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Kiss v. Cook

United States District Court, N.D. New York

August 29, 2017

STEPHEN T. KISS, Plaintiff,
v.
JONATHAN D. COOK, Defendant.

          DECISION AND ORDER

          LAWRENCE E. KAHN U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Presently 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”).[1] 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 denied.

         II. BACKGROUND

         A. Kiss's Complaint

         Kiss 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”).

         In the 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.

         B. Kiss's Challenges to Cook's Answer

         Cook 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.

         Kiss 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.[2] 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”).

         On 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.[3] 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.

         C. Discovery Motions

         On July 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.[4] 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 Request. Appeal.

         III. ...


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