United States District Court, W.D. New York
QUINTIN A. NOWLIN, Plaintiff,
KELLY LUSK, et al., Defendants.
HUGH B. SCOTT, Magistrate Judge.
Before the Court is plaintiff's motion seeking various forms of relief (Docket No. 179). Pertinent to this Court (see Docket No. 182), plaintiff (now represented by counsel, see Docket Nos. 172, 178) moves for leave to serve additional Interrogatories and discovery demands and to compel defendants to produce materials related to his August 5, 2010, arrest (in particular Grand Jury materials) (Docket No. 179; see also Docket No. 184, Order of July 29, 2014, at 4 n.4).
Plaintiff also moved for reconsideration of the dismissal of individual defendants and his punitive damages claim (Docket No. 179). Since those claims were ultimately decided by Chief Judge Skretny (Docket Nos. 73 (Order on Monroe County defendants' motion for judgment on pleadings), 173 (Order on Rochester defendants' motion for judgment on pleadings); see also Docket Nos. 89 (Report & Recommendation regarding Rochester defendants' motion), 38 (Report regarding Monroe County defendants' motion)), this Court will only address the discovery relief now sought by plaintiff (Docket No. 182; see also Docket No. 184, Order of July 29, 2014, at 4 n.4). Separately, Chief Judge Skretny denied the reconsideration motion (Docket No. 184).
Responses to plaintiff's pending discovery motions were due by July 18, 2014, with replies due by July 25, 2014, and the motion deemed submitted as of the latter date (Docket No. 180).
This is a civil rights action, formerly commenced pro se by an incarcerated plaintiff, alleging violations of his constitutional rights in illegally stopping, searching, and arresting plaintiff on August 5, 2010, during a prostitution sting operation conducted in Rochester, New York (Docket No. 1, Compl.; see also, e.g., Docket No. 38, Report & Rec. of Jan. 30, 2013, at 2). He claims that he was solicited by two undercover Rochester police officers posing as prostitutes and that they entrapped him. During the booking following his arrest, he claims that Monroe County Sheriff's Department personnel planted drugs on him to allege a false drug possession charge.
Plaintiff filed his First Amended Complaint (Docket No. 8) and moved to proceed as a poor person (Docket No. 2), which was granted but with this Court dismissing certain claims and parties (Docket No. 9). Plaintiff later filed a (second) Amended Complaint (Docket No. 12), which defendants separately answered (Docket Nos. 14, Answer of Rochester Defs., 21, Answer of Monroe County Defs.). The Monroe County defendants moved for judgment on the pleadings (Docket No. 25) as later did the Rochester defendants (Docket No. 68). As discussed above, these motions were granted in part, denied in part by Chief Judge Skretny (Docket Nos. 73, 173). Plaintiff moved to amend the Complaint yet again to name certain Jane Doe and John Doe defendants (Docket No. 66) which was granted (Docket No. 89). The current amended Scheduling Order (Docket No. 177) has discovery concluded by September 30, 2014.
Plaintiff conducted the bulk of this case pro se as an inmate, including engaging in extensive motion practice to obtain discovery (see Docket No. 183, Pl. Atty. Reply Decl. ¶¶ 4-5, 7). Familiarity with these proceedings is presumed. He made a series of pro se motions to compel initial disclosure and discovery from defendants (e.g., Docket Nos. 47, 50, 55, 63, 70, 87, 161, 167, 169; see also, e.g., Docket No. 98, Order of Oct. 30, 2013, at 3-4) as well as for appointment of counsel (Docket Nos. 165, 166). Counsel was appointed for plaintiff (Docket No. 170) and the last round of motions to compel (Docket Nos. 167, 169) was terminated without prejudice to renewal (Docket No. 176). Plaintiff's counsel argues that defendants failed to respond to plaintiff's previous demands and Interrogatories (Docket No. 183, Pl. Atty. Reply Decl. ¶¶ 5, 8, 13, 15).
Plaintiff's Represented Motion to Compel
In addition to seeking reconsideration of dismissal of individual defendants and certain claims (not addressed in this Order), plaintiff seeks leave to serve additional Interrogatories and discovery demands since defendants had failed to fully provide previously requested material and, now with counsel, plaintiff seeks discovery that may lead to new information that may support his claims (Docket No. 179, Pl. Atty. Decl. ¶ 40; Docket No. 179, Pl. Memo. at 6th unnumbered page). With the appointment of counsel, plaintiff argues that he should be given a chance to serve refined Interrogatories and document requests than previously served pro se discovery (Docket No. 179, Pl. Memo. at 6th unnumbered page). If left to plaintiff's current discovery requests, he concludes it would lead to Court intervention to resolve issues of defendants' non-responsiveness (id.). Plaintiff did not submit his proposed new discovery demands or specify which defendants would be required to address the new discovery, but the new discovery would be focused and tailored to each defendant (id. at 6th to 7th unnumbered pages). The further discovery could be responded to within the current discovery deadline of September 30, 2014 (id. at 7th unnumbered page). He later claimed that his Interrogatories would not be cumulative to earlier requests (Docket No. 183, Pl. Atty. Reply Decl. ¶ 9).
He also seeks to compel defendants to produce all materials related to his arrest, investigation, and the Grand Jury hearing of the August 5, 2010, arrest (Docket No. 179, Pl. Atty. Decl. ¶ 41), arguing that plaintiff's need for the material in this action outweighs the secrecy and security normally accorded Grand Jury proceedings (id. ¶ 42). Under Douglas Oil Co. of California v. Petrol Stops Northwest , 441 U.S. 211, 222-23 (1979), a party may have access to Grand Jury testimony after showing the material must be necessary to stop injustice in another judicial proceeding; the need for disclosure must be greater than the need for secrecy; and the request is structured only to cover the materials needed (Docket No. 179, Pl. Memo. at 7th unnumbered page). As for the first prong, plaintiff argues that the Grand Jury testimony is central to his claim, since the Grand Jury did not indict him and the testimony from the officers before the Grand Jury directly relate to the events of August 5, 2010 (id. at 7th-8th unnumbered pages). As for the second prong, he contends that the discovery from defendants has been "bare bones, " hence the Grand Jury testimony is essential to vindicate his claims (id. at 8th unnumbered page). The Government (or defendants) have no need to protect the identity of Grand Jury witnesses, thus plaintiff concludes that the usual secrecy of Grand Jury proceedings is not necessary here (id.). As for the final prong, plaintiff would agree to in camera inspection of the Grand Jury materials and a limited production to him to preserve Grand Jury secrecy (id. at 9th unnumbered page), see In re John Doe, Inc. , 13 F.3d 633, 636 (2d Cir. 1994).
The Monroe County defendants respond that they complied with plaintiff's pro se Interrogatories and supplemented their answers (Docket No. 181, Monroe County Defs. Atty. Decl. ¶ 14). The Interrogatories submitted to date also exceed the total allowed under Federal Rule of Civil Procedure 33(a)(1) (unless otherwise stipulated or ordered by the Court, party may serve up to 25 Interrogatories including discrete subparts) (id. ¶ 15). They argued that plaintiff has not shown necessity for the additional Interrogatories (id. ¶ 16) and that the refinement proposed would produce cumulative information (id. ¶ 19).
After recounting the discovery history and whether the Monroe County defendants were required to produce when plaintiff first served and moved to compel (id. ¶¶ 22-27), these defendants responded that they have not been recalcitrant (id. ¶ 28). They note that the latest discovery demand was against the Rochester defendants only (id. ¶ 29; see Docket Nos. 136-40, Requests for Production to individual Rochester ...