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Gambino v. Payne

United States District Court, W.D. New York

July 2, 2015

CAPTAIN PAYNE, et al., Defendants.


HUGH B. SCOTT, Magistrate Judge.

Before the Court is a series of motions: (a) from plaintiff proceeding pro se seeking to compel production (Docket Nos. 113, 121); (b) from plaintiff seeking leave to amend the Complaint (Docket No. 107); (c) from plaintiff seeking a protective Order (Docket No. 105); and (d) from defendants cross-moving to compel (Docket No. 111). Each motion had its briefing Schedules (Docket Nos. 106, 108, 112, 116, 119) but ultimately all motions were deemed submitted (without oral argument) on June 5, 2015 (Docket No. 116). Due to these motions, the deadlines of the current Scheduling Order (Docket No. 85) were held in abeyance pending resolution of these motions (Docket Nos. 112, 116; cf. Docket No. 106).

Separately, this Court denied plaintiff's apparent motion to compel responses to his state Freedom of Information Law requests to non-parties (Docket No. 124; cf. Docket No. 123).

Also pending are two sanctions motions filed by plaintiff (Docket Nos. 93, 126), asserting either fraud on the Court or perjury by defendants in not disclosing information about defendants and Niagara County Jail employees. Judge Arcara set a briefing schedule for the first motion (Docket No. 98; cf. Docket No. 95 (this Court's initial schedule, superseded by Judge Arcara's schedule)). This Court then set briefing for the second Motion (Docket No. 126; see Docket No. 128[1]) and it will be addressed in a separate Report & Recommendation (given the relief sought).


This is a civil rights action commenced by plaintiff, proceeding pro se as an inmate. On August 30, 2012, plaintiff filed his original Complaint (Docket No. 1), alleging that defendants exposed plaintiff's naked body in violation of his Jewish religious beliefs in modesty, that plaintiff endured corporal punishment and suffered sexual abuse while in Niagara County custody (Docket No. 11, Am. Compl). Plaintiff was in Niagara County's custody while awaiting disposition of his federal charges, see United States v. Gambino, No. 09CR372A. In 2012, when the incidents in this case allegedly occurred, plaintiff was awaiting sentencing, see id., Docket No. 605, sentencing adjourned to April 5, 2012; see also id., text minute entry Nov. 20, 2013, sentencing held. Plaintiff is currently in custody in a federal facility in Maryland but was formerly in McKean Federal Correctional Institution in Pennsylvania. According to the Court's docket, plaintiff relocated to Maryland on or about March 24, 2015.

This Court granted plaintiff's in forma pauperis motion on his initial Complaint (Docket No. 2), dismissing the First Claim and granting him leave to amend some of the remaining claims (Docket No. 6). Plaintiff then filed his Amended Complaint (Docket No. 11, asserting claims that survived this in forma pauperis review) and defendants answered (Docket Nos. 14, 58).

Among the various motions filed in this action, plaintiff moved for a preliminary injunction and to compel production (Docket Nos. 31, 32, 34, 33) while defendants cross-moved to compel execution of authorizations (Docket No. 41). This Court entered a Report & Recommendation (Docket No. 68, Dec. 24, 2014) which, pertinent to the pending motions, granted defendants' motion, giving plaintiff 45 days in which to execute them (id. at 9-10, 10). Defendants sought authorizations from plaintiff to access his Federal Bureau of Prisons records at McKean Federal Correctional Institution ("McKean"), which they claim were relevant to the sincerity of his religious beliefs (id. at 9). Although initially opposing the authorizations, plaintiff during oral argument stated that he had no objection to executing authorizations for his medical, mental health, and commissary records at McKean (id.). This Court found the materials sought in the authorizations to be relevant to this case, by establishing the sincerity of plaintiff's conversion to Judaism (id.). Judge Arcara adopted this Report (Docket No. 102, Order of Apr. 22, 2015).

Plaintiff's Motion for a Protective Order, Docket No. 105

First, plaintiff seeks a protective Order against production of "any and all" United States Department of Justice files and records (Docket No. 105, Pl. Motion ¶ 1). Defense sought an authorization from plaintiff to access these Justice Department files, but plaintiff contends that the information sought is sensitive and private and the request is overly broad (id. ¶¶ 2-3). Plaintiff contends that his federal criminal file was sealed and has no relevance to this civil action (id. ¶ 4). Plaintiff returned authorizations editing "any and all" to limit it to medical[2] records (id. ¶ 6).

Defendants respond and support their cross-motion to compel (discussed in detail below) (Docket No. 110). They note that this Court already granted their previous motion to compel plaintiff to execute authorizations and the "Certification of Identity" they now seek plaintiff to execute (without alteration) would facilitate obtaining the records already authorized by this Court (id. ¶¶ 22-24, 28). Defendants argue that plaintiff's concerns about this Certification of Identity are unfounded, that the Certification is required for the Federal Bureau of Prisons to produce the materials sought, since the Bureau views defendants' requests as Freedom of Information Act requests (id. ¶ 25). This Certification would not expand the authorizations already allowed in this case for plaintiff's federal prison medical and inmate records (id. ¶ 26). Defendants contend that they would not seek information about plaintiff's sealed criminal case (id. ¶ 27).

Plaintiff replies that he believes these authorizations will invade his attorney-client privilege and the sealed criminal prosecution, raising concerns that released information may endanger his family (Docket No. 120, Pl. Response at 1-2). He remains concerned that the authorizations and Certification's use of the phrase "any and all" broadens the disclosure beyond previous limits to now include (for example) plaintiff's Department of Justice file and not merely the McKean prison records (id. at 2-3), seeking an Order to modify or monitor the release of information pursuant to these authorizations (id. at 3). Plaintiff does not object to Court supervision of this discovery to avoid production of sensitive materials (id. at 4).

Plaintiff's Motion for Leave to Amend Complaint, Docket No. 107

Plaintiff identified a defendant referred to only as "Kitchen Cook" as Theresa L. Lewis and plaintiff seeks to amend the Complaint to formally allege claims against Lewis (Docket No. 107, Pl. Motion). Plaintiff also included with this motion Rule 27 notices of witnesses he intends to depose (id.). but, as defendants note (Docket No. 109, Defs. Atty. Decl. ¶¶ 17-19), Federal Rule of Civil Procedure 27 applies only to pre-action discovery, Fed.R.Civ.P. 27(a), or pending an appeal, id., R. 27(b).

Defendants oppose granting leave because it is untimely under the deadlines of the current Scheduling Orders (Docket No. 109, Defs. Atty. Decl. ¶¶ 8-11). They also argue that plaintiff failed to comply with this Court's Local Civil Rule 15(a), W.D.N.Y. Loc. Civ. R. 15(a), by not submitting an unsigned copy of his proposed Amended Complaint (id. ¶¶ 13-16). Defendants also object to plaintiff's Rule 27 disclosure of witnesses intended to be deposed since Rule 27 applies to pre-action discovery (id. ¶¶ 17-19).

In reply, plaintiff complains that defendants have not produced to him, including the names of unidentified defendants, hence leading to plaintiff's present (if tardy) motion for leave to amend once one name was learned (Docket No. 122, Pl. Response at 1-2). Plaintiff argues that defendants have stonewalled throughout this case, such as identifying and locating defendant Corey Lewis (id. at 2-3), in effect excusing his late motion. Plaintiff also recently learned the name of another defendant, an Officer Elliot, and will soon seek to serve this defendant (id. at 3). Next, plaintiff is unsure what the "unsigned copy of the proposal" means under our Local ...

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