Heyliger v. Cymbrak et al
Filing
57
DECISION AND ORDER : Except as to the extent indicated herein, plaintiff's motions to compel discovery (Dkt. Nos. 47 , 48 , & 54 ) are DENIED. Discovery in this matter is now closed, with the exception of the matters as noted herein. Plain tiff may not serve any further discovery demands in this case. In addition, any further motions to compel discovery will be stricken by the court as untimely pursuant to N.D.N.Y. L.R. 7.1(d)(8). The dispositive motion deadline in this case is here by extended until March 31, 2019. The parties are advised that an appeal from this order may be taken to District Judge David N. Hurd. Any such appeal must be taken within fourteen days of the date of this order. The Clerk is respectfully directed t o serve a copy of this decision and order on the parties in accordance with the local rules of practice for this court, and to modify the court's records as set forth in footnote number one. Based upon the foregoing, it is hereby SO ORDERED. Signed by Magistrate Judge David E. Peebles on 12/26/2018. (Copy served upon plaintiff via regular mail). (sal )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
______________________________
DEREK A. HEYLIGER,
Plaintiff,
v.
Civil Action No.
9:17-CV-0912 (DNH/DEP)
A. CYMBRAK, et al. 1
Defendants.
_______________________________
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
DEREK A. HEYLIGER, Pro se
12-B-0269
Attica Correctional Facility
Box 149
Attica, NY 14011
FOR DEFENDANTS:
HON. BARBARA D. UNDERWOOD
New York State Attorney General
The Capitol
Albany, NY 12224
WILLIAM A. SCOTT, ESQ.
Assistant Attorney General
Filings by the parties reflect that that the proper spellings of the names of certain
of the defendants are as follows: (1) defendant "C. Lagree" is "Christopher Lagree,"
Dkt. No. 14 at 1; (2) defendant "L. Maloney" is "Liam Mahoney," Dkt. No. 48-2 at 22;
(3) defendant "A. Cymbrak" is "Andrew Cymbrak," Dkt. No. 14 at 3; (4) defendant "K.
Wilcox" is "Kevin Wilcox," Dkt. No. 14 at 4; and (5) defendant "Kile Guynup" is "Kyle
Guynup," Dkt. No. 48-3 at 1. Accordingly, the clerk of the court is hereby respectfully
directed to modify the court's records to reflect the proper spelling of the name of each
of these defendants.
1
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
Currently pending before the court in connection with this matter are
the third, fourth, and fifth motions brought by pro se plaintiff Derek A.
Heyliger to compel discovery. Dkt. Nos. 47, 48, 54. Collectively, in those
motions plaintiff seeks an order compelling a response to interrogatories
served on each of the fourteen defendants, as well as to his first, second,
and third requests for the production of documents ("RFP"). In addition,
plaintiff seeks leave to depose two inmate witnesses.
Oral argument was conducted in connection with plaintiff's motions
during a telephone conference, held on the record on December 19, 2018,
at which point decision was reserved. Based upon the written and oral
presentations of the parties, it is hereby
ORDERED as follows:
I.
INMATE DEPOSITIONS
Plaintiff requests permission to conduct the depositions of two prison
inmates, Orlando Medina and Shane Juggarnauth. Dkt. No. 48 at 2. That
request is DENIED. Discovery in this matter closed on November 29,
2018, see Dkt. No. 45, and plaintiff has offered no good cause to extend
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that deadline. This denial is without prejudice to plaintiff's right to request
permission from the trial judge to call those two inmates as witnesses at
the trial of this matter or to request permission to have the depositions of
those two inmates taken, in anticipation of trial, by any attorney assigned
to represent plaintiff pro bono for use at trial.
II.
DOCUMENT DEMANDS
Plaintiff's motions involve three separate document demands served
by plaintiff. Dkt No. 47-2 at 1-8; Dkt. No. 50. The parties dispute whether
the first two document demands were timely served in July 2018. Dkt. No.
49 at 1. Plaintiff's third RFP was served on or about November 25, 2018,
and is therefore untimely. See N.D.N.Y. L.R. 16.2. Accordingly, plaintiff's
motion to compel compliance with his third RFP will therefore be DENIED.
Addressing plaintiff's first and second RFPs, the court notes that any
request to produce defendants' complete personnel files is DENIED. Any
requests for all grievances and complaints filed against defendants are
also DENIED. The court, however, will direct defendants to produce any
documents and information associated with substantiated findings of
excessive force and unlawful retaliation on the part of any of the
defendants named in this action.
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With respect to files of the Inspector General ("IG") and Office of
Special Investigation ("OSI"), those materials must be made available to
plaintiff, redacted to shield any confidential or otherwise sensitive
information, with the understanding that plaintiff may not request copies of
those documents, although upon request, such copies will be provided to
his pro bono counsel at trial and for his or her eyes only.
With respect to the remaining portions of plaintiff's first and second
RFPs, the court grants the following requests, and orders production to
plaintiff at his current facility, for purposes of inspection, within thirty days
of the date of this order. Plaintiff may request copies of any of the
documents produced provided, however, that he must pay for any
documents requested over 124 pages at the rate of $.25 per page.
(1)
With respect to RFP No. 1 (Dkt. No. 47-2 at 2-8), defendants
are directed to produce responses to ¶¶ 1, 2, 3, 4, 8, 14, 15, 16, 31, and
33.
(2)
With respect to RFP No. 2 (Dkt. No. 47-2 at 1), defendants are
directed to produce only those documents relating to any claims of
excessive use of force or unlawful retaliation involving these individual
defendants that have been substantiated upon the conclusion of an
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internal administrative investigation or court proceeding, to the extent that
any of those documents may exist.
III.
INTERROGATORIES
The court has reviewed plaintiff's interrogatories and defendants'
responses to those interrogatories. Generally speaking, plaintiff has
served interrogatories averaging twenty each to the fourteen defendants in
this case. Many of those interrogatories seek information that is of minimal
or no relevance to his claims and the defenses in this action and/or violate
the rule of proportionality set forth in Rule 26(b) of the Federal Rules of
Civil Procedure. Based upon its review of the interrogatories and
defendants' responses thereto, the court will direct the defendants to
provide further responses to the following interrogatories:
(3)
With respect to W. Perry, defendant Perry is directed respond
to ¶¶ 1, 2, 11, 15, 16, 18, and 19 of the interrogatories. However,
defendant Perry's response to each of those interrogatories shall be
limited to only those claims of excessive use of force or unlawful retaliation
that have been substantiated upon the conclusion of an internal
administrative investigation or court proceeding and to the extent that any
such documents may exist.
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(4)
With respect to K. Wilcox, defendant Wilcox is directed to
respond to ¶¶ 1, 2, 11, 14, 15, 16, 18 and 19 of the interrogatories.
However, defendant Wilcox's response to each of those interrogatories
shall be limited to only those claims of excessive use of force or unlawful
retaliation that have been substantiated upon the conclusion of an internal
administrative investigation or court proceeding and to the extent that any
such documents may exist.
(5)
With respect to Liam Mahoney, defendant Mahoney is directed
to respond to ¶¶ 1, 2, 11, 15, 16, 18, and 19 of the interrogatories.
However, defendant Mahoney's response to each of those interrogatories
shall be limited to only those claims of excessive use of force or unlawful
retaliation that have been substantiated upon the conclusion of an internal
administrative investigation or court proceeding and to the extent that any
such documents may exist.
(6)
With respect to Lafountain, defendant Lafountain is directed to
respond to ¶¶ 1, 2, 11, 15, 16, 18, 19, and 24 of the interrogatories.
However, defendant Lafountain's response to each of those interrogatories
shall be limited to only those claims of excessive use of force, unlawful
retaliation, or food contamination that have been substantiated upon the
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conclusion of an internal administrative investigation or court proceeding
and to the extent that any such documents may exist.
(7)
With respect to Kyle Guynup, defendant Guynup directed to
respond to ¶¶ 1, 2, 8, 9, 15, 16, 18, 20, and 21 of the interrogatories.
However, defendant Guynup's response to each of those interrogatories
shall be limited to only those claims of excessive use of force or unlawful
retaliation that have been substantiated upon the conclusion of an internal
administrative investigation or court proceeding and to the extent that any
such documents may exist.
(8)
With respect to Andrew Cymbrak, defendant Cymbrak is
directed to respond to ¶¶ 1, 2, 7, 8, 12, 13, 15, 18, and 19 of the
interrogatories. However, defendant Cymbrak's response to each of those
interrogatories shall be limited to only those claims of excessive use of
force or unlawful retaliation that have been substantiated upon the
conclusion of an internal administrative investigation or court proceeding
and to the extent that any such documents may exist.
(9)
With respect to C. Lagree, defendant Lagree is directed to
respond to ¶¶ 1, 2, 6, 11, 12, 13, 14, and 16 of the interrogatories.
However, defendant Lagree's response to each of those interrogatories
shall be limited to only those claims of excessive use of force or unlawful
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retaliation that have been substantiated upon the conclusion of an internal
administrative investigation or court proceeding and to the extent that any
such documents may exist.
(10) With respect to any of the foregoing interrogatories that
defendants were ordered to answer, they shall produce that information to
plaintiff within thirty days of the date of this order.
IV.
REMAINING REQUESTS AND MOTION DEADLINES
Except as to the extent indicated above, plaintiff's motions to compel
discovery are DENIED. Discovery in this matter is now closed, with the
exception of the matters as set forth above. Plaintiff may not serve any
further discovery demands in this case. In addition, any further motions to
compel discovery will be stricken by the court as untimely pursuant to
N.D.N.Y. L.R. 7.1(d)(8). The dispositive motion deadline in this case is
hereby extended until March 31, 2019.
The parties are advised that an appeal from this order may be taken
to District Judge David N. Hurd. Any such appeal must be taken within
fourteen days of the date of this order.
The Clerk is respectfully directed to serve a copy of this decision and
order on the parties in accordance with the local rules of practice for this
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court, and to modify the court's records as set forth in footnote number
one, above.
Based upon the foregoing, it is hereby SO ORDERED.
Dated:
December 26, 2018
Syracuse, NY
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