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Richard v. Dignean

United States District Court, W.D. New York

July 20, 2017


          DECISION & ORDER


         John W. 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 part.


         Richard filed his complaint on December 3, 2010, against fourteen defendants, which defendants moved to dismiss on June 28, 2011.[1] (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).

         In 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.

         Judge 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 ## 40, 41).

         On June 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).

         Richard 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.[2]

         On 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).

         Benitez 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.” (Id.).

         Defendant Dignean, on January 24, 2017, and defendant Tanea, on February 21, 2017, responded to Richard's outstanding interrogatories.[3] (Docket ## 57, 58).

         In 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).


         I. Mot ...

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