United States District Court, W.D. New York
DECISION & ORDER
W. PAYSON, UNITED STATES MAGISTRATE JUDGE
Richard (“Richard”) filed this action pro
se against Jennifer Dignean (“Dignean”) and
Thomas Tanea (“Tanea”) (collectively,
“defendants”) pursuant to 42 U.S.C. § 1983
asserting a First Amendment retaliation claim against Tanea
and equal protection claims against both defendants. (Docket
# 1). Richard alleges that defendants, who were Senior
Correctional Counselors with the New York State Department of
Corrections and Community Supervision (“DOCCS”),
discriminated against him on the basis of his race and
religion by creating an unwritten policy to deny him certain
employment opportunities and retaliated against him for
filing grievances about defendants' conduct.
(Id.; see also Docket # 22). Currently
pending before this Court is Richard's motion to compel
responses to discovery demands and for sanctions. (Docket #
46). For the reasons discussed below, Richard's motion to
compel and for sanctions is granted in part and denied in
filed his complaint on December 3, 2010, against fourteen
defendants, which defendants moved to dismiss on June 28,
2011. (Docket ## 1, 14). Many of Richard's
claims were dismissed by the Honorable Elizabeth A. Wolford,
the presiding district judge, in a decision dated August 7,
2014. (Docket # 22). This Court held a Rule 16 scheduling
conference with Richard and counsel for defendant, J. Richard
Benitez, Esq., on October 15, 2014, and issued a scheduling
order that, among other things, required defendants to serve
initial disclosures by December 1, 2014. (Docket # 26).
Despite the order, defendants served them on March 17, 2015.
(Docket # 31).
early 2015, Richard moved for reconsideration of Judge
Wolford's decision dismissing some of his claims, which
was denied on September 23, 2015. (Docket ## 28, 32). In her
decision denying reconsideration, Judge Wolford directed the
parties to confer and contact this Court if any extensions of
the scheduling order deadlines were needed. The parties did
not contact this Court to request any extensions.
Wolford held a status conference on May 12, 2016. (Docket #
37). At the conference, Richard requested additional
discovery before scheduling the case for trial, and the case
was re-referred to me to supervise such discovery. (Docket #
38). I held a scheduling conference with Richard and Benitez
on June 15, 2016, after which I issued an amended scheduling
order setting new deadlines for further discovery. (Docket ##
22, 2016, Richard served formal interrogatories (which were
filed on June 27, 2016 (Docket # 42)) and on July 20, 2016,
he served requests for production of documents (which were
filed on September 8, 2016 (Docket # 45)). Richard also
alleges that he served requests for admissions on July 10,
2016. (Docket # 46 at ¶ 27). Although Local Rule 5.2(f)
requires the parties to file discovery requests and responses
in cases with incarcerated pro se litigants,
Richard's requests for admissions do not appear on the
docket. See W.D.N.Y. L.R. Civ. P. 5.2(f).
represents that Benitez asked the Court for an additional
thirty days to respond to the interrogatories, which was
granted. (Id. at ¶¶ 11-12). In fact, the
record suggests that Benitez sent a letter to Richard, not
this Court, on July 25, 2016, requesting a thirty-day
extension to respond to the interrogatories; the docket does
not contain any court order granting an extension. (See
id., Ex. A). During his August 26, 2016, deposition,
Richard asked Benitez about the status of the
interrogatories, and Benitez responded that he could not
locate the defendants and would request another extension.
(Docket # 49 at 16). Although Richard consented to an
extension, Benitez did not timely request one.
September 20, 2016, Richard sent a letter to Benitez
regarding the outstanding discovery requests. (Docket # 46 at
Ex. B). Benitez apparently did not respond, prompting Richard
to file this motion to compel, which is dated September 26,
2016, but was filed on October 11, 2016. (Docket # 46).
filed a seven-paragraph affidavit in opposition to this
motion on November 14, 2016. (Docket # 49). In relevant part,
Benitez concedes that defendants did not respond to
Richard's requests and acknowledges that he failed to
timely request an extension of the scheduling order
deadlines. (Id. at ¶ 7). He explained that he
“inadvertently overlooked submitting the request sooner
based on various trial engagements [and] litigation.”
Dignean, on January 24, 2017, and defendant Tanea, on
February 21, 2017, responded to Richard's outstanding
interrogatories. (Docket ## 57, 58).
addition to seeking to compel the responses to outstanding
requests, Richard also seeks sanctions. (Docket # 46).
Specifically, Richard requests that the interrogatories and
document demands be deemed admitted (id. at
¶¶ 72-75), the requested admissions be deemed
admitted (id. at ¶¶ 76-78), and
unspecified facts and issues be deemed resolved in his favor
(id. at ¶¶ 79-80). Additionally, Richard
seeks an order precluding defendants from offering evidence
of his disciplinary record and finding them in contempt
(id. at ¶¶ 84-91), and entry of a default
judgment (id. at ¶ 92).