Edwards v. Schoenig et al

Filing 125

MEMORANDUM AND ORDER; For the forgoing reasons, Plaintiff's objections are OVERRULED and Judge Brown's Orders are AFFIRMED in their entirety. Accordingly, the Court is prepared to hold a pre-trial conference and to set this case down for tr ial. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 9/16/2014. C/M; C/ECF (Valle, Christine)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X MARK EDWARDS, Plaintiff, -against- MEMORANDUM & ORDER 05-CV-5427(JS)(GRB) LT. SCHOENIG, SGT. STASKY, C.O. GARAFOLO, C.O. RANT, C.O. ARMINI, C.O. WHITE, C.O. PU, C.O. ROMAN, NASSAU COUNTY UNIVERSITY MEDICAL CENTER, DR. JOHN DOE (with a foreign accent), C.O. B. SHEFTIC, (all in their individual as well as official capacities), and NASSAU UNIVERSITY MEDICAL CENTER, Defendants. ---------------------------------------X APPEARANCES For Plaintiff: Mark Edwards, pro se Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021 For Defendants: Liora M. Ben-Sorek, Esq. Nassau County Attorney’s Office One West Street Mineola, NY 11501 SEYBERT, District Judge: Currently pending before the Court are pro se plaintiff Mark Edwards’ (“Plaintiff”) objections to Magistrate Judge Gary R. Brown’s September 27, 2013 Memorandum and Order granting in part and denying in part Plaintiff’s motion to compel discovery regarding a Behavior Management Unit (“BMU”) written policy (the “BMU Order,” Docket Entry 119) and Judge Brown’s electronic order from the same day denying Plaintiff’s motion to appoint an expert witness (Sept. 27, 2013 Electronic Order (the “Electronic Order”)). For the following reasons, Plaintiff’s objections are OVERRULED and Judge Brown’s rulings are AFFIRMED. BACKGROUND1 I. Factual Background Plaintiff commenced this action on November 9, 2005 against corrections officers at the Nassau County Correctional Center and alleging, two inter medical alia, centers that the (collectively corrections “Defendants”) officers verbally threatened and assaulted him in his cell in the BMU and denied him adequate Specifically, Schoenig medical attention. Plaintiff confronted and (Compl. alleges verbally 38-48.) Corrections that ¶¶ 16, Officer threatened Plaintiff in his cell on August 13, 2004, and that Schoenig spread rumors to other officers about what occurred. (Compl. ¶¶ 14, 15.) According to Plaintiff, in the following days, other officers teased and made fun of him. Plaintiff Schoenig, along further with (Compl. ¶ 15.) alleges Corrections that Officers on August Rant and 24, 2004, Garafolo, mercilessly beat Plaintiff causing him to suffer several serious injuries including a black eye, bruised leg, bruised The Court has summarized only those facts relevant to Plaintiff’s pending objections. 1 2 elbow, fractured jaw, and a broken nose. (Compl. ¶¶ 16-17.) Plaintiff claims that several of his requests to see a doctor and to receive painkillers were ignored, and that as a result he is partially incapacitated and mentally unstable. (Compl. ¶ 20.) Plaintiff asserts that when he did get medical attention, he was referred to the emergency room where a doctor filled out “fit for confinement” papers before examining Plaintiff and sent him back to jail without a full examination or painkillers. (Compl. ¶¶ 39, 42-47.) II. Procedural Background During Defendants the provided course Plaintiff of discovery with a copy on of this the matter, Behavioral Management Unit Inmate Rules Regulations and Information (“BMU Policy”)--which describes fundamental protocols of the BMU--with particular redactions. On January 24, 2013, Plaintiff filed a motion before Judge Brown seeking “an in camera review of the redactions in question, or a simple order compelling the defendants to comply by disclosing the redacted BMU Policy & Procedure pages . . . .” 112, at 1.) to case be . used . . (Pl.’s Mot. to Compel, Docket Entry He argued that the redacted information “is likely as .” evidence (Pl.’s or critical Mot. to Compel information at 1.) in this Defendants countered that the law enforcement privilege applies to protect that information. (Defs.’ Opp. to Mot. to Compel, Docket Entry 3 113.) Defendants summarized that the redacted portions include: “(1) issues of Corrections Department supervision of the BMU, including but Corrections not limited Personnel, and to the the numbers duties of and placement Personnel; (2) of the restraint and escort of BMU inmates through the facility and during activities; (3) the utilization of video cameras.” (Defs.’ Opp. to Mot. to Compel at 2.) On September 27, 2013, Judge Brown issued the BMU Order granting in part and denying in part Plaintiff’s request that he be provided a full, unredacted copy of the BMU Policy. Judge Brown held that Defendants should unredact Paragraph 1.c. of Section V, subsection B, which sets forth the BMU’s corrections officers’ responsibilities concerning inmate medical care and distribution of medication. (BMU Order at 5.) He held that this portion appropriately related to Plaintiff’s medical indifference claim and that the information did not present an obvious danger to law enforcement such that it should be kept confidential. (BMU Order at 5.) However, Judge Brown found that the law enforcement privilege applied to the other redacted portions of the BMU Policy because those portions “reveal the number and distribution of corrections officers and their respective security duties; the protocols for restraining and transporting BMU inmates; and the rules governing utilization of video cameras.” (BMU Order at 6.) 4 He further held that there appears to be little merit to Plaintiff’s claims that the relevant information in the BMU Policy can be made available through other means, and that “[t]he importance of the redacted portions of the BMU Policy to plaintiff’s excessive force claim is . . . attenuated.” (BMU Order at 6-7.) Additionally, and separate from any issue regarding the BMU Policy, Plaintiff “move[d] [on May 15, 2013] to request the appointment of a medical expert for trial testimony, or that the defendants be ordered to show cause why an expert witness should not be appointed . . . .” Docket Entry 115, at 1.) Electronic Order, holding (Pl.’s Mot. to Appoint Expert, Judge Brown denied this motion in his that Plaintiff failed necessary conditions for appointment of an expert. to meet the (Electronic Order.) DISCUSSION Plaintiff objects to the BMU and Electronic Orders. The Court will first review the applicable legal standard before turning to the merits of Plaintiff’s motion. I. Standard of Review District courts review nondispositive orders issued by a magistrate judge for clear error. FED. R. CIV. P. 72(a). “‘A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been 5 committed.’” Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d 279, 283 (E.D.N.Y. 2009) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993)). II. Plaintiff’s Objections The Court begins with Plaintiff’s objections regarding the BMU Order. Plaintiff again asserts that the redacted information is necessary to his claims and that the redactions do not allow him a reasonable opportunity to discover relevant information and evidence for trial purposes.2 Pl.’s Objs., Docket Entry 120, ¶¶ 1-10.) (See generally The Court disagrees. The Court can find no clear error in Judge Brown’s BMU Order. The appropriately contains Order cites begins by information relevant confirming concerning and that valid the privileged case redacted law law; it content enforcement Plaintiff also asserts that Judge Brown erred in discussing the Eighth Amendment because Plaintiff was a pre-trial detainee at the time of the incident. (Pl.’s Objs. ¶ 7.) This assertion, however, while it may be correct, does not change the Court’s analysis nor render the law enforcement privilege inapplicable. See DeBoe v. Du Bois, 503 F. App’x 85, 87 (2d Cir. 2012) (“We have equated the standard used for excessive force claims brought by detainees under the Fourteenth Amendment with that used to analyze Eighth Amendment excessive force claims, but we have also held that a detainee may set forth a constitutional due process violation by showing that indignities he suffered constituted punishment or involved an intent to punish.” (internal quotation marks and citations omitted)); United States v. Walsh, 194 F.3d 37, 47-48 (2d Cir. 1999) (applying same standard to excessive force claim regardless of whether the plaintiff was a pre-trial detainee). 2 6 techniques and procedures (BMU Order at 5-6) and then considers whether Plaintiff privilege applies. sufficiently refuted (BMU Order at 6.) the finding that the See Dinler v. City of N.Y., (In re The City of N.Y.), 607 F.3d 923, 945 (2d Cir. 2010) (requiring a showing that (1) the suit is non-frivolous and brought in good faith, (2) the information sought is not available through other discovery or sources, and (3) that the information sought is important to the party’s case); Dorsett v. Cnty. of Nassau, 762 F. Supp. 2d 500, 520 (E.D.N.Y. (same), aff’d, 800 F. Supp. 2d 453 (E.D.N.Y. 2011). 2011) Using this analysis, Judge Brown properly held that the law enforcement privilege protects the redacted portions of the BMU Policy dealing with law enforcement techniques and procedures. Once again, this Court reiterates Judge Brown’s holding that Plaintiff’s conclusory assertions that the redacted portions of the BMU Policy are necessary is insufficient to make public such information as the number corrections officers in a given facility. Supp. 2d at specifically enforcement 520 (noting encompasses techniques and that the and locations See Dorsett, 762 F. law enforcement “information pertaining procedures”). of In fact, privilege to law Plaintiff admits in his objections that the portion of the BMU Policy regarding “use of force,” which would be relevant to Plaintiff’s excessive force claim, has been provided in unredacted form. 7 (Pl.’s Objs. ¶ 8.) His conclusory assertion that additional portions of the BMU Policy are being “hidden to cover up the fact that the Defendants’ actions did not conform” to specific policies is information not enough accessible. to render (Pl.’s this Objs. ¶ highly 8.) sensitive Accordingly, Plaintiff’s objections in this regard are OVERRULED and Judge Brown’s BMU Order is AFFIRMED. As to Plaintiff’s Motion to Appoint an Independent Expert Witness, the Court also finds no clear error in Judge Brown’s Electronic Order. As Judge Brown points out in his Order, the appointment of an expert is not commonplace and is within the Court’s discretion. See In re Joint E. & S. Dists. Asbestos Litig., 830 F. Supp. 686, 693 (E.D.N.Y. 1993) (“The enlistment of court-appointed expert assistance under Rule 706 is not commonplace.”); Benitez v. Mallioux, No. 05-CV-1160, 2007 WL 836873, prisoner’s at *2 motion (N.D.N.Y. to appoint Mar. 15, 2007) an expert (denying witness pro because se such appointment is discretionary and should be granted sparingly). Here, Plaintiff’s motion simply requested the appointment of a medical expert. (See generally Pl.’s Mot. to Appoint Expert.) However, if, as Plaintiff claims, he was forcefully beaten and sustained serious injuries including a fractured jaw and broken bones, such injuries can be demonstrated through documentary evidence and a jury does not need a doctor to orally testify to 8 such regard matters. are Accordingly, OVERRULED and Plaintiff’s Judge Brown’s objections Electronic in this Order is AFFIRMED. CONCLUSION For the forgoing reasons, Plaintiff’s objections are OVERRULED and Judge Brown’s Orders are AFFIRMED in their entirety. The Court notes that that the present case has been trial ready since September 6, 2012, despite that fact that Judge Brown has entertained Accordingly, the Court is continued prepared discovery to hold a disputes. pre-trial conference and to set this case down for trial. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiff. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 16 , 2014 Central Islip, NY 9

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