United States District Court, N.D. New York
STEPHEN T. KISS, Plaintiff,
JONATHAN D. COOK, Defendant.
DECISION AND ORDER
LAWRENCE E. KAHN U.S. DISTRICT JUDGE
before the Court are two motions by pro se Plaintiff Stephen
T. Kiss. First, Kiss moves to strike the affirmative defense
of qualified immunity from Defendant Jonathan D. Cook's
pleading. Dkt. No. 67 (“Motion”). Second, Kiss
appeals, Dkt. No. 83 (“Appeal”), an order issued
by U.S. Magistrate Judge David E. Peebles during a July 19,
2017 telephonic conference, id. at 11
(“Conference Order”). Judge Peebles issued a text
order memorializing the Conference Order on July 26, 2017.
Dkt. No. 85 (“Text Order”). Cook filed responses
to the Motion, Dkt. No. 68 (“Motion Response”),
and the Appeal, Dkt. No. 84 (“Appeal Response”).
For the following reasons, Kiss's Motion and Appeal are
commenced this action on May 23, 2016, by filing a complaint
under 42 U.S.C. § 1983. Dkt. No. 2
(“Complaint”). Though originally filed in the
Southern District of New York, the action was transferred to
this Court on July 6, 2016, by order of Chief United States
District Judge Colleen McMahon of the Southern District. Dkt.
No. 4 (“Transfer Order”).
Complaint, Kiss alleges that Cook, a New York State trooper,
assaulted him during the course of an encounter that led to
Kiss's arrest on October 17, 2015. Id. at 10-11.
He claims that Cook forced his stomach and lower ribs into
the grille of his vehicle, slammed his head onto the
vehicle's hood, and otherwise assaulted him, resulting in
a concussion, a bruised lower left rib, a bruised left
shoulder, and neck pain. Id. Kiss seeks compensatory
damages in the amount of $2, 500, 000. Id. at 5.
Kiss's Challenges to Cook's Answer
submitted an answer to the Complaint on October 28, 2016.
Dkt. No. 16 (“Answer”). In the Answer, Cook
raises several defenses, including qualified immunity.
Id. at 2.
has mounted numerous challenges to Cook's claim of
qualified immunity, including attempts to “dismiss,
” “oppose, ” and “reply” to
Cook's Answer. On November 14, 2016, he moved for
permission to “file ‘report papers' & or
a ‘Cross Motion' in reference to [his]
objections.” Dkt. No. 29 (“Reply Motion”).
The following day, Kiss submitted a document titled
“Plaintiffs [sic] Response to Defendants [sic] Answer
to Complaint, ” Dkt. No. 32 (“Answer
Reply”), which, among other things, asserted that Cook
“is not protected under the doctrine of
qualified immunity, ” id. at 8. Judge Peebles
denied the Reply Motion on November 16 because “a reply
to an answer is only permitted ‘if the court orders
one'” and the Court had neither ordered a reply nor
found one to be necessary. Dkt. No. 31 (“November 16
Order”) (quoting Fed.R.Civ.P. 7(a)(7)). He further
ordered Kiss's Answer Reply struck from the record for
the same reasons. Id. The same day, Kiss moved to
“dismiss” the Answer, which he described as
“an insufficient response.” Dkt. No. 34
(“November 16 Motion”). Judge Peebles denied the
November 16 Motion that day. Dkt. No. 35 (“Second
November 16 Order”).
January 18, 2017, Kiss moved for “partial summary
judgment in disallowing [Cook] from being allowed to use the
doctrine of qualified immunity as an affirmative
defense.” Dkt. No. 52 (“Partial Summary Judgment
Motion”) at 1. Kiss explained that his motion was
“a ‘partial' motion, in that it s[ought] to
‘strike', or remove and or disallow a portion from
[Cook's] pleadings, from his Answer.” Id.
On January 20, Judge Peebles struck the Partial Summary
Judgment Motion from the record for failure to comply with
various provisions of the Federal Rules of Civil Procedure
and the local rules of this District. Dkt. No. 56
(“January Order”). On January 20, Kiss moved to
appoint a “civilian external investigatory oversight
body . . . to establish a neutral standard when determining
the factors as the Court rules on the admittance of the
doctrine of qualified immunity as an affirmative
defense.” Dkt. No. 58 (“January 20
Motion”). Judge Peebles denied this request on February
1 because the “requested relief is not
authorized.” Dkt. No. 61 (“February
Order”). Finally, on June 23, 2017, Kiss moved to
strike the qualified immunity defense from the Answer. Mot.
11, 2017, Kiss submitted two letter motions to Judge Peebles
seeking to compel discovery from Cook. Dkt. Nos. 73
(“Records Request”), 74 (“Interrogatory
Request”). The first letter motion sought to compel
production of documents relating “to any psychological
or mental health counseling or treatment that [Cook] has ever
had . . . that relates in any way to the allegations made in
[this action], ” as well as copies of Cook's
“last three (3) Federal Tax returns.” Records
Request at 1. The second letter motion sought to compel
“a copy of [Cook's] arrest record, ” and
specifically requested “the total amount of DWI arrests
& the total amount of ‘warrant' arrests.”
Interrog. Request at 2. Judge Peebles held a telephonic
conference to address Kiss's motions on July 19.
Conference Order. He denied both motions. Id.;
accord Text Order. Kiss now appeals Judge
Peebles's order to the extent it denied the Interrogatory