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Nelson v. Gleason

United States District Court, W.D. New York

July 13, 2017

LIONELL NELSON, Plaintiff,
v.
LARRY GLEASON, CARLETON BRINK, and GARY BELZ, Defendants.

          ORDER

          Hon. Hugh B. Scott United States Magistrate Judge.

         Before the Court are plaintiff's motions (Docket Nos. 42, 50, 62). First, plaintiff moves to enforce a prior Order (this Court's Scheduling Order, Docket No. 12) requiring defendants Larry Gleason, Carleton Brink, and Gary Belz to produce initial disclosure (Docket No. 42). Plaintiff also seeks sanctions against defendants for deliberately disregarding the Scheduling Order in not providing initial disclosure and for making allegedly false representations (Docket No. 42). He also moved to compel defendants to answer Interrogatories (id.). Then, plaintiff moves to compel responses to his Requests for Admissions and seeks discovery sanctions for discovery he deems to be evasive (Docket No. 50). Later, he again moved to compel answers to his Interrogatories (Docket No. 62) and for production of documents (id.), while stating his response to defendants' objections to discovery (id.).

         As for plaintiff's first motion, responses were due by April 21, 2017, with replies initially due by April 28, 2017 (Docket No. 43), but defendants sought to extend plaintiff's reply to May 5, 2017, due to their late service of their response (Docket Nos. 47 (motion), 48 (Order granting defense motion), 49 (Order granting extension of reply deadline)). Defendants submitted their response (Docket No. 45) and plaintiff replied (Docket No. 54).

         Within their response to plaintiff's first motion, defendants also requested the extension of time, until May 5, 2017, to answer his Interrogatories (Docket No. 45), which this Court had not addressed. Now seeing little prejudice to plaintiff (and that defendants had served answers, Docket Nos. 46 (Belz, filed April 21, 2017), 51 (Gleason, filed May 5, 2017), 56 (Brink, filed May 15, 2017), even though the last answer was after the May 5 deadline sought), defendants motion for that extension (see Docket No. 45, Defs. Atty. Decl. ¶ 4) is granted nunc pro tunc, but to the date of the last served answer, or May 15, 2017; and so much of plaintiff's second motion (Docket No. 50) objecting to the timing of defense answers to these Interrogatories, is denied.

         Regarding plaintiff's second discovery motion (Docket No. 50), he was ordered to file with this Court his Requests for Admissions, see W.D.N.Y. Loc. Civ. R. 5.2(f) (requiring filing of discovery in pro se cases), by June 2, 2017; responses then were due by June 16, 2017, with replies due by June 26, 2017 (Docket No. 57). These two motions were deemed submitted, without oral argument, on June 26, 2017 (Docket No. 57). Plaintiff's third motion to compel had responses due by June 14, 2017 (Docket No. 64). All motions thus were submitted (without oral argument) on June 26, 2017 (see Docket No. 57).

         BACKGROUND

         Plaintiff, proceeding pro se as an inmate at Southport Correctional Facility, alleged that defendant corrections officers came into plaintiff's cell on October 16, 2011, and threw plaintiff against the cell wall and grabbed him by the throat and mouth to compel him to open his mouth. Defendants allegedly then handcuffed plaintiff and took him to the shower where plaintiff was punched. The defendants were seeking drugs plaintiff allegedly had from an earlier visit. Defendants then allegedly stripped searched plaintiff for the contraband. In all, plaintiff alleges that defendants deprived him of his rights under the Eighth Amendment to be free from unjustified use of force (id. ¶ 51) and the failure of defendant Corrections Sergeant Belz to protect him from the codefendants (id. ¶¶ 54-55).

         He moved for leave to proceed in forma pauperis (Docket Nos. 2, 3), which was granted while this Court dismissed plaintiff's official capacity claims (Docket No. 4, Order of May 14, 2015, at 1-2). The time for defendants' to serve their Answer was extended (Docket No. 12; cf. Docket No. 5), and defendants duly filed their Answer on September 30, 2016 (Docket No. 17). On September 30, 2016, a Scheduling Order was entered, with discovery to be completed by March 28, 2017 (Docket No. 18). After motion practice regarding plaintiff's attempts to obtain entry of default against defendants (Docket Nos. 20, 22, 27, 33) plaintiff's Interrogatories to defendants (Docket Nos. 29-31), and plaintiff's initial disclosure (Docket No. 32), that schedule was extended (see Docket No. 40) with discovery to be completed by May 24, 2017 (Docket No. 41). After additional discovery responses (as detailed below), and, upon defense request for extension (Docket No. 60), the schedule was further extended and discovery deadline now is August 18, 2017 (Docket No. 63).

         Given that these motions involve discovery responses deemed owed, a discourse into the filings of discovery in this action is in order, see W.D.N.Y. Loc. Civ. R. 5.2(f). This discussion will track the three motions to compel filed by plaintiff.

         Plaintiff's First Motion (Docket No. 42)

         The first Scheduling Order was an inmate Scheduling Order (Docket No. 18); an exception from Rule 26(a) allows this Court to order the parties (primarily defendants) to exchange initial disclosures (id. ¶ 3), with these disclosures due by November 29, 2016 (id.). Under this District's Local Civil Rule 5.2(f), in an incarcerated pro se action such as this “all discovery materials . . . shall be filed with the Court, W.D.N.Y. Loc. Civ. R. 5.2(f); see id. R. 5.2(f)(1) (defining “discovery” required to be filed). Plaintiff filed his Interrogatories posed to each defendant (Docket Nos. 29-31).

         Defendants filed their disclosures on November 29, 2016 (Docket No. 28), with attached documents, and then refiled just the initial disclosure on January 17, 2017 (Docket No. 36), with proof of service of both filings attached (Docket Nos. 28, 36).

         Plaintiff moved to enforce the initial Scheduling Order and its requirement of production of initial disclosure, seeking sanctions for defendants' non-disclosure (Docket No. 42). Defendants argue that the motion should be denied because plaintiff made no attempt to confer about the discovery dispute prior to moving (Docket No. 45, Defs. Atty. Decl. ¶ 3). After noting that one of the defendants submitted his answers to plaintiff's Interrogatories (id. ¶ 4 & n.1; Docket No. 46, Belz Ans. to Interrog.), defendants recounted the materials produced with their initial disclosure (Docket No. 45, Defs. Atty. Decl. ¶ 5) and notes the absence of a Use of Force or Unusual Incident Report for this incident (id. ¶ 6). Defendants also sought an extension of time (until May 5, 2017) to answer plaintiff's remaining Interrogatories (Docket No. 45, Defs. Atty. Decl. ¶ 4).

         Plaintiff replied pleading that he did not know of the meet and confer requirement prior to moving to compel disclosure but he disputes whether there is a meet and confer requirement either under Rule 26(a) or after serving Interrogatories (Docket No. 54, Pl. Decl. ¶ 3). He claims that defense counsel's response was back dated to hide defendants' continued tardiness (id. ¶ 5). Plaintiff continues to seek production of the Inspector General report (id. ¶ 6) which defendants as a matter of policy refuse to produce to inmates directly due to security concerns (see Docket No. 45, Defs. Atty. Decl. ΒΆ 5). But ...


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