Velasco v. Halpin et al

Filing 96

ORDER granting in part and denying in part 79 Motion to Compel, and granting in part and denying in part 90 Motion to Compel. See attached order for details. Signed by Judge Sarah A. L. Merriam on 11/20/2017. (Gust, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
VICTOR JOSE VELASCO
:
:
v.
:
:
HALPIN, et al.
:
:
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Civil No. 3:11CV00463(AWT)

November 20, 2017

RULING ON MOTIONS TO COMPEL [DOC. ##79, 90]
Pending before the Court are two motions filed by plaintiff
Victor Jose Velasco (“plaintiff”), seeking to compel discovery
and a custodial affidavit from defendants, Lieutenant Halpin,
Lieutenant Dougherty, Investigator Sweet, Counselor Damian
Doran, and Acting District Administrator John Alves
(“defendants”). [Doc. ##79, 90].1 Defendants filed joint
objections to plaintiff’s motions to compel. [Doc. ##85, 90].
For the reasons articulated below, the Court: GRANTS in part,
and DENIES, in part plaintiff’s Motion to Compel Discovery
regarding Document Request No. 6, [Doc. #79]; and GRANTS, in
part, and DENIES, in part as moot, plaintiff’s Motion to Compel
a Custodial Affidavit, [Doc. #90].

1

The Court has previously ruled in part on plaintiff’s Motion to
Compel Discovery (Doc. #79), and it no longer appears as pending
in ECF. See Doc. #87. However, the Court reserved ruling on the
motion as it pertains to Request for Documents No. 6. See id.

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BACKGROUND

Plaintiff brings this matter pursuant to 42 U.S.C. §1983
challenging disciplinary proceedings and his classification as a
member of a security risk group safety threat (specifically, the
Latin Kings).
On October 13, 2017, plaintiff filed a motion seeking to
compel defendants to produce additional documents in response to
plaintiff's requests for production. See Doc. #79. Defendants
filed an objection on October 26, 2017. See Doc. #85. On October
31, 2017, the Court held a Telephonic Status Conference
regarding the issues raised in the motion to compel. During that
conference, counsel for defendants represented that there are no
materials responsive to Document Request No. 6 seeking “[t]he
complete Department of Correction disciplinary records of each
of the Defendants, including disciplinary reports.” Doc. #80-1
at 5. Specifically, counsel represented that none of the
defendants had any disciplinary record at all, from 2010 to the
present. However, after the conference, counsel for defendants
notified the Court that materials had been found that are
arguably responsive to request No. 6. The Court issued an Order
requiring counsel for defendants to submit the materials to the
Court for in camera review. See Doc. #87.

2

On November 3, 2017, plaintiff filed a Motion to Compel a
Custodial Affidavit that would: (1) Describe how the search for
documents responsive to request No. 6 was performed; (2) explain
how the determination was made whether documents were considered
responsive; and (3) attest that all disciplinary records for
each of the defendants has been produced to the plaintiff or the
Court. See Doc. #90. at 4.
In response, counsel for defendants submitted an affidavit
from Dawn DiCesare, who conducted the search for responsive
documents. See Doc. #95-2. In her affidavit, Ms. DiCesare states
that she searched for responsive records in defendants’
personnel files and the disciplinary log maintained by the
Department of Corrections, and found no responsive documents.
Id. at 2. After Ms. DiCesare reported that there were no
responsive documents, a human resources staff member recalled a
non-disciplinary resolution involving one of the defendants, and
contacted her. Id. at 3. After discovering records of that
matter, counsel for defendants submitted them for in camera
review.
DISCUSSION

I.

Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets

forth the scope and limitations of permissible discovery:

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Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009).
Generally, in a section 1983 case such as this,
“[d]isciplinary records involving complaints of a similar
nature, whether substantiated or unsubstantiated, could lead to
evidence that would be admissible at trial and thus, are
discoverable.” Frails v. City of New York, 236 F.R.D. 116, 11718 (E.D.N.Y. 2006) (alterations added) (compiling cases); see
also Linares v. Mahunik, No. 9:05CV00625(GTS)(RFT), 2008 WL
2704895, at *3 (N.D.N.Y. July 7, 2008) (“To the extent other
inmates’ grievances or complaints allege conduct similar to that
alleged in the Complaint, and were similarly directed against
any of the named defendants, the documents sought may well yield
information relevant to [plaintiff’s] claims, and such documents
are therefore discoverable.” (collecting cases)). Additionally,
“[a] civil rights plaintiff is entitled to prove by extrinsic
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evidence that the defendant acted for the purpose of causing
harm[] ... [and] where malicious, aggravated conduct is
purportedly involved, reports of this conduct are admissible.”
Lombardo v. Stone, No. 99CV4603(SAS), 2002 WL 113913, at *6
(S.D.N.Y. Jan. 29, 2002) (internal citations and quotation marks
omitted).
II.

Motion for Order Compelling Discovery [Doc. #79]
Defendants argue that only records of “disciplinary

actions” are responsive to plaintiff’s request for “disciplinary
records.” See Doc. #95 at 4-5. The documents provided for in
camera review fall under Department of Corrections
Administrative Directive 2.6, Employee Discipline, section 5,
Non-Disciplinary Resolution which provides:
Informal discussions, coaching and formal counseling
shall be used whenever practicable and shall not be
considered
disciplinary
action.
...
However,
disciplinary action shall be taken when it is determined
further training and counseling would not be effective
or the incident is of such magnitude that disciplinary
action is required. Records of coachings and counselings
may be maintained by supervisors for evaluation
purposes. Records of coachings and counselings shall not
be placed in employee personnel files.”
(emphasis added).
Defendants argue that based on this definition, the records
submitted for in camera review are not “disciplinary records.”
See Doc. #95 at 5. However, Directive 2.6 does not state that
records of informal discussions, coaching, and formal counseling

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are not “disciplinary records”; only that such resolutions are
not “disciplinary action.” Directive 2.6 deals with employee
discipline, and section 5 allows for non-disciplinary resolution
of minor incidents. However, records of incidents which are
minor enough not to trigger formal disciplinary action, but
serious enough to trigger informal discussions, coaching, or
formal counseling and be kept for evaluation purposes, may be
considered “disciplinary records.”
Accordingly, on or before December 21, 2017, defendants
shall produce to plaintiff any records in their possession or
control of any performance evaluations that reference any
allegation that the defendant deprived an inmate of a fair
investigation and hearing, or improperly designated an inmate as
a security risk group threat member from 2010 to the present.
The Court has reviewed the records defendants submitted for
in camera review. Because the records do not involve allegations
similar in nature to the conduct alleged in the complaint, they
are not relevant and are not discoverable in this matter.
Accordingly, for the reasons stated, the Court GRANTS, in
part, and DENIES in part, as stated above, plaintiff’s Motion to
Compel Discovery with respect to Request No. 6.
III. Motion to Compel Custodial Affidavit [Doc. #90]
Plaintiff seeks to compel an affidavit that would (1)
Describe how the search for documents responsive to request No.
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6 was performed; (2) explain how the determination was made
whether documents were considered responsive; and (3) attest
that all disciplinary records for each of the defendants has
been produced to the plaintiff or the Court. The affidavit
defendants provided from Ms. DiCesare satisfies the first two
requests, as to the previous search for responsive documents,
rendering them moot.
Defendants shall provide an affidavit describing how the
search for records of performance evaluations referencing nondisciplinary resolutions is performed, and explain how a
determination is made as to whether documents are responsive.
The affidavit will attest that all relevant disciplinary records
and all relevant records of performance evaluations in the
defendants’ possession or control from 2010 through the present,
have been produced to plaintiff or the Court.
CONCLUSION
Accordingly, the Court: GRANTS, in part, and DENIES, in
part, plaintiff’s Motion to Compel Discovery Request [Doc. #79];
and GRANTS, in part, and DENIES, in part, plaintiff’s Motion to
Compel a Custodial Affidavit.

[Doc. #90].

This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
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Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the district judge upon motion
timely made.
SO ORDERED at New Haven, Connecticut this 20th day of
November 2017.

/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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