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Blond v. Bradt

United States District Court, W.D. New York

March 31, 2015

MARK W. BLOND, Plaintiff,

MARK W. BLOND, Pro Se, Auburn Correctional Facility, Auburn, New York.

ERIC T. SCHNEIDERMAN, New York Attlorney General, Attorney for Defendant, STEPHANIE JOY CALHOUN, Assistant Attorney General, of Counsel, Buffalo, New York.


LESLIE G. FOSCHIO, Magistrate Judge.

This case was assigned to the undersigned pursuant to this court's Standing Order, Amended Plan for the Disposition of Pro Se Cases, adopted and filed October 1, 1996, § I, ¶ C.5, for disposition of all non-dispositive pretrial matters. The matter is presently before the court on Plaintiff's motions for a protective order (Doc. No. 32), filed April 14, 2014, for leave to file an amended complaint (Doc. No. 37), filed May 6, 2014, and for appointment of counsel (Doc. No. 58), filed March 27, 2015.

Plaintiff Mark W. Blond ("Plaintiff"), commenced this civil rights action pursuant to 42 U.S.C. § 1983 on November 9, 2012, alleging Defendants, all employees of New York State Department of Corrections and Community Supervision ("DOCCS"), violated his constitutional rights under the Fourth, Fifth, and Eighth Amendments while in the custody of DOCCS and incarcerated in C-Block at Attica Correctional Facility ("Attica" or "the correctional facility"), in Attica, New York. Plaintiff particularly claims that on September 8, 2011, he was assaulted and threatened by Defendant Sergeant Leonard ("Leonard"), Correction Officer ("C.O.") Pritchard ("Pritchard"), and three John Doe C.O.s ("John Does"). Complaint ¶¶ 18-24. Following the assault, Plaintiff, despite submitting several sick call request slips, was denied medical treatment for the resulting injuries until September 13, 2011, when Plaintiff was permitted to go to sick call, from which Plaintiff was sent to Attica's emergency room for X-rays and dental care, and an appointment was scheduled for Plaintiff to be further examined in connection with his injuries at Erie County Medical Center ("ECMC"), in Buffalo, New York. Id. ¶¶ 25-27. Plaintiff was taken to ECMC on September 20, 2011, remaining there until September 23, 2011. Id. ¶ 31. Because one of the two C.O.s who accompanied Plaintiff to ECMC was working in C-Block when Plaintiff was assaulted on September 8, 2011, Plaintiff did not feel free to discuss the details of the assault with the ECMC medical staff. Id. ¶ 32. Upon returning from ECMC to Attica, Plaintiff maintains he was subjected to additional threats and intimidating behavior by the C.O.s. Id. ¶¶ 25-35.

Plaintiff attributes the assault to retaliation for writing three letters to the Federal Bureau of Investigation ("FBI"), Prison Corruption Unit, and various DOCS officials regarding an assault on another inmate, also housed on C-Block, Plaintiff witnessed between August 8 and 12, 2011. Complaint ¶¶ 12-17. Plaintiff maintains the letters were returned to him in a condition indicating the letters have been opened and read by prison officials. Id. ¶¶ 15-17. On September 2, 2011, Plaintiff wrote a letter to Defendant Superintendent Mark Bradt ("Bradt"), complaining about the asserted interference with his mail by prison officials, and Bradt advised the complaint had been referred to Defendant Captain Noeth ("Noeth"), to whom Plaintiff, on September 6, 2011, wrote a letter reiterating his complaint about interference with his mail and indicating he feared retaliation by the prison officials who read his letters to the FBI regarding the assault. Id. ¶¶ 16-17.

Protective Order

On April 14, 2014, Plaintiff moved (Doc. No. 32) ("Motion for Protective Order"), for a protective order directing that no C.O. be present in the examining room while Plaintiff is deposed by Defendants, asserting that the presence of any C.O. would result in his deposition being taken "in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses" Plaintiff, Motion for Protective Order at 1, such that "Plaintiff's testimony would not be as freely [given] as it would be without the presence of Corrections Officers... [and] would impede and frustrate the fair examination of the Plaintiff." Id. at 2. Defendants argue in opposition that matters of security in the taking of an inmate's deposition are "best left to DOCCS, which is specifically charged with this duty." Memorandum on Opposition to Plaintiff's Motion for a Protective Order (Doc. No. 38), at 4. Plaintiff has not argued in further support of this motion.[1]

"This Court has recognized that the Federal Rules of Civil Procedure do not preclude the mere presence of Corrections Officers at the plaintiff's deposition, despite [the fact] that this is a suit against other prison officials and guards.'" Rivera v. Jeziosky, 2007 WL 913990, at * 6 (W.D.N.Y. Mar. 23, 2007) (deferring to the "expertise" of DOCCS in determining the appropriate means of ensuring sufficient security during an inmate's deposition, and quoting Campbell v. Coughlin, 1992 WL 170697, at * 1 (W.D.N.Y. June 5, 1992)). Further, the events of which Plaintiff complains occurred at Attica, Plaintiff is now incarcerated at Auburn Correctional Facility ("Auburn"), in Auburn, New York, and Plaintiff has not alleged any factual basis establishing any connection between Auburn and the C.O.s at Attica supporting his assertion that the presence of a C.O. from Auburn would "impede and frustrate" Plaintiff's deposition. Rivera, 2007 WL 913990 at * 6. Plaintiff's Motion for a Protective Order is thus DENIED.

Leave to File Amended Complaint

Plaintiff moves for leave to file an amended complaint (Doc. No. 37) ("Motion to Amend"), attaching a copy of the proposed amended complaint (Doc. No. 37-1) ("Proposed Amended Complaint"). Defendants argue the motion should be denied, at least in part, as futile. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Leave to File an Amended Complaint (Doc. No. 47) ("Defendants' Memorandum at 2). In further support of the motion, Plaintiff argues Defendants have failed to demonstrate the requisite "good reason" for denying Plaintiff's Motion to Amend. Plaintiff's Memorandum of Law in Response to Defendants' Motion in Opposition for Leave to Amend the Plaintiff's Complaint (Doc. No. 50-1) ("Plaintiff's Reply"), [2] at 1-2.

Under Fed.R.Civ.P. 15(a), leave to amend "shall be freely given when justice so requires." Foman v. Davis, 371 U.S. 178, 182 (1962); Burns v. Imagine Films Entertainment, Inc., 165 F.R.D. 381, 384 (W.D.N.Y. 1996) (quoting Fed.R.Civ.P. 15(a)). Therefore, "an amended pleading may be filed pursuant to Rule 15(a) where the new allegations do not unduly prejudice an opponent, are not the result of undue delay or bad faith, and are not futile." Warren v. Goord, 2006 WL 1582385, at * 7 (W.D.N.Y. May 26, 2006). Further, "[a]n amendment to a pleading is futile if it could not withstand a motion to dismiss under Rule 12(b)(6)." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).

Preliminarily, the court observes that the Proposed Amended Complaint is largely identical to the Complaint and, as Plaintiff asserts, Plaintiff's Memorandum at 1, cures some deficiencies found in the original Complaint. Nevertheless, the court's review of the Proposed Amended Complaint establishes the futility of certain claims contained therein.

Defendants argue, Defendant's Memorandum at 4, the Proposed Amended Complaint fails to allege the requisite personal involvement by Defendant Noeth in the alleged constitutional deprivations. The only allegation against Noeth is that on September 6, 2011, after being advised that Bradt had assigned Noeth to investigate Plaintiff's complaints regarding the reading of Plaintiff's mail, Plaintiff wrote to Noeth, informing Noeth of the same complaints about ...

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