6, 2014.

Notwithstanding that his Motion to Compel was pending, Berman filed yet another document, which the Court has construed to be an additional Motion to Compel that materially subsumes the originally filed Motion to Compel, as well as requests permission for non-stenographic depositions of certain Defendants. Dkt. No. 65, Pl.'s Second Mot. to Compel, dated Jan. 27, 2014.[2] Considering that Berman's latest filing is deemed a Motion to Compel, Defendants responded thereto with a Letter-Brief. Dkt. No. 72, Defs.' Lt.-Br., dated Mar. 6, 2014. A week later, Berman filed a Reply to Defendants' Opposition. Dkt. No. 73, Pl.'s Reply Lt.-Br., dated Mar. 11, 2014. Because Berman's January 27, 2014 Motion to Compel is easier to follow with regard to what he seeks to compel, the Court will seamlessly conform to his format when ruling.


In order to aptly determine the scope of discovery, the reasonableness of Berman's Demands, and the adequacy of Defendants' Responses, the Court must consider the nature of Berman's Amended Complaint. Dkt. No. 15, Am. Compl. Berman's Amended Complaint covers a series of events and an array of causes of action. Berman alleges, inter alia, that Defendants subjected him to excessive force on more than one occasion, failed to protect him from this excessive force, retaliated against him for filing grievances, and were deliberately indifferent to his serious medical needs, all in violation of his constitutional rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. See generally id. Berman alleges that all of these constitutional violations also violated Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act. Id.

In a rather prolix Amended Complaint, Berman accuses Defendants Durkin, Mitchell, Devereux, and others of assaulting him on May 27 and June 13, 2010. Additionally Defendant Devereaux is alleged to have failed to intervene and stop the beating that occurred on May 27, 2013. Id. at ¶ 66. Berman complains that he was denied food from May 27 to June 1. He also alleges that Defendants Durkin and Mitchell violated his First Amendment rights when, in retaliation for filing grievances, they beat him on June 13, 2010. Id. at ¶ 67. Berman complains that Defendants LaValley and Lozier failed to protect him and improperly managed or supervise their subordinates, thereby creating the unconstitutional conditions and events. Id. at ¶ 59. Berman asserts that Defendants Longerman, Inspector General for the Department of Corrections and Community Supervision (DOCCS), was deliberately indifferent when Longerman negligently conducted an inspection of both the May 27 and June 13 events. Id. at ¶ 61. And, because he suffers from a mental illness, all of the alleged conduct violated the ADA and the Rehabilitation Act. Lastly, Berman alleges at considerable length that Defendant Doctors Ramineni, Mannava, and Koeningsmann violated his Eighth Amendment Rights by being medically indifferent to his multiple, chronic and serious medical needs that extended over a elongated period of time. Id. at ¶¶ 70-104.

Berman advises that he served First and Second Discovery Requests to which Defendants have either failed or inadequately responded to. See Dkt. No. 52-1 & 65. Conversely, Defendants aver that they sent 584 pages of records to the Mid-State Correctional Facility (Mid-State) Office of Inmate Records Coordinator (IRC) so that Berman could review the records and determine which documents he would like to retain. Dkt. No. 56-2, Kristen M. Quaresimo, Esq., Decl., dated Dec. 27, 2013, at ¶¶ 4-5. Apparently, Berman has reviewed these documents. Id. at ¶ 7. Notwithstanding the disclosure of hundreds of documents, Defendants had not formally responded to Berman's Demands, even though they found many of the discovery demands objectionable for various reasons. Id. at ¶¶ 8 & 10. Instead, Defendants' Counsel avers that she relied upon providing Berman with all of the materials within her possession that were required by the mandatory disclosure order. Id. at ¶ 11.[3] Subsequently, Defendants served their Responses to Berman's First and Second Demands for Discovery, raising various legal objections. Dkt. Nos. 64, Defs.' Lt., dated Jan. 13, 2014; 72-1, Kristen M. Quaresimo Decl., dated Mar. 6, 2014, at ¶ 8. Apparently the service of Defendants' Responses prompted Berman to file Objections, which, as noted above, this Court has construed as another Motion to Compel. See Dkt. No. 65. And, in turn, Defendants timely responded to Berman's Objections. Dkt. No. 72.


As stated above, the Court is following the sequence of issues set in Berman's Second Motion to Compel, and rules as follows:

A. Berman's First Demand for Discovery

1. Berman seeks any and all grievances and complaints filed against Defendants Mitchell, Durkin, and Devereaux. Defendants object on the grounds that the request is not reasonably calculated to lead to admissible evidence and also seeks confidential information.

First, other inmate's records, reports, grievances, and complaints are deemed confidential, especially as to disclosure to other inmates. Second, records regarding correctional officers are entitled to confidentiality protection. However, such complaints, grievances, and the like may have relevant information. Such documents are usually found within the correctional officers' files. Accordingly, the Court directs Defendants to provide this Court with the personnel files of Mitchell, Durkin, and Devereaux so that an in camera review may be conducted to determine the presence of relevant information.

2 & 3. Berman seeks grievances and complaints filed with the Inspector General about the Defendants and any complaints filed with DOCCS regarding mistreatment of inmates in the APPU. Defendant claims that these grievances and complaints are confidential for security reasons.

Again, Defendant's objection would hold true because such records would not be shared with another inmate for security reasons. But, Berman alleges that Defendants LaValley and Lozier allowed, permitted, condoned, and failed to correct constitutional violations that occurred at their facility to which Berman was similarly a victim. These allegations may state a violation under 42 U.S.C. § 1983 and conceivably could establish the personal involvement of these Defendants. If Berman had an attorney, such records would, in all likelihood, be produced. Without access to these records, if they exist, Berman would not be able to demonstrate that LaValley and Lozier allowed such constitutional violations to be perpetuated at this correctional facility. The Court grants Berman an opportunity to inspect those grievances and complaints that deal with excessive force for the two-year period of 2009 and 2010. Defendants shall redact the identities of inmates, inmate numbers, and names of correction officers.

4. Defendants aver that use of force and/or unusual incident reports for the May 27 and June 13 incidents do not exist. See Dkt. No. 72-2, Tammy Irwin Decl., dated Mar. 4, 2014, at ¶ 3. Accordingly, Defendants' Response stands.

5. Defendants advise that they provided Berman with an unredacted APPU Log book entry for May 27, 2010. Berman should be able to use this list to identify any John Does Defendants. Policies, directives and/or instructions that are shared with the staff are irrelevant. Accordingly, Defendants' Response stands.

7. With the Log Book, Berman should be able to identify any John Doe Defendants. Yet, Defendants advise that they provided Berman with the names of the sergeants assigned to APPU on or about the time of the May 27, 2010 incident. Said Response is adequate. ...

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