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Henry v. Liberty

United States District Court, N.D. New York

February 16, 2017

PAUL HENRY, Plaintiff,
MATTHEW L. LIBERTY, et al., Defendants.


          FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General

          OF COUNSEL: RACHEL M. KISH, ESQ. Assistant Attorney General



         Currently pending before the court in connection with this action is a motion brought by the plaintiff to compel the defendants to provide additional discovery. For the reasons set forth below, the motion is denied without prejudice.

         I. BACKGROUND

         On September 14, 2015, pro se plaintiff Paul Henry, a New York State prison inmate, commenced this civil rights action pursuant to 42 U.S.C. § 1983 against two named individuals and several "John Doe" defendants, all of whom are alleged to be corrections officers employed by the New York State Department of Corrections and Community Supervision ("DOCCS") at the Clinton Correctional Facility ("Clinton"). Dkt. No. 1. In his complaint, plaintiff alleges that, on or about October 28, 2012, he was assaulted by corrections officers causing him to suffer serious injuries. Id. at 4-6. As relief, plaintiff's complaint requests an award of compensatory and punitive damages in the amount of $20 million. Id. at 7.

         The court issued a mandatory pretrial discovery and scheduling order in the action on October 7, 2016. Dkt. No. 24. Among other things, the order required defendants to produce certain documents relating to plaintiff's claims, and specified the types of documents covered. Id. Particularly, in cases involving claims of the use of excessive force, the order required the production of documents falling into the following categories:

Photographs; unusual incident reports; use-of-force reports; disciplinary charges; records (including transcripts) of disciplinary hearings; determinations of disciplinary charges and appeals therefrom; videotapes and/or audiotapes, and medical records concerning treatment for any injuries allegedly received by the plaintiff as a result of the incident(s) alleged in the complaint.

Id. at 7 (footnotes omitted). In compliance with this directive, defendants' counsel sent plaintiff a letter on December 21, 2016, accompanied by nearly four hundred pages of materials, all of which were indexed by Bates stamp numbers. Dkt. No. 38-1. Defendants supplemented that disclosure on December 27, 2016, with the production of additional records. Dkt. No. 38-2.

         On January 6, 2017, plaintiff filed a document entitled "notice of motion to produce" with the court. Dkt. No. 35. Plaintiff requests the production of documents falling into nine enumerated categories. Id. In response, defendants' counsel wrote to the court on January 12, 2017, advising that plaintiff had not previously requested the documents set forth in his motion, and asking that the court therefore consider the motion papers as a request for the production of documents pursuant to Rule 34 of the Federal Rules of Civil Procedure.[1] Dkt. No. 38. A text order was subsequently issued on January 12, 2017, granting that request, deeming plaintiff's submission (Dkt. No. 35) to be a demand for the production of documents, and directing defendants to respond to the notice on or before February 6, 2017. Dkt. No. 39.

         On February 6, 2017, the court received a communication from the plaintiff, alleging that defendants' response to his request to produce was deficient. Dkt. No. 40. Defendants have since responded, by letter dated February 8, 2017, in essence arguing that all relevant documents that are within the possession of defendants or the DOCCS, including those sought by plaintiff, have been produced. Dkt. No. 42. Plaintiff filed an additional letter on February 15, 2017, reiterating his position that certain materials have not been produced as directed in the court's order dated October 7, 2016. Dkt. No. 44.


         The court has reviewed defendants' response, dated January 30, 2017, and supplemental response, dated February 1, 2017, to plaintiff's motion to produce, and finds no reason to conclude that plaintiff has not received all of the documents demanded, and to which he is entitled, that are currently within the possession, custody, or control of defendants or DOCCS. Many of defendants' responses refer plaintiff to materials contained within the nearly four hundred pages of initial disclosures, and identify specific Bates stamp numbers associated with the requested documents. To the extent plaintiff believes that there are other documents within the possession, custody, or control of defendants and/or the DOCCS that are relevant to his claims and have been requested but not produced, he is directed to confer with defendants' counsel as required by both the Federal Rules of Civil Procedure and the local rules of this court, identifying with specificity the documents requested. In the event the parties are unable to agree with regard to any such specific requests, plaintiff may then apply to the court for permission to file a motion to compel discovery.

         There are two specific issues raised by plaintiff that require further discussion. Plaintiff appears to request documents associated with an investigation conducted by the New York State Police into the relevant events. As defendants correctly argue, the New York State Police, as an agency, is not a party to this action and therefore cannot be compelled to respond to plaintiff's notice to produce without the issuance of a subpoena addressed to and served upon that agency requesting those documents.[2]

         Plaintiff also raises issues concerning documents associated with an investigation conducted by the DOCCS Office of Special Investigations ("OSI"). From the submissions now before the court, it appears that plaintiff was permitted to inspect those records, subject to certain redactions. Dkt. No. 38-3. I agree with defendants that, for legitimate penological reasons, plaintiff should not be permitted to retain copies of the OSI investigative file associated with the incident at issue in this matter. See Grant v. Fischer, No. 14-CV-1382, Dkt. No. 51 at 6 (N.D.N.Y. issued Aug. 9, 2016) (Stewart, M.J.) ("[T]he Court agrees that providing the Plaintiff with an opportunity to review the [OSI] Report, but not possess it, is the appropriate course which adequately protects all the parties' interests.").[3]

         III. SUMM ...

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