Burks v. Stickney et al
Filing
90
DECISION AND ORDER: ORDERED as follows: (1) Defendants' motion for relief from the court's June order (Dkt. No. 74 ) is GRANTED. (2) Paragraph one of the court's June order (Dkt. No. 57) is hereby VACATED and superseded by this order. (3) On or before December 15, 2017, defendants shall produce to plaintiff a list of all known investigations conducted of DOCCS employees at the Clinton Correctional Facility that were in progress at any time between January 1, 2015 and A ugust 31, 2015, related to the issues of either smuggling and/or secreting of contraband or prisoner abuse at the facility. (4) In generating the information directed in paragraph (3), defendants and the DOCCS shall accomplish the following steps : (a) Identify all OSI investigations covering the subject matters set forth above and opened between January 1, 2015 and August 31, 2015. (b) Identify all OSI investigations covering the subject matters set forth above and closed between Januar y 1, 2015 and the date of the disclosure to plaintiff. (c) Of the investigations closed during that timeframe, identify those that were opened between January 1, 2015 and August 31, 2015. (5) After completing the foregoing steps, but also by or b efore December 15, 2017, defendants and the DOCCS shall review the underlying files associated with the pertinent investigations and provide to plaintiff the dates on which the investigations began and ended, the subject of the investigations, a nd the identity of any DOCCS employees whose actions were investigated. (6) Defendants and the DOCCS are not required to produce the information specified in paragraph (5) relating to any OSI investigation that remains open and pending. (7) As a n alternative to the review of the pertinent investigations proposed in paragraph (5), defendants and the DOCCS may forward to the court for in camera review the summary sheets generated by the OSI electronic case filing system regarding the invest igations. After reviewing the summary sheets provided for in camera inspection, the court will determine whether they provide sufficient information to satisfy plaintiff's discovery needs or whether further analysis of the underlying physic al case files is required for all or some of the matters disclosed. (8) The information provided to plaintiff under the terms of this order is confidential and for attorney's eyes only. Plaintiff's counsel may not disclose this informat ion to anyone outside of his law firm without prior consent of defendants' counsel or court approval. (9) No costs or attorney's fees are awarded to any party in connection with this matter. Signed by Magistrate Judge David E. Peebles on 11/22/17. (alh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MATTIEU BURKS,
Plaintiff,
Civil Action No.
9:16-CV-0759 (FJS/DEP)
v.
CHAD STICKNEY, et al.,
Defendants.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
STOLL, GLICKMAN & BELLINA LLP
475 Atlantic Avenue, Third Floor
Brooklyn, New York 11217
LEO GLICKMAN, ESQ.
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DENISE P. BUCKLEY, ESQ.
ADRIENNE J. KERWIN, ESQ.
Assistant Attorneys General
DECISION AND ORDER
I.
BACKGROUND
Plaintiff Mattieu Burks, a New York State prison inmate, has
commenced this civil rights action pursuant to 42 U.S.C. § 1983 against
various employees of the New York State Department of Corrections and
Community Supervision ("DOCCS"). In his complaint, as amended, plaintiff
alleges that defendants harassed and assaulted him while he was
incarcerated in the Clinton Correctional Facility ("Clinton") in an effort to
dissuade him from cooperating with investigations conducted regarding
prisoner abuse at Clinton and the introduction of contraband into the facility.
Discovery in this action, which is nearly complete, has often been
contentious. As a result of motion practice prompted by plaintiff's demand for
information concerning investigations related to smuggling and/or secreting of
contraband and prisoner abuse at Clinton, and defendants' objection to the
demand, I issued an order on June 14, 2017 ("June order"), in which I
directed, in pertinent part, as follows:
(1) On or before July 1, 2017, defendants shall
produce to plaintiff a list of all known investigations
conducted of DOCCS employees at the Clinton
Correctional Facility and in progress at any time
between January 1, 2015 and August 31, 2015, related
to the issue of smuggling and/or secreting of
contraband, or prisoner abuse, at the facility. Such list
shall include the dates on which the investigation began
2
and ended, state the subject of the investigation, and
identify any DOCCS employees whose actions were
investigated.
Dkt. No. 57 at 2. 1 Currently pending before the court is defendants'
request from relief from the above-quoted portion of the June order.
Defendants' motion is supported, in part, by one of three
declarations given in the case by Shawn Mousseau, a Senior Investigator
in the Intake and Management Unit of the DOCCS Office of Special
Investigations ("OSI"). Dkt. No. 74-3. In general, in his declaration,
Mousseau complains that complying with the June order would be overly
burdensome. See, e.g., id. at 3 ("To examine only the files of the 97 cases
that were opened during the period in question and determine all of the
information set out in the Court's order would require me to spend many
hours each day for several weeks. Of course, this work would also
interfere with all of my everyday [sic] and emergency responsibilities, and
thus I would have to perform these tasks when I can do so along with my
other urgent duties."). Defendants argue that the burden, as described by
Mousseau, of producing the information specified in the June order
outweighs any potential relevance of the information sought. Dkt. No. 74-6
1
In a subsequent text order, the court exempted grievance investigations from
the scope of the June order. Dkt. No. 62.
3
at 15-16. The court has twice heard oral argument concerning defendants'
motion for reconsideration and conducted an evidentiary hearing on
November 13, 2017, at which Mousseau testified.
II.
DISCUSSION
Defendants' motion is brought pursuant to Rule 54(b) of the Federal
Rules of Civil Procedure, which provides as follows:
(b) Judgment on Multiple Claims or Involving
Multiple Parties. When an action presents more
than one claim for relief--whether as a claim,
counterclaim, crossclaim, or third-party claim--or
when multiple parties are involved, the court may
direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for
delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than
all the parties does not end the action as to any of
the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b) (emphasis in original). Under that rule, a district court
retains the authority "to revise [any of its interlocutory orders] at any time
before the entry of final judgement." In re: WTC Disaster Cite, 414 F.3d
352, 381 (2d Cir. 2005) (quotation marks and alterations omitted); accord,
Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 212
(2d Cir. 2010) ("There is no question that a district court has the authority
4
to revise any non-final order at any time before the entry of a judgment."
(citing Fed. R. Civ. P. 54(b) (quotation marks and alteration omitted)).
While the court retains the inherent authority to modify its June
order, the standard for doing so is not prescribed by Rule 54(b). In this
district, requests for relief from non-final orders are governed in the first
instance by case law decided under Local Rule 7.1(g), which provides, in
pertinent part, as follows:
Motion for Reconsideration. Unless Fed. R. Civ.
P. 60 otherwise governs, a party may serve a
motion for reconsideration or reargument no later
than FOURTEEN DAYS after the entry of the
challenged judgment, order, or decree. All motions
for reconsideration shall conform with the
requirements set forth in L.R. 7.1(a)(1) and (2) . . . .
The Court will decide motions for reconsideration or
reargument on submission of the papers, without
oral argument, unless the Court directs otherwise.
N.D.N.Y. L.R. 7.1(g) (emphasis in original). 2 Under Local Rule 7.1(g),
reconsideration of an order entered by the court is appropriate upon a
showing of "(1) an intervening change in controlling law, (2) the availability
2
Parenthetically, Rule 60 of the Federal Rules of Civil Procedure does not apply
in this case, where the order or judgment in question (an order compelling defendants
to produce certain information) is not a final one. See, e.g., Makas v. N.Y. State Dep't
of Motor Vehicles, No. 97-CV-1892, 1998 WL 219588, at *1 n.1 (N.D.N.Y. Apr. 29,
1998) (McCurn, J.) ("This motion for reconsideration is not made pursuant to Rule
60(b) of the Federal Rules of Civil Procedure because [that rule] only applies to final
judgments and orders."). Instead, reconsideration is properly sought under rule 7.1(g)
of the local rules. Douglas v. N.Y. State Adirondack Park Agency, No. 10-CV-0299,
2012 WL 5364344, at *4 (N.D.N.Y. Oct. 30, 2012) (Suddaby, J.).
5
of new evidence not previously available, or (3) the need to correct a clear
error of law or prevent manifest injustice." In re C-TC 9th Ave. P'ship, 182
B.R.1, 3 (N.D.N.Y. 1995) (McAvoy, J.); see also Cayuga Indian Nation of
N.Y. v. Pataki, 188 F. Supp. 2d 223, 244 (N.D.N.Y. 2002) (McCurn, J.);
Sumner v. McCall, 103 F. Supp. 2d 555, 558 (N.D.N.Y. 2000) (Kahn, J.).
The benchmark for seeking reconsideration of a court's order has
been described as demanding. In re C-TC 9th Ave. P'ship, 182 B.R. at 2.
A motion for reconsideration is not a vehicle through which a losing party
may raise arguments that could have been presented earlier but for
neglect, nor is it a device "intended to give an unhappy litigant one
additional chance to sway the judge." Brown v. City of Oneonta, N.Y., 858
F. Supp. 340, 342 (N.D.N.Y. 1994) (McAvoy, J.) (quotation marks
omitted). To qualify for reconsideration, "[t]he moving party [must] point to
controlling decisions or data that the court overlooked—matters,
in other words, that might reasonably be expected to alter the conclusion
reached by the court." Shrader v. CSX Transp., Inc., 70 F. 3d 255, 257 (2d
Cir. 1995).
Defendants' pending motion, like its predecessors, must also be
decided against the backdrop of Rule 26(b) of the Federal Rules of Civil
Procedure, which dictates the scope of pretrial discovery in federal civil
6
actions. In relevant part, Rule 26 provides that "[p]arties 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[.]" Fed. R. Civ.
P. 26(b). The rule also includes a list of considerations for a court when
determining whether a discovery request is "proportional to the needs of
the case," including the following:
[T]he 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.
Id.
When issuing my June order, I found at least some modicum of
relevance in the information sought by plaintiff. Determining the extent of
that relevance, however, has been hampered by plaintiff's refusal to
cooperate with defendants' efforts to ascertain the extent of his knowledge
concerning smuggling contraband into and prisoner abuse at Clinton.
Based upon the recent hearing, the court now has a better
understanding of the information available to the DOCCS and the burden
of complying with the June order than it did when issuing the June order.
The purpose of the June order was to allow for plaintiff's counsel to
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discover what investigations concerning prison abuse and smuggling
and/or secreting of contraband were underway at Clinton between January
1, 2015 through August 1, 2015. Mousseau testified that, through his
search of both the OSI electronic filing system and a spreadsheet that he
has independently generated during his tenure as the OSI's Senior
Investigator, he has been able to identify ninety-seven OSI investigations
falling into the two relevant categories and opened during the relevant
timeframe. While Mousseau also testified that it is possible to search the
electronic case filing system and his spreadsheet to identify the
investigations closed during any period of time, he stated that, if he did
that for investigations closed between January 1, 2015 and August 1,
2015, in combination with the search of investigations opened during that
period, the search would not capture investigations opened prior to
January 1, 2015, but closed after August 1, 2015.
Mousseau also indicated that the OSI electronic case filing system
generates a summary sheet for each OSI investigation and that the
information included in the summaries may include the employees
involved, the subject of the investigation, the case category (e.g.,
excessive force/assault), the date the complaint was received, any
inmates and their roles in the case (e.g., complainant, witness), and a
8
succinct narrative of the allegations that formed the basis for the
investigation.3 Mousseau cautioned, however, that the accuracy and
completeness of those summaries are dependent upon the diligence and
at the discretion of the investigator assigned to the case. In other words,
there is no uniform method or manner in which an investigator assigned to
any particular case uploads the information gathered during the
investigation into the electronic case file. For that reason, in Mousseau's
view, it is necessary for him to conduct a search the physical paper case
file for each of the investigations in order to compile the information
required in the court's June order. He further stated that those files can be
fairly extensive, containing up to as many as five hundred pages each.
In addition to arguing burden, the DOCCS has objected to disclosing
to plaintiff any information generated during an investigation that remains
open on the basis that such disclosures could be potentially harmful to the
ongoing investigations. Based on Mousseau's testimony at the recent
hearing, it appears that, of the ninety-seven investigations identified as
having been opened during the relevant period, approximately twenty
remain open.
3
An example of those summary sheets is set forth in Dkt. No. 66-1 at 3-5
(duplicated at Dkt. No. 78).
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Based upon the testimony adduced at the hearing, I am unconvinced
that providing certain basic information concerning OSI investigations at
Clinton falling into the categories specified and covering the period in
issue would be unduly burdensome or detrimental to the security of the
facility. I am, however, sensitive to the security concerns voiced regarding
ongoing investigations and the burden associated with conducting the
review of the physical paper files of ninety-seven, or even seventy-seven,
investigations, and have weighed those factors against the potential
relevance of the information sought as required under Rule 26(b)(1) of the
Federal Rules of Civil Procedure.
Based upon the foregoing, and in light of the submission of newly
discovered evidence, I find that revision of my order is warranted.
III.
SUMMARY AND ORDER
Based upon the foregoing, it is hereby
ORDERED as follows:
(1)
Defendants' motion for relief from the court's June order (Dkt.
No. 74) is GRANTED.
(2)
Paragraph one of the court's June order (Dkt. No. 57) is
hereby VACATED and superseded by this order.
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(3)
On or before December 15, 2017, defendants shall produce to
plaintiff a list of all known investigations conducted of DOCCS employees
at the Clinton Correctional Facility that were in progress at any time
between January 1, 2015 and August 31, 2015, related to the issues of
either smuggling and/or secreting of contraband or prisoner abuse at the
facility.
(4)
In generating the information directed in paragraph (3),
defendants and the DOCCS shall accomplish the following steps:
(a)
Identify all OSI investigations covering the subject
matters set forth above and opened between January 1, 2015 and August
31, 2015.
(b)
Identify all OSI investigations covering the subject
matters set forth above and closed between January 1, 2015 and the date
of the disclosure to plaintiff.
(c)
Of the investigations closed during that timeframe,
identify those that were opened between January 1, 2015 and August 31,
2015.
(5)
After completing the foregoing steps, but also by or before
December 15, 2017, defendants and the DOCCS shall review the
underlying files associated with the pertinent investigations and provide to
11
plaintiff the dates on which the investigations began and ended, the
subject of the investigations, and the identity of any DOCCS employees
whose actions were investigated.
(6)
Defendants and the DOCCS are not required to produce the
information specified in paragraph (5) relating to any OSI investigation that
remains open and pending.
(7)
As an alternative to the review of the pertinent investigations
proposed in paragraph (5), defendants and the DOCCS may forward to
the court for in camera review the summary sheets generated by the OSI
electronic case filing system regarding the investigations. After reviewing
the summary sheets provided for in camera inspection, the court will
determine whether they provide sufficient information to satisfy plaintiff's
discovery needs or whether further analysis of the underlying physical
case files is required for all or some of the matters disclosed.
(8)
The information provided to plaintiff under the terms of this
order is confidential and for attorney's eyes only. Plaintiff's counsel may
not disclose this information to anyone outside of his law firm without prior
consent of defendants' counsel or court approval.
(9)
No costs or attorney's fees are awarded to any party in
connection with this matter.
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Dated:
November 22, 2017
Syracuse, New York
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