Torrez v. Mulligan et al

Filing 66

ORDER denying without prejudice 35 Motion to Compel; denying without prejudice 42 Motion for Disclosure; denying without prejudice 43 Motion for Prejudgment Remedy; denying 44 Motion for Order; denying 45 Motion for Sanctions; denying without prejudice 46 Motion for Default Entry 55(a); denying without prejudice 46 Motion to Compel; granting 47 Motion for Conference; denying as moot 52 Motion for Order; denying without prejudice 56 Motion for Disclosure; denying wit hout prejudice 56 Motion for Prejudgment Remedy; denying without prejudice 57 Motion to Compel; denying without prejudice 59 Motion to Compel; granting 62 Motion for Conference; granting 64 Motion for Conference.. Signed by Judge Stefan R. Underhill on 1/22/18. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE ANTHONY TORREZ,
Plaintiff,
v.
WILLIAM MULLIGAN, et al.,
Defendants.

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Case No. 3:17-cv-677 (SRU)

RULINGS ON PENDING DISCOVERY MOTIONS
On April 24, 2017, the plaintiff, Jose Anthony Torrez (“Torrez”), an inmate currently
confined at MacDougall-Walker Correctional Institution in Suffield, Connecticut, filed a civil
action under 42 U.S.C. § 1983 against several Department of Correction (“DOC”) officers and
medical staff for various constitutional violations while he was housed at Northern Correctional
Institution (“Northern”). On June 6, 2017, I issued my Initial Review Order permitting his
claims for excessive force, failure to protect, and conditions of confinement to proceed against
five defendants: Officer Laprey, Lieutenant James Delpesio, Captain Parfumi, Barbara Savoie,
and Nurse Balatka. Torrez has since filed multiple motions with the court pertaining to
discovery. I enter the following orders with respect to each motion:
I. Motions for Prejudgment Disclosure and Remedy (Doc. Nos. 42, 43, 56)
On September 12, 2017, Torrez filed a motion for prejudgment disclosure of property and
assets (Doc. No. 42) and an application for a prejudgment remedy (Doc. No. 43). In support
thereof, he argued there is “probable cause that a judgment will be rendered in” his favor and
relies on CONN. GEN. STAT. § 52-278. He seeks a prejudgment remedy in the amount of
$150,000. The defendants counter that there is no reasonable basis for the court to conclude that
judgment will be entered in Torrez’s favor and that Torrez has failed to comply with the

requirements of section 52-278. Defs.’ Obj. (Doc. No. 51). After the defendants submitted their
response, Torrez filed another motion for prejudgment disclosure of assets and application for
prejudgment remedy (Doc. No. 56), in which he raised the same arguments as his two prior
motions. For the following reasons, I will deny all three motions without prejudice.
Federal Rule of Civil Procedure 64 permits a plaintiff to utilize the state prejudgment
remedies available to secure a judgment that might ultimately be rendered in an action. See
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda
Cty., 415 U.S. 423, 436 (1974); Cordoba Shipping Co., Ltd. v. Maro Shipping, Ltd., 494 F. Supp.
183, 186 (D. Conn. 1980). The Connecticut prejudgment remedy statute “provides that a
plaintiff suing for a money judgment may attach a defendant’s real or personal property during
litigation, if the plaintiff follows the statutory procedures designed to protect the defendant.”
Cordoba, 494 F. Supp. at 186.
Section 52-278c sets forth the documents that a plaintiff must file with the court to secure
a prejudgment remedy, one of which is an affidavit “sworn to by the plaintiff or any competent
affiant setting forth a statement of facts sufficient to show that there is probable cause that a
judgment in the amount of the prejudgment remedy sought . . . will be rendered in the matter in
favor of the plaintiff.” Conn. Gen. Stat. § 52-278c(a)(2).
Torrez has not complied with the requirements of section 52-278c. He has not submitted
the affidavit required by section 52-278c(a)(2). The court at this time has no reasonable basis to
conclude that a judgment will be entered in Torrez’s favor. Therefore, Torrez’s motions for
prejudgment disclosure of assets and remedy (Doc. No. 42, 43, 56) are denied without prejudice.

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II. Motions to Compel Discovery (Doc. Nos. 35, 46, 57, 59)
Torrez has filed four motions to compel the production of several documents and
evidentiary items (Doc. Nos. 35, 46, 57, 59). He lists twenty-one items that he requested from
the defendants, including “all documents and communications concerning [Torrez] . . . all
incident reports involving [Torrez] . . . all videos, photographs, or telephone recordings of
[Torrez] at Northern . . . [and] all policies, procedures, directives, and/or guidelines concerning
UConn Correctional Managed Healthcare and [Northern] Directives.” Mot. to Compel Disc.
(Doc. No. 59). The defendants argue that (1) Torrez has failed to comply with the federal rules
regarding discovery, (2) they responded to Torrez’s discovery requests on September 27, 2017
and again on October 27, 2017, and (3) Torrez’s requests are overbroad, and he can readily
access his own files directly from DOC. Defs.’ Resp. to Pl.’s Mot. to Compel Disc. (Doc. No.
61). For the following reasons, Torrez’s motions to compel are denied without prejudice.
Local Rule 37(b) requires that memoranda be filed by both sides before any discovery
motion is heard by the Court. “Each memorandum shall contain a concise statement of the
nature of the case and a specific verbatim listing of each of the items of discovery sought or
opposed, and immediately following each specification shall set forth the reason why the item
should be allowed or disallowed.” D. Conn. L. Civ. R. 37(b)(1). The movant must attach to his
memorandum, as exhibits, copies of the discovery requests in dispute. Id.
Federal Rule of Civil Procedure 26(b)(1) provides that a party:
[M]ay obtain discovery regarding any nonprivileged matter that is relevant to
[his] 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
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within this scope of discovery need not be admissible in evidence to be
discoverable.
“[A] party claiming that a request is important to resolve the issues should be able to explain the
ways in which the underlying information bears on the issues as that party understands them.
The court's responsibility, using all the information provided by the parties, is to consider these
and all the other factors in reaching a case-specific determination of the appropriate scope of
discovery.” Harnage v. Barrone, 15 Civ. 1035 (AWT), 2017 WL 3448543, *4 (D. Conn. Aug.
11, 2017) (quoting Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment).
Nevertheless, “[t]he party resisting discovery bears the burden of showing why discovery should
be denied.” Id. (internal quotations omitted).
In this case, I agree with the defendants that Torrez’s discovery requests are overbroad
and include information that is not relevant to the issues of the case. The remaining legal claims
to be decided are the excessive force claims against Laprey and Delpesio, the failure to protect
claim against Delpesio, Savoie, Balatka, and Pafumi, and the conditions of confinement claim
against Savoie and Balatka. Initial Review Order at 12 (Doc. No. 14). All three of those claims
stem from a single incident on July 3, 2016. Id. at 2. Torrez’s discovery requests extend well
beyond that incident, including documents related to his transfer to Northern, his complete
medical history, and all communications, videos, reports, grievances, and audio recordings
related to his stay at Northern. Torrez has not sufficiently explained how all of that material is
relevant to the incident on July 3, 2016 that gave rise to his complaint, and compelling the
defendants to answer all of his requests would be unduly burdensome. See Harnage, 2017 WL
3448543, *10 (dismissing prisoner’s discovery request as overbroad in scope); Young v. McGill,
09 Civ. 1186 (CSH), 2013 WL 5962090, *5 (D. Conn. Nov. 6, 2013) (inmate’s request for
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“medical grievances” without further definition or dates vague and overbroad); Goode v.
Faneuff, 04 Civ. 1524 (WWE) (HBF), 2006 WL 2401593, *2 (D. Conn. Aug. 18, 2006) (denying
prisoner’s motion to compel based on prisoner’s failure to explain relevancy of broad discovery
requests). Therefore, Torrez’s motions to compel the defendants to answer his discovery
requests (Doc. Nos. 35, 46, 57, 59) are denied without prejudice subject to refiling at a later stage
of litigation. Torrez is advised to limit his discovery requests to material relevant to his
excessive force, failure to protect, and conditions of confinement claims and that any future
motion to compel must comply with the requirements of Fed. R. Civ. P. 37(a) and Local Rule
37(b) as explained above.
III. Motion to Order Physical and Mental Examination (Doc. No. 44)
On September 12, 2017, Torrez filed a motion for the court to order a physical and
mental examination of him in light of the injuries he sustained from Laprey on July 3, 2016. He
argues that prison medical staff refuse to order an M.R.I. to evaluate any mental ailments from
which he currently suffers. The defendants argue that Fed. R. Civ. P. 35 does not authorize the
court to grant a party’s motion for his own physical and/or mental examinations. Defs.’ Obj.
(Doc. No. 51). I agree with the defendants and deny Torrez’s motion.
“Rule 35 . . . does not authorize a party to file a motion for his own physical
examination.” Jenkins v. Doe, 09 Civ. 1194 (SRU) (WIG), 2011 WL 121682, *1 (D. Conn. Jan.
13, 2011) (citing Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997)). It allows a court to
order a party to submit to an examination at the request of the opposing party. See id. (citing
Lindell v. Daley, 02 Civ. 459-C, 2003 WL 23111624, *1-2 (W.D. Wis. Jun. 30, 2003)); see also
Ross v. Bilow, 100 F.3d 941, *1 (2d Cir. 1996) (district court denied prisoner’s motion to compel

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defendant correction officer to submit to mental examination under Rule 35). In Jenkins, as in
this case, the prisoner sought an order from the court for the defendant to produce for him a
medical examination and M.R.I., which the court denied because Rule 35 does not permit such
an order. Jenkins, 2011 WL 121682, *1. In addition, a party seeking a medical examination
must bear the cost of the examination, and the granting of in forma pauperis status for that party
does not authorize payment of discovery expenses by the court. Benitez v. Choinski, 05 Civ. 633
(JCH) (HBF), 2006 WL 276975, *2 (D. Conn. Feb. 2, 2006).
For the foregoing reasons, Torrez’s motion to order a physical and mental examination
(Doc. No. 44) is denied.
IV. Motion for Sanctions Against Defendants (Doc. No. 45)
On September 18, 2017, Torrez filed a motion for sanctions against Dr. Mark Frayne,
who he claims is a potential witness in this case, for filing a false affidavit. The defendants
secured an affidavit from Dr. Frayne (Doc. No. 32-1) in support of their response to Torrez’s
motions for a preliminary injunction (Doc. No. 11) and “writ of mandamus” (Doc. No. 12). I
cannot impose any sanctions on Dr. Frayne, who is not a party to this case. See Toliver v.
Fischer, 12 Civ. 77 (MAD/ATB), 2015 WL 403133, *10 (N.D.N.Y. Jan. 29, 2015) (denying
prisoner’s request for sanctions against correction officer who is not party to case). Therefore,
Torrez’s motion for sanctions (Doc. No. 45) is denied.
V. Motion for Pretrial Conference (Doc. Nos. 47, 62, 64)
Torrez filed three motions seeking a pretrial settlement conference with the court and the
defendants. Those motions (Doc. Nos. 47, 62, 64) are granted. Defense counsel shall arrange
for a telephonic status conference on Tuesday, February 13, 2018 at 1:00 pm. That call will

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address possible settlement as well as the plaintiff’s latest Motion to Compel and Motion for
Sanctions (Doc. No. 63).
VI. Motion for Ruling and Order (Doc. No. 52)
On October 10, 2017, Torrez filed a motion seeking rulings on his motions for a
prejudgment remedy (Doc. Nos. 42, 43), motion for physical and mental examination (Doc. No.
44), motion for sanctions (Doc. No. 45), and motion for pretrial settlement conference (Doc. No.
47). In light of my rulings on these motions, which are outlined above, the “Motion for Ruling
and Order” (Doc. No. 52) is denied as moot.
SO ORDERED at Bridgeport, Connecticut this 22nd day of January 2018.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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