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Gambino v. Payne

United States District Court, W.D. New York

March 16, 2017

DAVID AUGUST GAMBINO, Plaintiff,
v.
CAPTAIN PAYNE, et al., Defendants.

          REPORT, RECOMMENDATION, AND ORDER

          MICHAEL J. ROEMER United States Magistrate Judge

         This case has been referred to the undersigned for all pre-trial matters, including the hearing and disposition of non-dispositive motions and the preparation of a report and recommendation on dispositive motions. (Dkt. No. 221). Presently before the Court are five motions filed by plaintiff David August Gambino, the last of which seeks dispositive relief: (1) a motion to enforce the Court's October 6, 2016 Decision and Order compelling defendants to produce contracts between the Niagara County Jail and Trinity Services Group (Dkt. No. 319); (2) a motion to stay the instant action to allow Gambino time to pursue a claim against non-party Compass Group USA (Dkt. No. 324); (3) a motion for sanctions against defendants for allegedly failing to timely disclose Compass Group USA (Dkt. No. 327); (4) a motion for an “immediate temporary order of protection” against certain non-party Federal Bureau of Prisons officers (Dkt. No. 330); and (5) a motion to certify an interlocutory appeal to the United States Court of Appeals for the Second Circuit (Dkt. No. 320).[1] For the following reasons, the first four motions are denied, and it is recommended that the fifth motion be denied as well.

         BACKGROUND

         Plaintiff David August Gambino, a pro se inmate in the care and custody of the Federal Bureau of Prisons at the Fort Dix Federal Correctional Institution, commenced this 42 U.S.C. §1983 action in 2012. (Dkt. No. 1). Defendants include the County of Niagara and several current and former employees of the Niagara County Jail. Gambino alleges in the Second Amended Complaint that he is an “adherent of the Hebrew religion [who is] in the long process of conversion to Judaism.” (Dkt. No. 233 at 7).[2] Among other claims, Gambino alleges that while he was in the custody of the Jail awaiting disposition of his federal criminal charges, defendants prohibited him from covering exposed areas of the shower doors while he showered and tampered with his kosher meals, all in violation of his religious beliefs. (Id. at 6-39). Gambino's motions are addressed below.

         DISCUSSION

         I. Motion to Enforce the October 6, 2016 Decision and Order (Dkt. No. 319)

         After learning through discovery that the Jail contracted with Trinity Services Group “to assist in preparing the menu for regular meals, special meals and kosher meals, ” Gambino moved to compel defendants to produce that contract. (Dkt. No. 298 at 1-6). By Decision and Order dated October 6, 2016, the Court granted Gambino's request and directed defendants to “produce the contract(s) between the Jail and Trinity Services Group for the period January 1 to June 29, 2012.” (Dkt. No. 304 at 8). Pursuant to the Decision and Order, defense counsel sent Gambino a purchase order between the Jail and Trinity Services Group's predecessor, Compass Group USA, [3] and advised him that “[t]here is no contract other than this purchase order.” (Dkt. No. 309). Gambino now moves to enforce the Court's October 6, 2016 Decision and Order, arguing that defendants' production of the purchase order fails to comply with the Court's directive to produce a contract. Gambino's motion also discusses certain bid documents referenced in the purchase order, which defendants have since produced to him. (See Dkt. No. 331-1).

         Gambino's motion appears to take issue with the fact that the document defendants produced is labeled “purchase order, ” not “contract.” Defense counsel's letter enclosing the purchase order makes clear, however, that the purchase order is indeed a contract, and that it is the only contract between the Jail and Compass Group USA/Trinity Services Group for the relevant time period. (See Dkt. No. 309 (“I am enclosing the purchase order for those services. There is no contract other than this purchase order.”) (emphasis added). Gambino has not come forward with any evidence calling into question defendants' representations. Defendants have produced the bid documents referenced in the purchase order as well. Thus, on this record, the Court finds that defendants have complied with the Court's October 6, 2016 Decision and Order. Gambino's motion to enforce the Decision and Order is denied.

         II. Motion to Stay (Dkt. No. 324)

         This motion seeks to stay the instant action so that Gambino may, in his words, “try to fix what may now be a time barred claim against the Compass Group USA that was caused by the Defendants['] actions and in-actions.” (Dkt. No. 324 at 1). The Court notes that Gambino just recently moved for leave to amend his Second Amended Complaint to add Compass Group USA as a defendant. (See Dkt. No. 339). Gambino's request to stay the action to allow him time to consider adding Compass Group USA as a defendant is therefore denied as moot. The Court will separately enter a briefing schedule on Gambino's motion for leave to amend.

         III. Motion for Sanctions (Dkt. No. 327)

         Gambino moves for sanctions against defendants for not identifying Compass Group USA in its initial disclosures.[4]

         Rule 37 provides for sanctions if a party “fails to provide information or identify a witness as required by Rule 26(a) or (e) . . . unless the failure was substantially justified or is harmless.” Rule 37(c)(1). Under Rule 26(a)(1)(A)(i), a party must disclose the following information as part of its initial disclosures:

[T]he name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or ...

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