Triplett v. Ash et al

Filing 124

ORDER denying 118 Motion for Discovery. The Court hereby ORDERS that Plaintiff's motion to reopen discovery (Dkt. No. 118) is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. IT IS SO ORDERED. Signed by U.S. District Judge Mae A. D'Agostino on 04/08/2021. (bto)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
OMAR TRIPLETT, a/k/a/ The Doctor,
vs.

Plaintiff,

9:17-CV-656
(MAD/TWD)

CHAD ASCH, et al.,

Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

WHITEMAN, OSTERMAN LAW
FIRM – ALBANY OFFICE
One Commerce Plaza, Suite 1900
Albany, New York 12210
Attorneys for Plaintiff

HILDA MARINELLO CURTIN, ESQ.
ROBERT T. SCHOFIELD, ESQ.

NEW YORK STATE ATTORNEY
GENERAL – ALBANY
The Capitol
Albany, New York 12224
Attorneys for Defendants

CHRISTOPHER J. HUMMEL, ESQ.
HELENA O. PEDERSON, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
On June 19, 2017, Plaintiff pro se Omar Triplett ("Plaintiff"), an inmate in the custody of
the New York State Department of Corrections and Community Supervision ("DOCCS"),
commenced this action asserting claims arising out of his previous confinement at the Central
New York Psychiatric Center ("CNYPC"). See Dkt. No. 1. On November 30, 2018, Plaintiff
filed an amended complaint, which is now the operative pleading. See Dkt. Nos. 65 & 66.
Following Defendants' motion for summary judgment, the only claims remaining are Plaintiff's
Eighth Amendment Excessive Force claims against Defendants Asch, Martin, and Williams, and
his Fourteenth Amendment Due Process claim against Defendant Berkheimer arising from the

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June 19, 2014 incident. See Dkt. No. 111 at 10. On January 7, 2021, Plaintiff was appointed pro
bono counsel. See Dkt. No. 112. Presently before the Court is Plaintiff's motion to reopen
discovery. See Dkt. No. 118. The Court presumes the parties' familiarity with the facts and
refers the parties to Magistrate Judge Dancks' June 2, 2020 Order and Report-Recommendation
for a more detailed recitation of the facts. See Dkt. No. 110 at 2–6. For the following reasons,
Plaintiff's motion is denied.
Plaintiff seeks leave to conduct expert discovery to retain an expert on the use of force in
correctional settings and a medical expert in the field of psychiatry. See Dkt. No. 118-1 at 5.
Plaintiff also requests that Defendants Asch, Martin, Williams, and Berkheimer be ordered to
appear for depositions. See id. at 7. Defendants oppose Plaintiff's request, arguing that Plaintiff
has failed to establish good cause to reopen discovery and that granting Plaintiff's requests would
prejudice Defendants. See Dkt. No. 119 at 3.
"The decision to re-open discovery is within a district court's discretion." Krawec v.
Kiewit Constr. Inc., No. 11 Civ. 123, 2013 WL 1104414, *8 (S.D.N.Y. Mar. 1, 2013). "As a
general rule, discovery should only be re-opened for good cause; depending on the diligence of
the moving party." Id. (citing Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)).
"Courts also consider the following factors: 1) the imminence of trial; 2) whether the request is
opposed; 3) whether the moving party foresaw the need for additional discovery, in light of the
discovery deadline set by the court; 4) prejudice to the non-moving party; and 5) whether further
discovery is likely to lead to relevant evidence." Id. (citing Bakalar v. Vavra, 851 F. Supp. 2d
489, 493 (S.D.N.Y. 2011)); Shapard v. Attea, No. 08-CV-6146, 2015 WL 866892, *2 (W.D.N.Y.
Mar. 2, 2015) (quoting Krawec, 2013 WL 1104414, at *8).
In this matter, trial is set to begin on June 1, 2021. See Dkt. No. 117. Plaintiff's request
to reopen discovery is opposed. See Dkt. No. 119. While the Court recognizes that pro bono
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counsel was appointed on January 7, 2021, the Court notes that Plaintiff regularly engaged in
communication with the Court and motion practice during the pendency of this litigation.
Discovery commenced in November 2017 and continued through September 2018. Even after
discovery ended, Plaintiff continued to file motions to compel and requests with the Court. See
Dkt. Nos. 50, 51, 55, 64, 67, 71, 81, 104, 108. However, despite Plaintiff's regular
communication throughout the discovery process, Plaintiff made no efforts to obtain expert
evidence or depose Defendants.
Now, less than two months before trial, Plaintiff seeks to depose Defendants Asch,
Martin, William, and Berkheimer. See Dkt. No. 118-1 at 7. The Court finds that Plaintiff had a
full and fair opportunity to depose Defendants and that requiring Defendants to appear for a
deposition so close to the scheduled trial date would unduly prejudice Defendants. Ordering
Defendants to prepare for and appear for depositions when trial is less than two months away
would significantly impair Defendants' ability to prepare for trial. Plaintiff cites to Young v.
Southwest Airlines Co., No. 14-CV-1940, 2016 WL 3257008, *3 (E.D.N.Y May 4, 2016), in
support of his argument that Defendants would not suffer prejudice. See Dkt. No. 118-1 at 8.
However, the court in Young noted that any prejudice to the defendant was mitigated because the
trial had been adjourned without date. See Young, 2016 WL 3257008, at *3. Here, with trial set
to commence so soon, the prejudice Defendants would face justifies denial of Plaintiff's request.
Accordingly, Plaintiff's motion to compel Defendants Asch, Martin, William, and Berkheimer to
appear for depositions is denied.
Plaintiff also seeks to reopen discovery so that he can conduct expert discovery to retain
an expert on the use of force in correctional settings and a medical expert in the field of
psychiatry. See Dkt. No. 118-1 at 5. Plaintiff argues that experts are necessary to educate the
jury about reasonable use of force in correctional settings and the standard of care for the
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involuntary administration of psychiatric medication in a correctional facility. See id. at 5-6.
However, the Court agrees with Defendants that the issues at trial are factual disputes and
credibility assessments that must be decided by a jury. Plaintiff maintains that he was attacked
by Defendants after he refused to perform sexual acts on them. See Dkt. No. 110 at 3.
Defendants maintain that Plaintiff attacked them without provocation in the midst of a psychotic
episode. See id. at 3-4. With respect to Plaintiff's Fourteenth Amendment claim against Dr.
Berkheimer, the reasonableness of Dr. Berkheimer's conduct is dependent upon which version of
the facts the jury credits. These issues fall squarely within the ken of the jury. Thus, the Court
finds that expert testimony would not be beneficial in this matter. Additionally, Plaintiff had
ample opportunity to support his claims with expert testimony, but failed to exercise diligence in
obtaining such discovery. See Bakalar v. Vavra, 851 F. Supp. 2d 489, 494 (S.D.N.Y. 2011).
Finally, the Court finds that conducting expert discovery at this late stage in the litigation would
prejudice Defendants and interfere with their ability to adequately prepare for trial.
Accordingly, the Court hereby
ORDERS that Plaintiff's motion to reopen discovery (Dkt. No. 118) is DENIED; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 8, 2021
Albany, New York

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