Burks v. Stickney et al

Filing 97

DECISION AND ORDER: ORDERED that; (1) Plaintiff's motion for sanctions (Dkt. No. 81 ) is GRANTED, limited to the request for the imposition of sanctions against defendants Racette and Kirkpatrick based upon the difficulty in scheduling their depositions. (2) Plaintiff is hereby awarded the sum of $628.65 each against defendants Racette and Kirkpatrick, as sanctions, to be paid within thirty days of the date of this order. (3) Except to the extent of the foregoing, plaintiff' s motion for sanctions (Dkt. No. 81 ) is DENIED. (4) The clerk is respectfully directed to forward to the attorneys in this action the New York State Bar Association publication entitled "Civility in Litigation: A Voluntary Commitment." In the future, the attorneys for the parties are expected to abide by the rules set forth in that pamphlet, and to treat each other with courtesy, dignity, and professionalism. Signed by Magistrate Judge David E. Peebles on 1/29/18. (NYSBA publication emailed to all attorneys of record) (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
This is a civil rights action brought by plaintiff Mattieu Burks, a New
York State prison inmate who is represented by counsel, pursuant to 42
U.S.C. § 1983, against various employees of the New York State
Department of Corrections and Community Supervision ("DOCCS").
Currently pending before the court is an application by plaintiff for
sanctions based upon several occurrences during the course of pretrial
discovery. For the reasons set forth below, plaintiff's motion will be granted
in part.
I.

BACKGROUND
Plaintiff commenced this action on June 27, 2016. Dkt. No. 1. In his

complaint, as amended, plaintiff alleges that defendants harassed and
assaulted him while he was incarcerated in the Clinton Correctional
Facility ("Clinton"), located in Dannemora, New York, and deprived him of
certain basic necessities, including water and electricity, in an effort to
dissuade him from cooperating with investigations conducted regarding
prisoner abuse at Clinton and the introduction of contraband into the
facility. Dkt. No. 36. Plaintiff's complaint asserts Eighth Amendment cruel
and unusual punishment claims against several named corrections
officers, as well as additional, unidentified Doe defendants. Id.
2

The conduct of counsel for the parties, and in particular their
interactions, has not lived up to the court's expectations. As a result of the
inability to effectively and meaningfully communicate, counsel for both
parties have greatly increased the complexity and expense associated
with the litigation, and have required intervention from the court in
connection with matters that should not have arisen or should have been
resolved between counsel.
On October 17, 2017, plaintiff filed a motion seeking an award of
sanctions based upon alleged failures on the part of defendants to engage
in discovery. Dkt. No. 81. Plaintiff's motion centers upon four subjects,
including (1) defendants' refusal to appear for depositions; (2) last minute
changes in the conditions associated with a photographic array to be
shown to plaintiff to assist him in identifying the individuals responsible for
the constitutional violations alleged; (3) the misidentification of a defendant
listed by plaintiff in his complaint only by the name "Corrections Officer
Nolan" as "Darwin Nolan"; and (4) the need to elicit court assistance in
scheduling the depositions of Superintendents Racette and Kirkpatrick. Id.
Plaintiff's motion is brought pursuant to Rule 37(d) of the Federal Rules of
Civil Procedure and the court's inherent power to regulate litigation. Dkt.
No. 81-1 at 2, 10.
3

II.

DISCUSSION
A.

Scheduling of Depositions

On May 19, 2017, plaintiff served defendants with seven deposition
notices. Dkt. No. 81-2 at 2; see e.g., Dkt. No. 81-3. Those notices
specified that the depositions would occur on dates that were not
previously discussed and cleared with defendants' counsel, but which
were more than one month after the notices were sent, and that they
would be held in Albany, New York. Id. The initial response from
defendants' attorney, sent by e-mail on May 26, 2017, was that she had
contacted all but one of the seven defendants, four of whom were
available on the dates requested and two who gave alternative dates
within the specified time frame. Dkt. No. 88 at 4, see Dkt. No. 81-4 at 1-2;
Dkt. No. 88-6. In that e-mail, defendants' counsel stated that "[t]he
defendants will appear at Clinton CF for their depositions, not in Albany[,]"
and offered the option of conducting the depositions by video conference
with the witnesses testifying at Clinton and the attorneys participating from
Albany. Id. Negotiations over the dates and locations of the depositions
ensued. Id. Ultimately, depositions of five defendants were completed; four
of those occurred in Albany, New York, and the fifth, that of defendant

4

Racette, was held in Plattsburgh, NY. 1 Dkt. No. 88 at 5. The remaining
four depositions did not take place, apparently based upon a decision by
plaintiff's counsel not to pursue the matter. Id.
Plaintiff now seeks to recover attorney's fees for 1.1 hours of time
spent in negotiating over the dates and locations of the depositions. In the
court's view, the requested compensation is not warranted. Although the
negotiations ultimately proved to be difficult, it is not uncommon for parties
to disagree over dates and locations of depositions and have to confer, in
good faith – as the applicable federal and local rules require – in an
attempt to arrive at agreement concerning those subjects. Plaintiff's
request for compensation for time spent in negotiating over deposition
dates and locations is therefore denied.
B.

Photographic Array

The issue raised by plaintiff’s counsel in connection with his desire to
have his client view a photographic array of corrections officers employed
at the relevant times at Clinton illustrates the stark failure of
communication between counsel in this case, and the deleterious effect it

1

The scheduling of defendant Racette's deposition is the subject of another issue
raised in plaintiff's motion, and will be addressed separately. See pp. 14-18, post.
5

has had in complicating discovery and requiring court involvement that
should have been unnecessary.
In an effort to identify the officers that allegedly assaulted him on
July 5, 2015, plaintiff requested an opportunity to review a photographic
array of corrections officers on duty in the block in which he was housed
between July 5, 2015 at 11:00 p.m. and 7:00 a.m. on the following
morning. Dkt. No. 81-1 at 3. On June 13, 2017, the parties agreed that the
array would be presented to plaintiff at 9:00 a.m. on June 15, 2017, at the
Great Meadow Correctional Facility ("Great Meadow"), located in
Comstock, New York, where plaintiff was housed at the time. Id. The date
coincided with a planned trip by plaintiff's counsel to meet with his client at
Great Meadow on the afternoon of June 14, 2017. Id. at 3-4. In light of the
parties' agreement, plaintiff's counsel reserved a hotel room for the night of
June 14, 2017, near the facility. Id. at 4; see Dkt. No. 81-10.
At 7:06 p.m. on June 13, 2017, defendants' counsel sent an e-mail to
plaintiff's attorney, stating the following:
The photo array review in the above matter is confirmed for
Thursday, June 15th, at [9:00 am] at Great Meadow CF. We
have arranged for a court reporter to be present to
transcribe the proceedings. The proceedings will also be
videotaped.

6

Dkt. No. 56 at 3. Plaintiff's counsel responded by e-mail sent on June 13,
2017 at 8:47 p.m., questioning the new conditions. Id. That communication
was followed by another e-mail, sent at 9:17 p.m. on that evening, asking
that defendants' counsel contact plaintiff's attorney by 9:30 a.m. on the
following day before he left for Great Meadow. Id. Having had no
response, plaintiff’s counsel left a voicemail message for defendants’
attorney shortly after 9:30 a.m. on the following morning but, not having
otherwise heard from defendants' counsel, he left for Comstock. Id.
According to plaintiff's counsel, the two attorneys spoke on the
morning of June 14, 2017 and, after plaintiff's counsel reiterated his
objection to the proposed conditions, defendants' attorney purportedly
stated "that she was going forward with a photo array with [his] client that
[sic] it would be on video and recorded, regardless of [his] presence." Dkt.
No. 56 at 3. Citing an e-mail from her to plaintiff's counsel sent on June 14,
2017 at 11:14 a.m., defendants’ attorney states that, in contrast to
plaintiff's version, she advised plaintiff's counsel that it was his choice to
attend or not to attend the photographic array, and if he chose not to
attend, the proceeding would not go forward. Dkt. No. 88 at 7; see Dkt.
No. 56-1 at 1.

7

Based upon the uncertainty in his mind as to whether defendants
intended to go forward with the photographic array in his absence,
plaintiff's counsel applied to the court for an injunction and temporary
restraining order precluding defendants from engaging in the
contemplated photographic array procedure. See Dkt. Nos. 55, 56. In
response, defendants' attorney wrote to plaintiff's counsel on June 14,
2017, advising that if counsel did not attend the photo review, it would not
take place, and she would inform the court of his failure to attend the
review that was requested by him and scheduled to accommodate his
travel plans. Dkt. No. 59-1 at 2. When plaintiff's counsel refused to
withdraw the request for relief from the court, defendants' attorney wrote to
the court on June 14, 2017, alleging that the application was made on the
basis of a "materially false allegation." Dkt. No. 59. The result of plaintiff's
motion was the issuance of an order, on June 14, 2017, by Senior District
Judge Frederick J. Scullin, Jr., granting the motion and prohibiting
defendants from proceeding to have plaintiff review photographs without
his counsel being present.2 Dkt. No. 58.

2

In his order of June 14, 2017, Senior District Judge Scullin issued the following
admonition:
8

In the court's view, this is a dispute that could and should have been
resolved through meaningful communication between the parties, and
without the need for court intervention. A simple telephone conversation
held on June 14, 2017, would have clarified that defendants did not intend
to go forward with the scheduled photographic array outside the presence
of plaintiff's attorney, and the parties could then have negotiated regarding
the parameters of the proceeding and, if necessary, agreed upon a
mutually convenient date for rescheduling it. I am therefore disinclined to
award costs and attorney's fees associated with the photographic array
and plaintiff's motion for emergency injunctive relief from the court. 3
C.

Controversy Over the Identity of Defendant Correction Officer
Nolan

In his complaint, plaintiff named "Correction Officer Nolan" as one of
defendants. See Dkt. No. 1. At the time his complaint was prepared,
plaintiff did not know the first name of the Correction Officer Nolan he

The Court reminds counsel that their conduct is governed by the Rules
of Professional Responsibility with regard to all of their interactions
with opposing parties who are represented by counsel.
Dkt. No. 58 at 2 n.2.
3

I note that in his application to the court for emergency injunctive relief, plaintiff's
counsel requested that he be awarded costs and attorney's fees. See Dkt. No. 55 at 5.
In his order granting injunctive relief, however, Judge Scullin did not address that
request.
9

intended to sue. Id. The summons and complaint were received at Clinton
on August 23, 2016. Dkt. No. 88-39 at 2. Because neither the summons
nor plaintiff's complaint provided a first name for Correction Officer Nolan,
and there are approximately fourteen hundred employees at Clinton, an
investigation was undertaken to determine which of three Correction
Officer Nolans employed at the relevant times at Clinton was the individual
plaintiff intended to name in his complaint. Id. at 2-3. As a result of those
inquires, it was believed that Darwin Nolan was the correction officer
referenced by plaintiff.4 Dkt. No. 88-39 at 3. Defendants' attorney did not
participate in the investigation, and instead was advised by Cassandra
Savage, an assistant in the legal office at Clinton, of the results of the
inquiry into the matter. Id. In the answer filed on behalf off defendants on
October 13, 2016, Correction Officer Nolan was therefore identified as
Darwin Nolan. Dkt. No. 22.
A deposition of defendant Nolan was held on July 28, 2017. Dkt. No.
81-1 at 5. The testimony given during that deposition confirmed that, in
fact, Darwin Nolan was not the Nolan intended to be sued by plaintiff. Id.
at 5-6.

4

Although Darwin Nolan worked at Clinton at the times relevant to plaintiff's
claims, he was not stationed there when the summons and complaint were served.
Dkt.k No. 81-1 at 6.
10

Without more information, the court is unable to determine whether
an ethical violation or other mischief occurred in connection with the
decision to identify Darwin Nolan as the correction officer intended to be
sued by plaintiff. Plaintiff's request for an award of costs and attorney's
fees associated with this issue is therefore denied.
D.

Depositions of Superintendents Kirkpatrick and Racette

In the last portion of his motion, plaintiff seeks recovery of expenses
associated with his efforts to schedule the depositions of defendants
Racette and Kirkpatrick, and of having to apply to the court to compel
those defendants to appear for depositions. In considering this portion of
plaintiff's motion, the court takes notice that as a recently retired and a
current superintendent of a large correctional facility such as Clinton,
respectively, defendants Racette and Kirkpatrick have busy schedules that
are sometimes difficult to accommodate when it comes to the scheduling
of depositions. A careful review of the record now before the court,
however, including the many e-mails exchanged between counsel, reflects
that there was significant and needless difficulty in scheduling the
depositions of those defendants.
On June 28, 2017, plaintiff's attorney informed defendants' counsel
that he would be available to depose the seven defendants noticed,
11

including defendants Racette and Kirkpatrick, during the weeks of July 17
and July 24, 2017. Dkt. No. 81-1 at 6-7. After agreeing to conduct one
deposition per day during the July 18 through 21, 2017 timeframe, and
also on July 25, 27, and 28, 2017, on July 13, 2017, defendants' counsel
e-mailed plaintiff's attorney and confirmed depositions for July 19, 2017
(defendant Kirkpatrick), July 20, 2017 (defendant Racette), July 24, 2017
(defendant Cross), July 25, 2017 (defendant Stickney), and July 28, 2017
(defendant Nolan). Id. at 7. Plaintiff agreed to that schedule. Id.
On July 17, 2017, defendants' counsel revised the schedule, offering
to conduct depositions on July 20, 2017 (defendant Stickney), July 24,
2017 (defendant Cross), July 25, 2017 (defendant Kirkpatrick), July 28,
2017 (defendant Nolan), and August 1, 2017 (defendant Racette). Dkt. No.
81-1 at 7. Although inconvenient for plaintiff’s counsel and the cause of
disruption with his travel plans, he agreed to the revised schedule. Id. The
deposition of Superintendent Kirkpatrick, however, which was scheduled
to be held on July 25, 2017, was unilaterally cancelled by defendants on
July 24, 2017, based upon the claim that he was ill. Id.
The Kirkpatrick deposition was ultimately rescheduled for September
20, 2017, on agreement of the parties. Dkt. No. 81-1 at 7. On September
8, 2017, however, defendants' attorney advised plaintiff's counsel that
12

Superintendent Kirkpatrick had a scheduling conflict and could not appear,
but would be available on September 22, 2017. Id. Plaintiff's counsel
reluctantly agreed to the rescheduling. Id. On the evening of September
21, 2017, however, after plaintiff's counsel arrived at his hotel room in the
area, he was advised by defendants' attorney that defendant Kirkpatrick
would not be appearing for deposition in September 22, 2017. Id. at 7-8.
As a result of that cancellation on short notice, plaintiff's counsel
unnecessarily incurred expenses for the court reporter ($350.00), the cost
of the hotel room ($160.27), and mileage costs (amount not specified) for
the failed deposition, and seeks recovery of those sums as well as
compensation for one-half of the time expended in preparing for the
Kirkpatrick deposition. Id.; see Dkt. Nos. 81-14, 81-15.
Superintendent Kirkpatrick has given a declaration which he swears,
inter alia, that he was physically ill on July 25, 2017, and that it did not
become clear to him until the prior day that he would not be well enough to
attend the scheduled deposition. Dkt. No. 88-38 at 2. Superintendent
Kirkpatrick also states in his declaration that a matter requiring his
presence at Clinton on September 20, 2017, necessitated the
rescheduling of his deposition to two days later. Id. at 3. The scheduled
deposition on September 22, 2017, was postponed as a result of a serious
13

security issue at Clinton requiring a search of the entire Clinton
Correctional Facility Annex. 5 Dkt. No. 88-38 at 3-4.
Superintendent Kirkpatrick's deposition was ultimately held on
October 24, 2017. Dkt. No. 88-38 at 4. It was necessary, however, for
plaintiff to apply to the court in order to obtain an order directing
Superintendent Kirkpatrick, and, as will be seen, former Superintendent
Racette, to appear for deposition. See Dkt. No. 79. That request for
intervention resulted in the issuance of a text order on October 19, 2017,
directing Superintendent Kirkpatrick to appear for deposition on October
24, 2017 in Albany, New York. Dkt. No. 82. In the court's view, court
intervention should not have been necessary, and defendant Kirkpatrick
should have appeared for deposition at a mutually agreed-upon date.
Accordingly, I will grant plaintiff's request for sanctions.6
With regard to defendant Racette, defendants’ counsel advised that
he was out of town on July 18, 2017, but would be available on July 20,

5

In his declaration Superintendent Kirkpatrick notes that at the time of the
incident his First Deputy for Security was out on leave, and was therefore unavailable
to supervise any search in Kirkpatrick's absence. Dkt. No. 88-38 at 3-4.
6
With regard to preparation time, the court believes that plaintiff's counsel should
not be compensated for that time since the deposition of Superintendent Kirkpatrick
ultimately went forward. In addition, having determined that cancellation of the
September 22, 2017 deposition was due to exigent and unforeseen circumstances, I
will not include the court reporter cancellation fee, the hotel room for plaintiff's counsel,
or mileage in the sanctions awarded against defendant Kirkpatrick.
14

2017. Dkt. No. 81-1 at 8. On July 14, 2017, however, defendants' counsel
advised plaintiff's attorney that defendant Racette was no longer available
on that date. Id. Defendants' counsel then wrote to plaintiff's attorney on
July 17, 2017, stating that she was "aiming for" August 1, 2017 for a
deposition of defendant Racette, subject to confirmation. Id. In e-mails of
July 25 and 27, 2017, the parties appeared to lock into August 1, 2017, as
a date for the deposition of defendant Racette. Dkt. Nos. 81-18 at 1-4; 88
at 10. When plaintiff's counsel probed the possibility of deferring the
deposition into September, defendants' counsel responded that defendant
Racette was not available in September and suggested that the deposition
proceed on August 1, 2017. Dkt. No. 81-1 at 9. On July 27, 2017, plaintiff's
counsel wrote to request that the deposition of defendant Racette be put
off and that the parties try to reschedule it in September. Dkt. No. 88-22 at
1. Defendants' counsel responded by reiterating that defendant Racette
was not available in September but was still available in August 1, 2017.
Id. It appears in the record that after plaintiff's counsel opted not to go
forward on August 1, 2017, it was agreed that defendant Racette be
deposed by telephone on October 5, 2017. See Dkt. No. 88-24 at 1.
On September 8, 2017 Attorney Buckley informed Attorney
Glickman that defendant Racette was no longer available for deposition on
15

October 5, 2017, but could appear on October 11, 2017. Dkt. No. 88-25 at
2. No reason was given for the unavailability. Id. After a brief exchange of
e-mails Attorney Glickman notified defendants' counsel that he was not
available on October 11, 2017, the alternative date proposed for defendant
Racette's deposition. Id.; Dkt. No. 88-26 at 1. After a further exchange of
e-mails proved unsuccessful, plaintiff's counsel wrote to the court on
October 11, 2017, requesting assistance in the scheduling of depositions
of defendants Racette and Kirkpatrick. Dkt. No. 79. As a result of that
letter, the court conducted a telephone conference on October 17, 2017,
on the record, and subsequently issued a text order on October 19, 2017,
affixing for the depositions of defendants Kirkpatrick and Racette. Dkt. No.
82.
Having carefully reviewed the chronology of events, the court is of
the firm belief that absent its intervention, the depositions of defendants
Kirkpatrick and Racette would not have occurred. Plaintiff's counsel should
not have had to elicit the court's assistance in scheduling those
depositions. Accordingly, I conclude that the award of sanctions against
defendants Kirkpatrick and Racette is appropriate. 7

7

Having carefully reviewed the record, the court finds no basis to conclude that
defendants' attorney was in any way complicit in the lack of cooperation on the part of
defendants Kirkpatrick and Racette in scheduling their depositions.
16

The total amount of sanctions sought in plaintiff's motion is
$6,768.49, a sum that includes fees and costs in the amount of $4,115.29
for the underlying alleged violations, plus an additional $2,653.20 for
drafting the motion for sanctions. Dkt. No. 81-1 at 12. As was previously
noted, some of the expenses claimed relate to mileage, court reporter
expenses, and hotel costs associated with missed or cancelled
depositions.
It is difficult to gauge precisely what amount of time was wasted by
plaintiff's counsel in attempting to schedule the depositions of defendants
Kirkpatrick and Racette. Clearly, however, there was unnecessary effort
required on the part of plaintiff's attorney to attempt to schedule those
depositions and, ultimately, to apply to the court for appropriate relief.
Calculated at the requested rate of $198 per hour, I estimate that three
hours of attorney time was unnecessarily spent as a result of the efforts to
schedule those depositions, and therefore will award plaintiff $594.00 in
attorney's fees, apportioned equally between defendants Racette and
Kirkpatrick. 8 In addition, plaintiff is entitled to recover a portion of the costs

8

Recovery of attorney's fees in this case is governed by 42 U.S.C. § 1997e,
which provides, in relevant part, as follows:
(d) Attorney's fees
17

related to the bringing of this motion. See e.g., Gagasoules v. MBF
Leasing LLC, 286 F.R.D. 205, 216 (E.D.N.Y. 2012). Since four main
issues were raised, but sanctions were awarded on only one issue, I will
include twenty-five percent of the amount sought, or $663.30, again
apportioned equally between defendants Racette and Kirkpatrick, for a
total award of $628.65 against each defendant.
III.

SUMMARY AND ORDER
Discovery in this case has been contentious and presented the court

with significant challenges. Many of the issues raised by plaintiff in his
motion for sanctions resulted from breakdowns of communications and
were not attributable to bad faith or obstreperous behavior. The efforts to
schedule the depositions of defendants Racette and Kirkpatrick, however,
demonstrated a stark lack of cooperation on the part of the deponents,
and required plaintiff to expend effort that should have been unnecessary.

***
(3) No award of attorney's fees in an action described in
paragraph (1) shall be based on an hourly rate greater than
150 percent of the hourly rate established under section
3006A of Title 18 for payment of court-appointed counsel.
42 U.S.C. § 1997e(d)(3). The Criminal Justice Act rate for assigned counsel in noncapital cases in the Northern District of New York is $132. Guide to Judiciary Policy,
Vol. 7A, Ch. 2 § 230.16(a). Accordingly, the maximum rate for recovery of attorney's
fees under the PLRA is $198.

18

Accordingly, plaintiff's motion will be granted and sanctions will be
awarded solely with respect to that issue. Based upon the foregoing, it is
hereby
ORDERED as follows:
(1)

Plaintiff's motion for sanctions (Dkt. No. 81) is GRANTED,

limited to the request for the imposition of sanctions against defendants
Racette and Kirkpatrick based upon the difficulty in scheduling their
depositions.
(2)

Plaintiff is hereby awarded the sum of $628.65 each against

defendants Racette and Kirkpatrick, as sanctions, to be paid within thirty
days of the date of this order.
(3)

Except to the extent of the foregoing, plaintiff's motion for

sanctions (Dkt. No. 81) is DENIED.
(4)

The clerk is respectfully directed to forward to the attorneys in

this action the New York State Bar Association publication entitled "Civility
in Litigation: A Voluntary Commitment." In the future, the attorneys for the
parties are expected to abide by the rules set forth in that pamphlet, and to
treat each other with courtesy, dignity, and professionalism.

19

Dated:

January 29, 2018
Syracuse, NY

20