Edwards v. Schoenig et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
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,
Mark Edwards, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
SEYBERT, District Judge:
plaintiff Mark Edwards’ (“Plaintiff”) objections to Magistrate
Judge Gary R. Brown’s September 27, 2013 Memorandum and Order
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
I. Factual Background
Plaintiff commenced this action on November 9, 2005
against corrections officers at the Nassau County Correctional
threatened and assaulted him in his cell in the BMU and denied
cell on August 13, 2004, and that Schoenig spread rumors to
According to Plaintiff, in the following days, other officers
teased and made fun of him.
(Compl. ¶ 15.)
mercilessly beat Plaintiff causing him to suffer several serious
The Court has summarized only those facts relevant to
Plaintiff’s pending objections.
fractured jaw, and a broken nose.
(Compl. ¶¶ 16-17.)
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.
¶¶ 39, 42-47.)
II. Procedural Background
Management Unit Inmate Rules Regulations and Information (“BMU
Policy”)--which describes fundamental protocols of the BMU--with
On January 24, 2013, Plaintiff filed a
motion before Judge Brown seeking “an in camera review of the
defendants to comply by disclosing the redacted BMU Policy &
Procedure pages . . . .”
112, at 1.)
(Pl.’s Mot. to Compel, Docket Entry
He argued that the redacted information “is likely
countered that the law enforcement privilege applies to protect
(Defs.’ Opp. to Mot. to Compel, Docket Entry
Defendants summarized that the redacted portions include:
“(1) issues of Corrections Department supervision of the BMU,
restraint and escort of BMU inmates through the facility and
(Defs.’ Opp. to Mot. to Compel at 2.)
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.
corrections officers’ responsibilities concerning inmate medical
care and distribution of medication.
(BMU Order at 5.)
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
(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
respective security duties; the protocols for restraining and
transporting BMU inmates; and the rules governing utilization of
(BMU Order at 6.)
He further held that there
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.)
(Pl.’s Mot. to Appoint Expert,
Judge Brown denied this motion in his
necessary conditions for appointment of an expert.
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).
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
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
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.)
The Court disagrees.
The Court can find no clear error in Judge Brown’s BMU
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).
techniques and procedures (BMU Order at 5-6) and then considers
(BMU Order at 6.)
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
available through other discovery or sources, and (3) that the
information sought is important to the party’s case); Dorsett v.
(same), aff’d, 800 F. Supp. 2d 453 (E.D.N.Y. 2011).
analysis, Judge Brown properly held that the law enforcement
dealing with law enforcement techniques and procedures.
holding that Plaintiff’s conclusory assertions that the redacted
portions of the BMU Policy are necessary is insufficient to make
corrections officers in a given facility.
See Dorsett, 762 F.
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.
(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
Plaintiff’s objections in this regard are OVERRULED and Judge
Brown’s BMU Order is AFFIRMED.
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
appointment is discretionary and should be granted sparingly).
Here, Plaintiff’s motion simply requested the appointment of a
(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
evidence and a jury does not need a doctor to orally testify to
For the forgoing reasons, Plaintiff’s objections are
The Court notes that that the present case has been
trial ready since September 6, 2012, despite that fact that
conference and to set this case down for trial.
§ 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.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
16 , 2014
Central Islip, NY
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