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)

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