United States District Court, N.D. New York
PLAINTIFF: PAUL HENRY, Pro se
DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney
COUNSEL: RACHEL M. KISH, ESQ. Assistant Attorney General
DECISION AND ORDER
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
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.
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.
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.
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. 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.
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.
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.
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.
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