United States District Court, W.D. New York
Hugh B. Scott United States Magistrate Judge.
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.).
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).
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
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).
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. ¶¶
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).
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
First Motion (Docket No. 42)
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
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).
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).
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.
¶ 5). But ...