Young v. McGill et al

Filing 73

RULING ON PENDING MOTIONS AND SCHEDULING ORDER: See attached Ruling. In summary of that Ruling, the Court takes 55 the Second Amended Complaint as the operative Complaint, denies without prejudice 51 Motion to Dismiss, denies [56, 61] Motions fo r Protective Order, grants in part and denies in part 58 Motion to Compel as explained in the attached Ruling, denies 60 Motion to Compel, denies without prejudice 63 Motion for Appointment of Counsel, and denies 65 Motion for Emergency Relie f. The parties will find these rulings fully described in the attached Ruling. Defendants shall respond to the discovery requests that are referenced on page 11 of the attached Ruling within 30 days of the date of this Order. Defendants shall file their response to the Second Amended Complaint within 60 days of the date of this Order. Any further discovery shall be completed within 120 days of the date of this Order. All motions for summary judgment shall be filed within 150 days of the date of this Order. The docket clerk and Prisoner Litigation Office will find further instructions on page 12 of the attached Ruling. Signed by Judge Charles S. Haight, Jr on May 11, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CEDRIC YOUNG
V.

CASE NO. 3:09CV1186 (CSH) (TPS)

JEFFREY MCGILL, ET AL.
RULING ON PENDING MOTIONS
Pending before the court are multiple motions to compel and
for protective order, a motion to dismiss, a motion for
appointment of counsel and a motion for expedited ruling on
pending motions.

For the reasons set forth below, the first

motion to compel will be granted in part and denied in part.

The

other motions will be denied.
I.

Second Amended Complaint and Motion to Dismiss
[Docs. Nos. 51, 55]
The plaintiff commenced this civil rights action on July 27,

2009.

On January 26, 2010, he filed an Amended Complaint

asserting claims of excessive use of force, unconstitutional
conditions of confinement, deliberate indifference to medical
needs and conspiracy arising from an incident that occurred on
January 5, 2009 at Northern Correctional Institution.
No. 6.)

(See Doc.

On May 5, 2010, the court ruled that all of these claims

would proceed against defendants Warden Jeffrey McGill, Captain
Scott Salius, Lieutenants McCormick and Rae, Correctional
Officers Prior, Mullen and Brace, Dr. Carson Wright and Nurses
Wendy Sanders and Kay in their individual capacities.

The defendants seek to dismiss the claims in the Amended
Complaint against defendants Light, Salius and McGill.

On April

5, 2011, in response to the motion to dismiss, the plaintiff
filed a Declaration requesting permission to file a second
amended complaint to address the deficiencies set forth in the
motion to dismiss.
on April 6, 2011.

A clerk docketed the Second Amended Complaint
(See Doc. No. 55.)

The Federal Rules of Civil Procedure provide that a
plaintiff may amend his complaint once as of right “within 21
days after serving [the complaint] or . . . [within] 21 days
after service of a” pleading responsive to the complaint “or 21
days after service of a motion” to dismiss, for more definite
statement or to strike, whichever is earlier.”
Fed. R. Civ. P.

Rule 15(a)(1),

The defendants object to the filing of the

Second Amended Complaint because the plaintiff did not seek leave
to file it.
The plaintiff amended his complaint as of right when he
filed his first Amended Complaint on January 26, 2010.
Furthermore, the Second Amended Complaint was filed on April 5,
2011, more than twenty-one days after service of the First
Amended Complaint.1

Thus, the Second Amended Complaint should

not have been docketed because the plaintiff did not formally
move for leave to amend and the court did not grant him

1

The docket sheet reflects that the defendants in the First
Amended Complaint were served in May and June 2010.
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permission to file a Second Amended Complaint.
The court, however, will now liberally construe the
plaintiff’s Declaration [Doc. No. 54] in opposition to the motion
to dismiss to include a request for leave to file a second
amended complaint.

Federal Rule of Civil Procedure 15(a)(2)

provides that after having once amended a pleading, “a party may
amend its pleading only with the opposing party’s written consent
or the court’s leave.

The court should freely give leave when

justice so requires.”
In addition to the claims and defendants set forth in the
first Amended Complaint, the plaintiff includes several new
claims and two new defendants in the Second Amended Complaint.
The Second Amended Complaint includes a claim regarding the
issuance of a disciplinary report for threats allegedly made by
the plaintiff during the January 5, 2009 incident described in
the Amended Complaint.
report.

Defendant Mullen issued this disciplinary

The plaintiff seeks to add claims that defendants Brace

and Prior denied him procedural due process in connection with
the hearing that was held to dispose of the disciplinary report.
The plaintiff alleges that the disciplinary hearing officer found
him guilty and imposed sanctions of twenty days confinement in
punitive segregation, ninety days loss of telephone privileges
and ninety days loss of commissary privileges.

The plaintiff

seeks to add District Administrator Wayne Choinski as a defendant
because he upheld the sanctions imposed as a result of the guilty
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finding.
The plaintiff also seeks to add Health Services
Administrator Hicock as a defendant as well as claims that
Administrator Hicock was deliberately indifferent to injuries he
suffered on January 5, 2009 and to his allegations that defendant
Nurse Kay had minimized his wrist injuries and denied him medical
care.
The claims that the plaintiff seeks to add are related to
and/or arise from the central claims in the Amended Complaint
regarding the alleged use of force and denial of medical care on
January 5, 2009.

Furthermore, if the court were to deny the

plaintiff leave to assert these new claims in this action and
direct him to file a another action including those claims, it is
likely that the action would be barred by the three-year statute
of limitations as they occurred in January and February 2009.
See Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994)
(applying Connecticut’s three year statute of limitations to
actions brought pursuant to 42 U.S.C. § 1983).

The court

concludes that the addition of these claims and new defendants
will not unduly prejudice the existing defendants or
significantly delay this action.

See Foman v. Davis, 371 U.S.

178, 182 (1962) (the court considers such factors as undue delay,
bad faith, dilatory motive, undue prejudice and futility of the
amendment, in determining whether to grant leave to amend).
Accordingly, the court grants the plaintiff’s motion for
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leave to file the Second Amended Complaint nunc pro tunc.
Because the plaintiff has filed a Second Amended Complaint that
addresses the arguments asserted by the defendants in their
motion to dismiss and asserts new claims against two new
defendants, the court denies the motion to dismiss without
prejudice.

The defendants may file a new motion to dismiss

addressed to the Second Amended Complaint after the Second
Amended Complaint has been served on the two new defendants.
II.

Motions for Protective Order [Docs. Nos. 56, 61]
On September 11, 2010, the plaintiff mailed Interrogatories

and a Request for Production of Documents to counsel for the
defendants.

The Interrogatories were addressed to defendants

Wright, Sanders, Kay, Prior and McGill and the Request for
Production was addressed to defendant Prior.

On November 3,

2010, the court granted the defendants an extension of time until
December 27, 2010 to respond to these discovery requests.

On

February 10, 2011, the court granted the defendants a second
extension of time until April 1, 2011 to respond to these
discovery requests and indicated that no further extensions of
time would be granted for any reason.

On December 28, 2010, the

plaintiff mailed Requests for Admission addressed to defendant
Prior to counsel for the defendants.
On March 7, 2011, defendants moved to dismiss the claims
against them.

On April 1, 2011, defendant Prior mailed his

responses to the Requests for Admission to the plaintiff.
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On

April 12, 2011, counsel for the defendants filed a motion for
protective order seeking to be excused from responding to
plaintiff’s discovery requests until after the court’s ruling on
a second motion to dismiss addressed to the Second Amended
Complaint that counsel intended to file in the future.
On June 24, 2011, the plaintiff filed a motion to compel the
defendants to respond to his September 2010 Interrogatories and
Request for Production of Documents.

On August 8, 2011, the

plaintiff filed a motion to compel defendant Prior to answer his
Requests for Admission.

On August 23, 2011, counsel for the

defendants moved for a second protective order seeking to be
excused from responding to plaintiff’s discovery requests until
the court rules on whether the first or second amended complaint
is the operative amended complaint.
A party seeking a stay of discovery pursuant to Federal Rule
of Civil Procedure 26(c) bears the burden of demonstrating good
cause.

“Although not expressly authorized by statue or rule, ...

the federal district courts have discretion to impose a stay of
discovery pending the determination of dispositive motions by the
issuance of a protective order.”

Hachette Distribution, Inc. v.

Hudson County News Co., Inc., 136 F.R.D. 356, 358 (E.D.N.Y.1991)
(citing cases).

Merely filing a dispositive motion, however,

even if the motion “attack[s] the jurisdiction of the district
court, does not warrant the issuance of a stay under [Federal]
Rule 26(c).”

United States v. County of Nassau, 188 F.R.D. 187,
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188 (E.D.N.Y. 1999).
Here, the defendants’ responses to the September 2010
Interrogatories and Request for Production were due by April 1,
2011.

The court had clearly warned the defendants that no

further extensions of time to respond to these discovery requests
would be granted.

The fact that three defendants filed a motion

to dismiss on March 7, 2011, is insufficient to warrant a stay of
discovery.

Furthermore, the defendants did not move for a

protective order until April 12, 2011, after the deadline for
responding to the September 2010 discovery requests had elapsed.
Thus, the motions for protective order were untimely.

In

addition, the motion to dismiss filed on March 7, 2011, was only
addressed to defendants McGill, Light and Salius.

The defendants

provide no basis for granting a protective order with regard to
discovery requests directed to other defendants.

Nor has counsel

asserted that it would be burdensome for defendant McGill to
respond to the September 2010 interrogatories.

Furthermore,

counsel has provided no authority permitting the court to grant a
stay of discovery to allow her to possibly file of a motion to
dismiss in the future.

Accordingly, the motions for protective

order are denied for lack of good cause shown.
III. Motions to Compel [Docs. Nos. 58, 60]
The plaintiff seeks to compel defendants to respond to his
September 11, 2010 Interrogatories addressed to defendants
Wright, Sanders, Kay and McGill and Interrogatories and a Request
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for Production of Documents addressed to defendant Prior.
Because the court has denied the motion to dismiss the Amended
Complaint and has denied the motions for protective order, the
motion to compel is granted.

The defendants shall respond to

these discovery requests within thirty days of the date of this
order.
To the extent that the plaintiff seeks sanctions against the
defendants for their failure to respond to these discovery
requests, the motion is denied without prejudice.

The motion may

be renewed if the defendants fail to respond to the
interrogatories and request for production within thirty days.
The plaintiff also challenges defendant Prior’s responses to
the December 2010 Requests for Admission.

Federal Rule 36(a)(6)

provides that “[t]he requesting party may move to determine the
sufficiency of an answer or objection.

Unless the court finds an

objection justified, it must order that an answer be served.”
The plaintiff claims that he mailed the Requests for
Admission directed to defendant Prior on December 28, 2010.

It

is unclear when counsel for defendant Prior received the Request
for Admissions.

On April 1, 2011, counsel mailed defendant

Prior’s responses to the Requests for Admission to the plaintiff.
The Requests for Admission and defendant Prior’s responses are
attached to the plaintiff’s motion to compel.

(See Mot. Compel,

Doc. No. 60 at 5-17.)
The plaintiff argues that defendant Prior’s responses to
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paragraphs one, two, seven, eight, ten, eleven, thirteen and
twenty-eight of the Requests for Admission are insufficient.
Paragraph one is worded as follows: “The plaintiff was already in
full body restraints upon the actual time of the assault
underdate 1/5/09.”

Id. at 7.

Defendant Prior responded as

follows: “The term full body restraints is not a term with which
the Department of Corrections is familiar.

Denied as to any

allegation of an assault on January 5, 2009.”

Id. at 14.

The

plaintiff does not explain what he finds objectionable or
insufficient about the response to paragraph one.

The court

concludes that the answer to paragraph one is sufficient.
Defendant Prior responded to paragraphs two, seven, eight,
ten, eleven, thirteen and twenty-eight in the same manner.

He

stated that the requests were “couched in interrogatory form and
not as a request for admission.”

Id. at 14-15, 17.

The court

concludes that the objections to these paragraphs are justified.
The sentences are not statements of fact that can be admitted or
denied.

Rather they are questions or interrogatories.

Accordingly, the motion to compel is denied.

The plaintiff may

re-characterize the sentences in his requests for admission as
interrogatories and serve those interrogatories on defendant
Prior.
IV.

Motion for Appointment of Counsel [Doc. No. 63]
The plaintiff has renewed his request for the appointment of

pro bono counsel.

The Second Circuit has made clear that before
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an appointment is even considered, the indigent person must
demonstrate that he is unable to obtain counsel.

See Hodge v.

Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied,
502 U.S. 996 (1991).
The plaintiff states that he has attempted to contact two
attorneys who have declined to represent him.
has contacted a law school clinic.

In addition, he

The supervising attorney

indicated that the legal clinic would not be able to represent
the plaintiff due to limited resources.
It is evident from many of the attachments to the motion for
appointment of counsel that an attorney from the Inmates’ Legal
Assistance Program is attempting to assist the plaintiff with
this action.

The attorney responded to numerous letters sent to

him by the plaintiff from August 11, 2009 to August 24, 2011.
The plaintiff’s motion for appointment of counsel was signed on
September 8, 2011 and filed with the court on September 12, 2011.
The court concludes that the plaintiff has not demonstrated
that he is unable to secure legal assistance without the
intervention of the court.

Accordingly, the plaintiff’s motion

for appointment of counsel is denied without prejudice.
V.

Motion for Emergency Relief [Doc. No. 65]
The plaintiff asks the court to rule on his motions to

compel.

As the court has ruled on these motions, the relief

sought by the plaintiff is moot.
is denied.
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The motion for emergency relief

CONCLUSION
The plaintiff’s Declaration [Doc. No. 54] in opposition to
the Motion to Dismiss, which the court has construed as a Motion
for leave to file a second amended complaint, is GRANTED nunc pro
tunc.

In view of the filing of the Second Amended Complaint

[Doc. No. 55], the Motion to Dismiss [Doc. No. 51] is DENIED
without prejudice.

The defendants may file a new motion to

dismiss addressed to the Second Amended Complaint after the
Second Amended Complaint has been served on the two new
defendants.
The Motions for Protective Order [Docs.
DENIED for lack of good cause shown.

Nos. 56, 61] are

The Motion to Compel and

for Sanctions [Doc. No. 58] is GRANTED to the extent that it
seeks a court order directing defendants Wright, Sanders, Kay and
McGill to respond to his September 11, 2010 Interrogatories and a
court order directing defendant Prior to respond to his September
11, 2010 Interrogatories and Request for Production of Documents
and is DENIED without prejudice in all other respects.

The

defendants shall respond to these discovery requests within
thirty days of the date of this order.
deadline will be granted for any reason.

No extensions of this
The plaintiff may re-

file his motion for sanctions if the defendants fail to respond
to the September 2010 interrogatories and request for production
within thirty days.

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The Motion to Compel [Doc. No. 60] defendant Prior to
respond to the December 2010 Requests for Admission is DENIED.
The Motion for Appointment of Counsel [doc. # 63] is DENIED
without prejudice.

Any renewal of this motion shall be

accompanied by a summary of the plaintiff’s attempts to obtain
counsel or legal assistance and the reasons why assistance or
representation was unavailable.

The Motion for Emergency Relief

[Doc. No. 65] is DENIED.
After docketing this ruling, the docket clerk shall
immediately contact the Prisoner Litigation Unit in the Office of
the Clerk in Bridgeport with regard to service of the Second
Amended Complaint on defendants Wayne Choinski and Brian Hicock.
Within fourteen (14) days of this Order, the Pro Se Prisoner
Litigation Office shall ascertain from the Department of
Correction Office of Legal Affairs the current work addresses for
defendants Choinski and Hicock and mail waiver of service of
process request packets, including a copy of the Second Amended
Complaint, to defendant Choinski in his individual capacity and
defendant Hicock in his individual capacity at his or her current
work address.

On the thirty-fifth (35th) day after mailing, the

Pro Se Office shall report to the court on the status of all
waiver requests.

If any defendant fails to return the waiver

request, the Clerk shall make arrangements for in-person service
by the U.S. Marshals Service and the defendant shall be required

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to pay the costs of such service in accordance with Federal Rule
of Civil Procedure 4(d).
The defendants shall file their response to the Second
Amended Complaint, either an answer or a motion to dismiss,
within sixty days of the date of this order.

Any further

discovery, pursuant to Federal Rules of Civil Procedure 26
through 37, shall be completed within 120 days of the date of
this order.

All motions for summary judgment shall be filed

within 150 days of the date of this order.
SO ORDERED in New Haven, Connecticut, this 11th of May,
2012.

Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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