United States District Court, W.D. New York
HUGH B. SCOTT, Magistrate Judge.
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 25). Before the Court are (A) defendants' motion (Docket No. 21) for summary judgment, supported by their Statement of Facts (Docket No. 22), a declaration by Alyson Romesser, an inmate grievance program supervisor at the Attica Correctional Facility ("Attica"), with exhibits (Docket No. 23, Decl., ¶ 1), and Memorandum of Law (Docket No. 24) and (B) plaintiff's cross motion to compel discovery and for appointment of counsel (Docket No. 30). For convenience and due to the interrelationship between these motions (otherwise considered separately in a Report and Recommendation and an Order) these motions will be considered together in this Report.
Responses to defendants' motion initially were due by July 22, 2014 (Docket No. 26), but plaintiff (an inmate proceeding pro se) responded that he needed 60 days to file a response (Docket No. 27). An extended brief schedule was ordered, with responses due October 31, 2014, and any reply due by November 7, 2014, and the motion submitted (without oral argument) on November 7, 2014 (Docket No. 29). Plaintiff also was given notice of the effects of his failure to file a response to this motion, see Irby v. New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001) (per curiam) (id.).
Plaintiff filed a timely response (Docket No. 30, Pl. Motion and Affirm., dated Oct. 30, 2014, filed Nov. 3, 2014, and docketed Nov. 7, 2014) and moved to compel discovery (id.) and for appointment of counsel (id., Pl. Affirm. ¶ 5). The parties were given until December 2, 2014, to respond to this motion and reply to it (and defendants' pending motion) by December 10, 2014 (Docket No. 31). Plaintiff also moved for an evidentiary hearing as to his discovery motion (Docket No. 30, Pl. Affirm. ¶ 3), but that request was denied (Docket No. 31).
Plaintiff was an inmate at Attica (Docket No. 22, Defs. Statement ¶ 1), where defendants Hale, Fitch, and Lambert were employed (id. ¶¶ 2-4). Plaintiff alleges that he is a member of the Crips gang and that he was targeted for assault by members of the Bloods gang inside Attica (id. ¶ 5). He alleges violations of his constitutional rights when he was targeted for assault by the Bloods but defendants failed to place him into protective custody (id.). Plaintiff alleges that he was assaulted by members of the Bloods on November 14, 2009 (id.; Docket No. 27, Pl. Aff. ¶ 2). Plaintiff filed an inmate grievance arising from this event (Docket No. 22, Defs. Statement ¶ 6). A search of Attica's Inmate Grievance Program records by Attica inmate grievance program supervisor Alyson Romesser, however, did not find a grievance filed by plaintiff for this incident (id. ¶¶ 8-19, 23). Romesser did not find record of any hearing or timely appeal from any grievance for this incident (id. ¶¶ 21-23; see generally Docket No. 23, Romesser Decl.).
Defendants now move for summary judgment (Docket No. 21), arguing that plaintiff failed to exhaust his administrative remedies (Docket No. 24, Defs. Memo. at 3, 5-8).
Plaintiff filed an affidavit, stating that he was diligently working on the case and requested an extension of time to respond, claiming that he was seeking sworn affidavits from witnesses (including locating his former wife) (Docket No. 27, Pl. Aff. ¶ 3). Plaintiff also was awaiting action by New York State court regarding his frozen inmate account (id.). He claims that he not only filed grievances, but also that he was interviewed by the Inspector General's office about this matter, seeking additional time to produce records from the Inspector General (id. ¶ 5).
Plaintiff (id.) was granted the 60-day extension he sought (Docket No. 29) and filed his response and motion for discovery (Docket No. 30) and his application for appointment of counsel (id.). There, plaintiff denies that he failed to exhaust his administrative remedies, claiming that he made five oral grievances and submitted several written grievances but claims that the facility mail room is run by relatives of the defendant corrections officers; hence it was impossible for him to file written grievances (Docket No. 30, Pl. Affirm. ¶ 10). He also argues that summary judgment is premature and that he has not had an opportunity to contact prospective witnesses and obtain affidavits (id. ¶¶ 1, 2). He claims that New York State Freedom of Information Law, N.Y. Pub. Officers Law § 87(2)(f), (g), and regulations, 9 N.Y.C.R.R. § 8000.5(c)(2)(i)(a)(3), preclude discovery (id. ¶ 2). Plaintiff argues that his assets remain frozen under the Son of Sam Law precluding his from retaining counsel (id.), seeking appointment of counsel if discovery or the legal issues appear to be complex and plaintiff becomes unable to address (id. ¶ 5).
As for his motion to compel, plaintiff contends that he has "met with Brick Walls'" in attempting to obtain documents (id. ¶ 3). He seeks documents produced as well as an "Evidentiary Hearing" on the subject of discovery (assuming that production may be voluminous and complex, requiring a "Plan & Schedule for Discovery") (id.). Plaintiff lists the categories of documents he seeks (id. ¶¶ 6, 7-8, 4), transcripts of his telephone calls from November 14, 2009; records, transcripts, or interview notes from conferences with the Inspector General's office; and all interdepartmental communication regarding Movement Orders, confidential Orders (for in camera inspection) and other withheld documents, offering to explain why each is relevant in the evidentiary hearing (id. ¶ 4). The November 14, 2009, telephone call between plaintiff's wife and prison officials is material because plaintiff's wife made those officials aware of the threats to plaintiff and his need to be placed in protective custody. (id. ¶ 7)
Treating his motion as a response under Rule 56(d), defendants respond that plaintiff has not filed a sufficient affidavit of his need for discovery to preclude summary judgment being entered in defendants' favor (Docket No. 32, Defs. Atty. Decl. ¶¶ 12-16). Specifically, defendants claim that plaintiff did not explain in his affirmation how he was to obtain the documents he needed to respond to the summary judgment motion (id. ¶ 14) or how they would show a genuine issue of material fact (id. ¶ 15). The documents plaintiff claims to need go to the substance of his failure to protect claim and do not address the grounds of defendants' motion, that plaintiff failed to exhaust his administrative remedies regarding the failure to protect claim (id.). Plaintiff also did not state his efforts to obtain these documents (id. ¶ 16) even if those items were somehow relevant to addressing defendants' motion. Defendants note that plaintiff had not served any document demands during the discovery period in this case (id.).
I. Applicable Standards
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), commands that no action shall be filed by a prisoner until such available administrative remedies are exhausted by the plaintiff (Docket No. 24, Defs. Memo. at ...