Taylor v. Swift et al

Filing 131

DECISION & ORDER denying 118 Motion to Compel; denying 118 Motion for Sanctions; denying 118 Motion to Amend/Correct/Supplement. See annexed order for details. c/m to pro-se plaintiff. Ordered by Magistrate Judge Viktor V. Pohorelsky on 1/12/2014. (Newton, Joan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROY TAYLOR,
Plaintiff,
DECISION AND ORDER
-vCV-12-5623 (JBW)(VVP)
C.O. BENBOW, et al.,
Defendants.
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This action arises from incidents that occurred at Riker’s Island while the plaintiff was
incarcerated there. The two claims that remain, following the court’s rulings on the
defendants’ motion to dismiss, are described in Judge Weinstein’s Memorandum & Opinion
dated May 20, 2014 [Dkt. Ent. 89]. Briefly stated they are a failure-to-protect claim made
against two correction officers, Morgan and Ballart, who allegedly did not take appropriate
action to prevent the plaintiff from injury during an assault by Crips gang members, and an
excessive use of force claim against a different correction officer, Benbow, arising from
injuries allegedly suffered by the plaintiff while being uncuffed by Benbow.
In a submission dated October 27, 2014 and filed on November 5, 2014, which
consists of a handwritten letter [Dkt. Ent. 118], a typewritten motion entitled Motion to
Compel and Sanction [Dkt. Ent. 118-1], and a series of typewritten requests for discovery
styled as motions [Dkt. Ent. 118-2], the plaintiff seeks various forms of relief from the court
and various items of discovery from the defendants. The defendants have responded to the
submission with a Declaration by their counsel [Dkt. Ent. 121] and a Memorandum of Law
[Dkt. Ent. 122]. On the basis of the submissions, as well as prior proceedings, the court
makes the following rulings on the various requests for relief made by the plaintiff.

Relief Requested in the Plaintiff’s Handwritten Letter
The plaintiff’s handwritten letter [Dkt. Ent. 118] first asks for “Declarations” made by
the defendants’ counsel at a hearing which the plaintiff contends was held before Judge
Weinstein out of his presence. The hearing purportedly concerned the failure-to-protect and
exhaustion issues. There is no indication in the record, however, that Judge Weinstein
conducted any hearing or other proceedings out of the plaintiff’s presence.1 Nor have I
located any Declarations by the defendants’ counsel concerning those issues that were not
served on the plaintiff and made part of the record. I am therefore unable to discern what
the plaintiff is requesting, and can afford no relief.
The plaintiff’s handwritten letter next seeks the production of documents and
information, apparently in anticipation of a further amended complaint that the plaintiff
wishes to file which will name an additional correction officer as a defendant. Specifically,
the plaintiff asks for a copy of “Exhibit A in the records on file in my case filed with the
original 1983.” (I interpret the phrase “original 1983” to refer to the plaintiff’s complaint
alleging claims under section 1983.) Exhibit A purportedly identifies the correction officer
who made an announcement to an assemblage of inmates which, according to the plaintiff,
led to the Crips gang attack that underlies his failure-to-protect claim. The court, however,
has found no Exhibit A attached to any of the four complaints the plaintiff has thus far filed,

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The plaintiff is incarcerated, but has participated in proceedings by telephone.
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see Dkt. Ents. 1, 6, 26, 105, and is therefore unable to provide anything in response to this
request.2
The plaintiff’s letter next requests production of correspondence apparently directed
to the Department of Corrections by a Prisoner Rights Project representative concerning the
incident which may also identify the correction officer. Should such correspondence exist,
the defendants are directed to produce it, not only because it may provide the officer’s
identity, but also because it may contain other information about the incident that would lead
to evidence admissible at trial. In view of the failure by the Department of Corrections to
locate documents related to the incident, the correspondence (if it exists) may have particular
significance.
The plaintiff’s letter also reargues issues related to policy directives requested by the
plaintiff that were previously addressed by me in a conference, and in a Memorandum
Decision dated December 30, 2014. Nothing in the plaintiff’s letter convinces me to alter
my decisions concerning those matters.
Finally, the plaintiff asks to further amend the complaint to add corrections officers,
including the security officer he is seeking to identify, and argues for sanctions to be imposed
on the defendants for discovery abuses. Both of those matters are also the subject of the
plaintiff’s typewritten motion, see Dkt. Ent. 118-1, and are addressed below.

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The plaintiff’s letter also suggests that the name of the correction officer is contained in a
motion or correspondence apparently filed somewhere in the record. Without more specificity, the
court is unable to locate any such documents.
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The Plaintiff’s Motion to Compel and Sanction and For Permission to Amend
Appended to the plaintiff’s handwritten letter is a typewritten motion requesting that
the court sanction the defendants for discovery abuses, and seeking permission to amend the
complaint to add as a defendant a correction officer identified as Captain Devon Mitchell.
Dkt. Ent. 118-1.
The sanctions motion seeks the entry of a default judgment against the defendants
because of various discovery deficiencies including the production of “darkened” and
“unreadable” photographs and documents, the failure to produce a copy of a video recording
of one of the incidents in question, and the failure to produce the entire investigatory and
disciplinary records relating to both of the incidents in question. The defendants have
provided adequate responses to the claimed deficiencies cited by the plaintiff, however. As
to the allegedly unreadable documents, the defendants’ counsel is obtaining better copies of
both the photographs and the documents, including actual photographs (rather than
photocopies of photographs) if they can be made. As to the investigatory and disciplinary
records relating to the incidents in question, the defendants have produced what they have
been able to locate and acknowledge that they have been unable to locate most of the
materials relating to the May 24, 2012 incident. In compliance with the court’s order, the
defendants have produced an affidavit by the person responsible for producing the
documents concerning the various areas of Riker’s Island that have been searched in an
effort to locate the missing files.3 Finally, as to the video recording the plaintiff seeks, the
3

The affidavit was signed by Captain Allen Gaines, the supervisor of the search efforts, who
attested that searches were made in the following locations at Riker’s Island: the GRVC Security
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defendants’ counsel has received confirmation from the prison facility where the plaintiff is
currently held that his possession of a video recording would be considered contraband, and
has therefore refrained from sending it to him. The recording will, however, be provided to
him upon his release from prison (expected in March 2015), along with an audio recording of
the disciplinary proceeding concerning one of the incidents which has also been located.
The plaintiff asks that the court require various officials of the Corrections
Department to appear in court to testify about the failure to produce the items of discovery
that have not been located. Specifically, he identifies the following persons who should be
produced: GRVC Warden Edmund Duffy (the warden of the housing unit where he was
held, Associate Deputy Warden Kenneth Stukes, Disciplinary Captain Medina, and the
liaison at Riker’s Island in charge of gathering records for production in this litigation. As
for Duffy and Stukes, the only knowledge the plaintiff has attributed to them about items of
discovery he has requested is the video recording which, as indicated above, will be produced
to him once he is released from incarceration. As for Medina, according to the plaintiff his
involvement in the events at issue was limited to his adjudication of the disciplinary hearing
concerning the uncuffing incident that underlies his excessive use of force claim. As the
records of that proceeding have been produced, there is no reason to have Median appear to
explain their whereabouts. Finally, since the liaison was simply a person who gathered the
records, and since an affidavit has now been produced that explains all of the searches that

Office, the archives in the basement, the Hearing Office, the Investigation Office, the Inmate
Information System, the Operations Security Intelligence Unit and the Adjudication Unit.
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were made to locate the records, testimony by the liaison is unlikely to provide any additional
information.
In view of the above, as well as my review of other discovery responses provided by
the defendants, see Dkt. Ent. 109, I find no basis at this time for the imposition of any
sanction on the defendants, much less the harsh sanction of a default judgment as requested
by the plaintiff.
The plaintiff also requests permission to amend the complaint yet again in order to
add correction officer Devon Mitchell as a defendant. The plaintiff alleges that Mitchell
failed to properly investigate both of the incidents that underlie his claims, and that he
coerced inmates into providing false statements about what occurred. At a conference held
on December 18, 2014, I gave the plaintiff specific directions as to how to make a motion to
add and additional claims he wishes to make, including claims against Mitchell. Those
directions were also set forth in a calendar entry that was mailed to him, which also set a
schedule for opposition by the defendants and a reply by the plaintiff. See Dkt. Ent. 125.
Whether or not the plaintiff will be allowed to amend the complaint further will depend on
the court’s decision on that motion.

The Plaintiff’s Motion for Admissions and for Production of Documents
Also annexed to the plaintiff’s handwritten letter are a series of typewritten
documents, styled as motions, that include requests for admissions, document requests and
interrogatories. Dkt. Ent. 118-2. It appears that some of these are new sets of requests for
discovery, although some of the items were also the subject of earlier requests made by the

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plaintiff. In their opposition to the plaintiff’s submission the defendants have set forth their
position with respect to each of the requests. See Dkt. Ent. 122. Set forth below are the
court’s rulings on each of the requests:
Requests for Admissions (found at pages 1-2 of Dkt. Ent. 118-2)
Having reviewed the defendants’ responses and objections (found at pages 9 and 10
of Dkt. Ent. 122), I find that the objections to Requests 1-3, 7, and 8 are appropriate and
they are sustained. The remainder of the responses either admit or deny the requested
admissions, or provide a proper reason for being unable to admit or deny the admission.
The responses are therefore sufficient and proper. See Fed. R. Civ. P. 36(a)(4).
Requests for Production of Documents (found at pages 2-3 of Dkt. Ent. 118-2)
Having reviewed the defendants’ responses and objections (found at pages 10-13 of
Dkt. Ent. 122), I find as follows:
Requests 1, 2, 3, 6(b), 7 and 10 – The defendants’ responses to requests are sufficient
in that the defendants have produced, or will produce, all documents that are
responsive to those requests to the extent they can be located.
Request 4 – The defendants’ objection to this request, which seeks the training
manual concerning the use of force, is sustained on grounds of lack of
relevance. The defendants have already produced the directive requested by
the plaintiff concerning the use of force and the plaintiff has made no
allegation that the defendants’ training concerning the use of force was
inadequate.

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Requests 5 and 6(a) – The defendants’ objection to these requests, which seek photo
arrays of all Crips inmates and of all correctional officers on duty on May 23
and 24, 2012, on grounds of lack of relevance and burdensomeness is
sustained.
Request 8 – The objection to this request, which seeks production of the person who
prepared and copied the discovery produced thus far, is sustained. As
explained earlier, the defendants have produced an affidavit from the person
in charge of gathering responses to the plaintiff’s discovery requests.
Request 9 – The defendants’ response to this request is sufficient inasmuch as they do
not possess a document that contains the information requested.
Requests for Production of Documents and Interrogatory (found at page 4 of Dkt. Ent. 118-2)
These requests were previously filed as Dkt. Ent. 107 and the defendants addressed
them in a letter dated October 20, 2014, filed as Dkt. Ent. 109, under the heading “Motion
to Compel.” In addition, they were addressed during a conference held on October 23,
2014. Having reviewed the requests and responses, I find as follows:
Request 1 – The defendants’ objection on grounds of lack of relevance is sustained as
records concerning individuals who made legal visits to the plaintiff in 2011
and 2012 have no connection to the claims that remain in this action.
Request 2 – The defendants need not produce color photo arrays of all security
officers on duty on May 23 and 24, 2012.

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Requests 3 through 5 – The defendants are required to produce these items, to the
extent that they can be located. It is the court’s understanding, however, that
the requested items have not been found.
Interrogatory – The defendants’ objection to this interrogatory is sustained as it ask
for information concerning the defendants’ attorney.
“Amended” Motion for Interrogatories (found at pages 5-6 of Dkt. Ent. 118-2)
No rulings are required as to this aspect of the plaintiff’s submission as the defendants
have responded in writing to the interrogatories and the plaintiff has not identified any
deficiency in the responses.
The remainder of the plaintiff’s submission consists of photocopies of
correspondence concerning discovery requests that have been addressed in the rulings above
or in the court’s previous Memorandum Decision, Dkt. Ent. 126. They therefore require not
further rulings.
The plaintiff has the right to appeal from this Decision and Order. To do so he must
file a letter addressed to Judge Weinstein with the clerk’s office stating his objections to the
decision. The letter must be filed within 14 days after he has received this Decision and
Order.
SO ORDERED:

Viktor V. Pohorelsky
VIKTOR V. POHORELSKY
United States Magistrate Judge
Dated:

Brooklyn, New York
January 12, 2015

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