United States District Court, N.D. New York
VINCENT MICHAEL MARINO Plaintiff, Pro Se.
RICHARD S. HARTUNIAN United States Attorney Northern District
of New York Attorney for Defendants James T. Foley U.S.
FOLSTER LESPERANCE Assistant United States Attorney
J. STEWART United States Magistrate Judge.
se Plaintiff Vincent Michael Marino commenced this
action pursuant to Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Dkt. No. 52, Am. Compl. The only claims remaining in this
action are claims for retaliation against Defendants Helms,
Schult, Sepanek, and Lucas. Dkt. No. 86, Mem.-Dec. &
Order, dated Sept. 29, 2016. Presently before the Court are
Plaintiff's Motions requesting: (1) that Defense Counsel
seek substitution of the Estate of Robert Helms in the place
of Defendant Helms, who died on July 29, 2015, Dkt. No. 116;
and (2) to compel Defendants to provide responses, or more
complete and less evasive responses, to certain
interrogatories and document demands, dated February 22, 2017
and February 28, 2017, respectively, Dkt. Nos. 119 & 120.
The Defendants oppose the Motions. Dkt. Nos. 121 & 122.
telephone conference was held, on the record, on June 16,
2017, wherein all parties appeared and had a full opportunity
to present their respective positions. I issued a decision on
the record, in which, after applying the requisite legal
standards, I denied Plaintiff's Motion to direct
substitution under Fed.R.Civ.P. 25(a), and I granted in part
and denied in part the Plaintiff's Motions to Compel
pursuant to Fed.R.Civ.P. 37(d). I also provided further
detail regarding my reasoning and addressed the specific
issues raised by the parties.
regard to compelling a substitution of decedent Helm's
successor or a representative of his estate, Dkt. No. 116,
that Motion is denied as moot. During the
telephone conference, the pro se Plaintiff agreed to
file a request with the Court consenting to withdraw and
discontinue all claims against Defendant Robert Helms in
light of his death. Defendants' Counsel consented to this
partial discontinuance. Accordingly, the present Motion is
unnecessary. Plaintiff is instructed to file his written
request to discontinue his claims against Defendant Helms
with the Court within fifteen days of the filing date of this
regard to Plaintiff's Motions to Compel, Dkt. Nos. 119
and 120, those Motions are granted in part and denied
in part. The objections raised by Defendants'
Counsel in connection with the interrogatory and document
demands are, to a large extent, appropriate and well-placed.
With regard to Plaintiff's requests for documentation
concerning any and all misconduct of the Defendants
(see Dkt. No. 122-2 at ¶ 10, “Identify
all incidents which you were caught to be untruthful - - - -
whether verbal or written?”), those requests are, in
the Court's view, overbroad and not proportionally
relevant to the needs of the case. However, in light of the
pro se status of the Plaintiff, the Court will
construe and limit those demands solely to a request for an
in camera review of the personnel files of
Defendants Schult; Lucas; and Sepoanek, and in that amended
form, grant that request. Defendants'
Counsel shall submit directly to Chambers the personnel files
of these three named Defendants on or before July 14, 2017.
regard to the numerous demands concerning the Defendants'
medical and psychological issues, those demands are improper
as the Defendants have not placed any such conditions at
issue in this case. The Court also finds that the
Plaintiff's demand that the Defendants produce their
personal financial records, including any amount of
“cash on hand” to satisfy any potential judgment,
are also improper and not proportionally relevant to the
needs of the case, and therefore will not be compelled. The
Court also upholds the objections raised by the Defendants to
the Plaintiff's request for documents. The demands
themselves, in many instances, request the Defendants to
produce documents to show that they engaged in misconduct,
when in fact the Defendants deny any such misconduct
occurred. For example, Document Request # 1 asks:
“Defendants to hand over documents supporting that they
retaliated against Marino, by unlawfully elevating
Marino's custody/security points from 11-21.” Dkt.
No. 122-2. The Defendants response that they had no such
documents is in all respects proper and consistent with their
legal position. On a more fundamental level, Plaintiff has
indicated on the record that he believes he already possesses
all the documents necessary to establish his case. Plaintiff
is advised that if he is seeking mere confirmation of the
authenticity of the documents already obtained, he may seek a
stipulation in that regard from Defendants' Counsel or he
may utilize the procedures set forth in the Federal Rules
regarding notices to admit. See Fed. R. Civ. P. 36.
due deliberation, and based upon the Court's oral
decision, which is incorporated in its entirety by reference
herein, it is hereby, ORDERED, that
Plaintiff's Motion to Compel Defendants' Counsel to
file a motion under Fed.R.Civ.P. 25(a) to substitute the
estate of Defendant Helms (Dkt. No. 116) is
DENIED in light of Plaintiff's stated
intent to discontinue all claims against Defendant Helms, and
Plaintiff is further directed to file a written request for
discontinuance against Defendant Helms with the Court within
fifteen (15) days of receipt of the filing date of this
Order; and it is further
that Plaintiff's Motions to Compel (Dkt. Nos. 119 &
120.) are GRANTED TO THE LIMITED EXTENT that
the Defendants' Counsel shall provide to the Court
chambers the personnel files of Defendants Schult; Lucas; and
Sepoanek, for an in camera review by the Court, and
such production shall occur by July 14, 2017, and the Motions
to Compel are IN ALL OTHER RESPECTS DENIED;
and it is further
that discovery in this matter, except as specifically noted
above, is closed, and it is further
that dispositive Motions in this case shall be filed by
August 18, 2017; and it is further
that the Clerk of the Court serve a copy of this Order upon