McClurkin v. Suffolk et al

Filing 118

ORDER re 111 . SEE ATTACHED ORDER regarding video footage. Defendants' counsel is directed to serve this Order on the pro se Plaintiff forthwith by first-class mail and to file proof of such service on ECF by July 25, 2018. Ordered by Magistrate Judge A. Kathleen Tomlinson on 7/19/2018. (Tomlinson, A.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BRYAN MCCLURKIN,
Pro se Plaintiff,
-against-

ORDER
CV 15-5685 (JFB) (AKT)

COUNTY OF SUFFOLK, CHARLES WAGNER
#1225, EDWARD MASONE #961, Unnamed
Officer Assigned Shield # 216, and YAPHANK
And RIVERHEAD SERT TEAM,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
Judge Bianco referred to this Court the pro se Plaintiff’s letter motion [DE 111]
requesting video “footage of the incident on Feb. 18 2017.” See DE 112. In looking into this
issue, the Court notes that there have been numerous filings by the parties and multiple
corresponding Orders issued by the Court addressing what video footage Plaintiff is entitled to
and the manner in which he is to receive it. The Court summarizes these filings and Orders
below:
On January 30, 2017, the Court directed counsel for Defendants to meet with her clients
to determine if video footage exists for alleged events taking place on May 8, 2015, June 22,
2015, and January 28, 2016. See DE 33.
●

On February 21, 2017, Defendants’ counsel filed a letter stating that Defendants only
had video footage of an incident occurring on May 15, 2015. See DE 38.

●

On February 23, 2017, the Court issued an Electronic Order directing Defendants’
counsel to turn over a copy of the video footage depicting the May 15, 2015
incident.

●

On February 23, 2017, Plaintiff filed a letter to Judge Bianco describing a new
incident of alleged assault which allegedly occurred on February 18, 2017. See
DE 40.

●

On March 1, 2017, the Court issued an Order directing Defendants’ counsel to
provide Plaintiff with news video footage of the May 15, 2015 incident and to
obtain video footage of the more recent February 18, 2017 incident, and to do so
by March 14, 2017. See DE 41.

●

On March 10, 2017, the Court issued an Order permitting Defendants to provide
Plaintiff access to the video footage of the May 15, 2015 and February 18, 2017
incidents by arranging for him to view the video footage rather than delivering to
him copies of the footage while he is incarcerated. See DE 45.

●

On October 10, 2017, the Court issued a Civil Conference Minute Order stating that
Defendants’ counsel is directed to obtain an affidavit from the
person who obtained the video footage at issue in this case stating
that the video footage supplied to date is all the footage that
defendants have. Defendants’ counsel is further directed to send a
copy of the video footage to the plaintiff now that he has been
released. . . . The Court reiterated several times that plaintiff is not
entitled to receive any further discovery from the defendants for
incidents which occurred beyond the date of the original complaint
– until Judge Bianco resolves the issue of plaintiff’s letter seeking
to amend his complaint. DE 104.

●

Defendants filed an affidavit dated November 1, 2017, stating that their affiant,
Matthew Bogert, had reviewed all video footage related to Plaintiff’s claims, and
that no video footage exists of any incident involving Plaintiff dated June 22,
2015. DE 106. The affidavit further stated that there is video footage of incidents
occurring on February 18, 2017 and May 8, 2015, and that that footage was
produced on DVDs to Plaintiff previously and was personally shown to Plaintiff
by the affiant on March 24, 2017 in the Attorney Visiting Room at the Suffolk
County Correctional Facility. Id.

Based on this review of the docket, the Court finds that Plaintiff has been given the
relevant video footage to the extent that such footage exists and likewise was shown the footage
at the Correctional Facility on March 24, 2017. The Court finds that there is nothing further to
direct the defendants to do here with respect to any video footage.
If Plaintiff is able to explain the good faith basis for his continuing to ask for this
material, Plaintiff may submit a letter to the Court setting forth in specific detail what footage he
is referencing and why he believes that defendants have something more than what they have

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already turned over to him. The deadline to file such a letter is 14 days from Plaintiff’s receipt of
this Order.
Defendants’ counsel is directed to serve this Order on the pro se Plaintiff forthwith
by first-class mail and to file proof of such service on ECF by July 25, 2018.

SO ORDERED.
Dated: Central Islip, New York
July 19, 2018
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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