Henry v. Liberty et al

Filing 45

DECISION AND ORDER: ORDERED as follows: (1) Plaintiff's motion to compel discovery (Dkt. No. 35 ) is DENIED without prejudice to renewal following conferral with defendants' counsel concerning any specific documents alleged to be within the scope of discovery as set forth in Rule 26(b) of the Federal Rules of Civil Procedure and within the possession, custody, or control of defendants and/or the DOCCS. (2) No costs or attorney's fees are awarded in connection with plaintif f's motion. (3) The parties are hereby advised that they may appeal this ruling to District Judge Mae A. D'Agostino. Any such appeal must be filed within fourteen days of the date of service of this order. Signed by Magistrate Judge David E. Peebles on 2/16/17. (served on plaintiff with copy of unreported decision in 9:14-cv-1382 by regular mail) (alh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

PAUL HENRY,
Plaintiff,

Civil Action No.
9:15-CV-1108 (MAD/DEP)

v.
MATTHEW L. LIBERTY, et al.,
Defendants.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
PAUL HENRY, Pro se
07-A-1752
Sullivan Correctional Facility
Box 116
Fallsburg, NY 12733
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

RACHEL M. KISH, ESQ.
Assistant Attorney General

DECISION AND ORDER
Currently pending before the court in connection with this action is a
motion brought by the plaintiff to compel the defendants to provide
additional discovery. For the reasons set forth below, the motion is denied
without prejudice.
I.

BACKGROUND
On September 14, 2015, pro se plaintiff Paul Henry, a New York State

prison inmate, commenced this civil rights action pursuant to 42 U.S.C. §
1983 against two named individuals and several "John Doe" defendants, all
of whom are alleged to be corrections officers employed by the New York
State Department of Corrections and Community Supervision ("DOCCS") at
the Clinton Correctional Facility ("Clinton"). Dkt. No. 1. In his complaint,
plaintiff alleges that, on or about October 28, 2012, he was assaulted by
corrections officers causing him to suffer serious injuries. Id. at 4-6. As
relief, plaintiff's complaint requests an award of compensatory and punitive
damages in the amount of $20 million. Id. at 7.
The court issued a mandatory pretrial discovery and scheduling order
in the action on October 7, 2016. Dkt. No. 24. Among other things, the order
required defendants to produce certain documents relating to plaintiff's
claims, and specified the types of documents covered. Id. Particularly, in
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cases involving claims of the use of excessive force, the order required the
production of documents falling into the following categories:
Photographs; unusual incident reports; use-of-force
reports; disciplinary charges; records (including
transcripts) of disciplinary hearings; determinations
of disciplinary charges and appeals therefrom;
videotapes and/or audiotapes, and medical records
concerning treatment for any injuries allegedly
received by the plaintiff as a result of the incident(s)
alleged in the complaint.
Id. at 7 (footnotes omitted). In compliance with this directive, defendants'
counsel sent plaintiff a letter on December 21, 2016, accompanied by nearly
four hundred pages of materials, all of which were indexed by Bates stamp
numbers. Dkt. No. 38-1. Defendants supplemented that disclosure on
December 27, 2016, with the production of additional records. Dkt. No.
38-2.
On January 6, 2017, plaintiff filed a document entitled "notice of
motion to produce" with the court. Dkt. No. 35. Plaintiff requests the
production of documents falling into nine enumerated categories. Id. In
response, defendants' counsel wrote to the court on January 12, 2017,
advising that plaintiff had not previously requested the documents set forth
in his motion, and asking that the court therefore consider the motion papers
as a request for the production of documents pursuant to Rule 34 of the
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Federal Rules of Civil Procedure. 1 Dkt. No. 38. A text order was
subsequently issued on January 12, 2017, granting that request, deeming
plaintiff's submission (Dkt. No. 35) to be a demand for the production of
documents, and directing defendants to respond to the notice on or before
February 6, 2017. Dkt. No. 39.
On February 6, 2017, the court received a communication from the
plaintiff, alleging that defendants' response to his request to produce was
deficient. Dkt. No. 40. Defendants have since responded, by letter dated
February 8, 2017, in essence arguing that all relevant documents that are
within the possession of defendants or the DOCCS, including those sought
by plaintiff, have been produced. Dkt. No. 42. Plaintiff filed an additional
letter on February 15, 2017, reiterating his position that certain materials
have not been produced as directed in the court's order dated October 7,
2016. Dkt. No. 44.
II.

DISCUSSION
The court has reviewed defendants' response, dated January 30,

2017, and supplemental response, dated February 1, 2017, to plaintiff's
motion to produce, and finds no reason to conclude that plaintiff has not
1

In that correspondence, defendants' counsel also advised that many of the
documents sought by plaintiff were previously produced in response to the court's
mandatory pretrial discovery and scheduling order. Dkt. No. 38 at 1; Dkt. No. 38-1 at 1.
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received all of the documents demanded, and to which he is entitled, that
are currently within the possession, custody, or control of defendants or
DOCCS. Many of defendants' responses refer plaintiff to materials
contained within the nearly four hundred pages of initial disclosures, and
identify specific Bates stamp numbers associated with the requested
documents. To the extent plaintiff believes that there are other documents
within the possession, custody, or control of defendants and/or the DOCCS
that are relevant to his claims and have been requested but not produced,
he is directed to confer with defendants' counsel as required by both the
Federal Rules of Civil Procedure and the local rules of this court, identifying
with specificity the documents requested. In the event the parties are unable
to agree with regard to any such specific requests, plaintiff may then apply
to the court for permission to file a motion to compel discovery.
There are two specific issues raised by plaintiff that require further
discussion. Plaintiff appears to request documents associated with an
investigation conducted by the New York State Police into the relevant
events. As defendants correctly argue, the New York State Police, as an
agency, is not a party to this action and therefore cannot be compelled to

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respond to plaintiff's notice to produce without the issuance of a subpoena
addressed to and served upon that agency requesting those documents. 2
Plaintiff also raises issues concerning documents associated with an
investigation conducted by the DOCCS Office of Special Investigations
("OSI"). From the submissions now before the court, it appears that plaintiff
was permitted to inspect those records, subject to certain redactions. Dkt.
No. 38-3. I agree with defendants that, for legitimate penological reasons,
plaintiff should not be permitted to retain copies of the OSI investigative file
associated with the incident at issue in this matter. See Grant v. Fischer, No.
14-CV-1382, Dkt. No. 51 at 6 (N.D.N.Y. issued Aug. 9, 2016) (Stewart, M.J.)
("[T]he Court agrees that providing the Plaintiff with an opportunity to review
the [OSI] Report, but not possess it, is the appropriate course which
adequately protects all the parties' interests.").3

2

In the event that such documents exist and are within the custody of defendants'
counsel, the court directs counsel to provide those documents to the plaintiff.
3

A copy of this unreported decision has been appended for the convenience of the
pro se plaintiff.
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III.

SUMMARY AND ORDER
For the reasons set forth above, it is hereby
ORDERED as follows:
(1)

Plaintiff's motion to compel discovery (Dkt. No. 35) is DENIED

without prejudice to renewal following conferral with defendants' counsel
concerning any specific documents alleged to be within the scope of
discovery as set forth in Rule 26(b) of the Federal Rules of Civil Procedure
and within the possession, custody, or control of defendants and/or the
DOCCS.
(2)

No costs or attorney's fees are awarded in connection with

plaintiff's motion.
(3)

The parties are hereby advised that they may appeal this ruling

to District Judge Mae A. D'Agostino. Any such appeal must be filed within
fourteen days of the date of service of this order. 4

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If you are proceeding pro se and are served with this decision and order by mail,
three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the decision and order was mailed to you to serve and file
objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the
next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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(4)

The clerk is respectfully hereby directed to forward copies of

this order to the parties pursuant to the court's local rules.

Dated:

February 18, 2017
Syracuse, New York

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILLIAM T. GRANT,
Plaintiff,
-v-

Civ. No. 9:14-CV-1382
(MAD/DJS)

BRIAN FISCHER, et. al.,
Defendants.
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APPEARANCES:

OF COUNSEL:

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WILLIAM T. GRANT
95-A-3324
Plaintiff, Pro Se
Green Haven Correctional Facility
P.O. Box 4000
Stromville, NY 12582
HON ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
Litigation Bureau
The Capitol
Albany, NY 12224

ORIANA CARRAVETTA, ESQ.
Assistant Attorney General

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DANIEL J. STEWART
United States Magistrate Judge
DECISION AND ORDER
Pro se Plaintiff William Grant moves the Court to compel production of a hard copy
of the Inspector General’s1 Investigative Report into his alleged misconduct as an inmate at
the Great Meadow Correctional Facility, and for sanctions. Dkt. No. 39. The Plaintiff has

1

The Office of Inspector General (“IG”) is now known as the Office of Special Investigations (“OSI”).

been provided with an opportunity to view the contents of the Investigative Report, but
believes that the production of a hard copy of that Report is essential to oppose Defendants’
Summary Judgment Motion.2 Id. at p. 2. The Defendants oppose the Motion upon two
primary grounds: (1) that the law enforcement privilege and security reasons justify only a
visual review of the documents, and (2) that the documents are not relevant to Plaintiff’s
remaining claim of a due process violation. Dkt. No. 42 at p. 2. For the reasons that follow
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the Plaintiff’s Motion is denied.
I. PROCEDURAL HISTORY
Plaintiff initially commenced this action asserting claims that arose out of the
conditions of his confinement while he was in the custody of the New York State Department
of Corrections and Community Supervision (“DOCCS”). Dkt. No. 1, Compl. In particular,

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Plaintiff alleges that on October 6, 2011, while confined at the Great Meadow Correctional
Facility, he was served with a misbehavior report alleging that he conspired with others to
introduce heroin into the facility; solicited others to smuggle items into the facility, and
engaged in a third-party telephone call. Id. at ¶ 9. The events in question allegedly occurred
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approximately one month earlier on September 8, 2011. Id.
The disciplinary charges against the Plaintiff were authored by Investigator Klose.3
Id. at ¶¶ 6 & 9. Plaintiff was assisted in his defense by J. Winney (formerly “J. Atkinson”).

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At the time Plaintiff filed his Motion to Compel, Defendants had not yet moved for summary judgment;
however, Defendants’ Motion for Summary Judgment has now been filed. See Dkt. No. 44.
3

Defendant Klose was subsequently dismissed from this action. See Dkt. Nos. 13 & 26.

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Id. at ¶ 12. At the hearing, Plaintiff generally maintained his innocence and denied any
involvement in an effort to bring heroin into the facility, but did acknowledge that he
engaged in a third-party telephone call. Id. at ¶¶ 13 & 20. Plaintiff was found guilty of all
charges, and the hearing officer, Defendant R. Boissy, imposed a penalty of nine months
solitary confinement with corresponding loss of privileges and six months recommended loss
of good time. Id. at ¶ 25. The disciplinary decision was allegedly affirmed and upheld by
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Defendants D. Venettozzi and Brian Fischer on December 13, 2011. Id. at ¶ 28. Over one
year later, on December 18, 2012, Albert Prack, Director of Special Housing/Inmate
Disciplinary Programs, reversed the finding of guilt. Id. at ¶ 30.
In general, Plaintiff claims that the Defendants violated his Fourteenth Amendment
right to Due Process because Plaintiff was found guilty without receiving a fair hearing and

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without any supporting evidence or proof that he was involved in a conspiracy to import
heroin into the facility. Id. at ¶¶ 11 & 83. Plaintiff also claims that his Eighth Amendment
rights were violated by virtue of the conditions of confinement he was exposed to while in
solitary disciplinary confinement. Id. at ¶¶ 36-40. The District Court initially dismissed
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certain claims upon an initial screening review, conducted puruant to 28 USC §§ 1915(e) and
1915A. Dkt. No. 13. Plaintiff then filed an Amended Complaint against Brian Fischer, D.
Venettozi, D. Klose, R Boissy, and J. Winney. Dkt. No. 23, Am. Compl. The District Court
then conducted an initial screening review of the Amended Complaint, and, pursuant to a
Decision and Order, dated July 10, 2015, Plaintiff’s Fourteenth Amendment claim against
Defendant Klose was dismissed, as was his Eighth Amendment conditions-of-confinement
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claim. Dkt. No. 26 at pp. 4-7. Therefore the claims that presently remain consist of the
Fourteenth Amendment denial of Due Process claim against Defendant Winney for her
alleged failure to adequately assist Plaintiff and the Fourteenth Amendment Due Process
claims against Defendants Boissy, Fisher, and Venettozi arising out of the conduct of the
hearing and the penalty that was imposed. Id. at p. 7.
II. DISCUSSION
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As an initial matter, the Defendants maintain that the sought-after Investigative Report
has no relevance to the claims at hand, as it merely led to the disciplinary charges, and the
constitutional claims at issue relates solely to the Defendants’ processing of those charges.
See Dkt. No. 42 at p. 8. (“Simply stated, everything contained in the [Office of Special
Investigations (“OSI”)] file predates plaintiff’s Tier III hearing and has absolutely no bearing

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on the process afforded to plaintiff at the subsequent Tier hearing. The substance of the OSI
file sought by plaintiff involved events that led to the issuance of the MBR to plaintiff. . . .
Each of the remaining named defendants . . . was not involved in the OSI investigation[.]”)
(emphasis in original). However, the Court is not in a position to so narrowly construe
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discovery in this case. Indeed, part of the Plaintiff’s claim is that he should have been
provided access, by way of his assistant, to the Report prior to the hearing so that he could
adequately prepare a defense. Furthermore, Plaintiff maintains that the documents which
make up the Investigative Report show that the charges themselves were baseless and
unwarranted. Dkt. No. 43, Pl.’s Reply at p. 3. The Defendants, of course, disagree, but the
Court will not require the Plaintiff to forgo this area of discovery.
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Defendants have next raised the issue of the law enforcement privilege. Dkt. No. 42
at pp. 2-6. It is clear that the Second Circuit and the District Courts have recognized this
particular privilege and, while the privilege is a qualified one which can be overcome, care
must be exercised in disclosing documents that may contain the name of informants, agents,
or practices and procedures. See In re City of N.Y., 607 F.3d 923, 941 (2d Cir. 2010) (noting
that the law enforcement privilege’s purpose is to, among other things, “prevent disclosure
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of law enforcement techniques [and] procedures and to preserve confidentiality of sources.”);
McCaskill v. Bresset, Civ. No. 9:13-CV-1487, Dkt. No. 43 (N.D.N.Y. Jan. 7, 2015) (applying
law enforcement privilege to contents of Inspector General’s file, and allowing Plaintiff to
only examine and to take notes of redacted file); Guillory v. Overbaugh, Civ. No. 9:13-CV1353, Dkt. No. 51 (N.D.N.Y. March 24, 2015) (same). As noted by then-Magistrate Judge

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Randolph Treece in Guillory: “IG reports deserve some protections and courts usually
fashion various remedies to foster their confidentiality.” Guillory, Civ. No. 9:13-CV-1353.
at p. 3.
In their own balancing of DOCCS’ interests in not disclosing the specifics of the
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Investigation Report and the right of Plaintiff to obtain potentially relevant discovery, the
Attorney General’s office has taken a counseled position that Plaintiff need not be barred
from reviewing the Investigative Report in toto, but that he should be prevented from having
a hard copy of the Report which could then, either intentionally or unintentionally, be passed
to the prison population. See Dkt. No. 42 at pp. 5-6. The Plaintiff, in turn, expresses his
need for a hard copy of the Report so that he can prepare an adequate response to the
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dispositive Motion, and objects to the application of the law enforcement privilege by noting
that OSI is not a law enforcement agency and, moreover, that the Investigative Report
contains no informant information and no real confidential investigative techniques. For
example, he notes that the fact that prison officials record inmate calls is well known within
the facility. Dkt. No. 43 at pp. 1-2.
The Federal Rules of Civil Procedure were changed in December 2015, and with
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regard to the scope of discovery the Rules now state:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit
FED. R. CIV. P. 26(b)(1).

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The new amendments to the Federal Rules generally provide substantial authority to
the Court to craft discovery orders to fit the particular needs of each case. In the present
matter, and mindful of the legitimate concerns of DOCCS and the facility, as adequately set
forth by the Affidavit of Stephen Maher, Dkt. No. 42-1, the Court agrees that providing the
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Plaintiff with an opportunity to review the Report, but not possess it, is the appropriate
course which adequately protects all the parties’ interests. Accordingly the Court denies
Plaintiff’s Motion to Compel insofar as he requests the production of a hard copy of the
Investigative Report, and further denies Plaintiff’s request for sanctions.
However, certain additional points need to be made. First, the Plaintiff was initially
allowed to see the Investigative Report in December 2015. Since that time, however,
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Defendants have filed a comprehensive Motion for Summary Judgment. Fairness dictates
that the Plaintiff should be allowed to review the documents again and to take all necessary
notes now that he is aware of the precise arguments that the Defendants are making to seek
dismissal of his claims. Second, the Plaintiff is advised that the Defendants have provided
a complete copy of the Investigative Report at issue directly to the Court’s Chambers. The
Court will retain a copy of that Report as it reviews the Motion for Summary Judgment.
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Therefore, if the Plaintiff makes reference to the Report in his papers in opposition to the
Motion, the Court will be able to easily refer to the actual Report. Third, in the event that
this matter proceeds to trial, and Plaintiff is provided with pro bono counsel, that counsel is
authorized to obtain an “attorney’s eyes only” copy of the Report.
Finally, the deadline for Plaintiff to respond to the Summary Judgment Motion

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expired while the present Motion to Compel was pending. Because the Plaintiff clearly
indicated in his Motion that he needed to review the Investigative Report to prepare his
response, and since he has not yet had that opportunity, the Court hereby extends the
Plaintiff’s time to respond to the pending dispositive Motion until September 15, 2016.
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Defendants are directed to make arrangements to quickly provide, once again, a copy of the
Investigative Report to the Plaintiff for his visual inspection and for note taking, but not to
be copied by him.
III. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that Plaintiff’s Motion to Compel production of a hard copy of the
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Investigative Report and for sanctions, (Dkt. No. 39), is denied; however, it is further
ORDERED, that Plaintiff shall, within fifteen (15) days of the date of this Decision
and Order, be provided an opportunity to view the Investigative Report a second time in
order to help prepare his response for the Summary Judgment Motion, (Dkt. No. 44), and that
Plaintiff’s time to respond to that dispositive Motion is hereby extended to September 23,
2016.
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SO ORDERED.
Date: August 9, 2016
Albany, New York

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