Hughes v. Smolinski et al
Filing
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DECISION AND ORDER: ORDERED as follows: (1) Defendants' motions to compel discovery (Dkt. Nos. 41 , 48 ) are GRANTED. (2) Plaintiff is directed to appear for a period not to exceed four hours for completion of his deposition, at a date and time to be selected by defendants' counsel, upon at least fourteen days' notice. In the event that plaintiff fails to appear for the scheduled deposition or does not participate through to its conclusion, defendants are permitted to fil e a motion for sanctions seeking dismissal of plaintiff's second amended complaint. (3) If plaintiff believes he is medically unfit to sit for the remaining four hours of his deposition, plaintiff shall provide the court with medical proof at le ast five days prior to the scheduled deposition. (4) The deposition shall take place no later than January 31, 2019. (5) On or before January 31, 2019, plaintiff is directed to respond to defendant Smolinksy's document demands served on h im on or about June 13, 2018. (6) Plaintiff's motion to compel discovery (Dkt. No. 54 ) is DENIED. (7) The discovery deadline in this case is hereby extended until January 31, 2019. (8) The motion deadline in this case is hereby extended until February 28, 2019. Signed by Magistrate Judge David E. Peebles on 12/14/18. {order served via regular mail on plaintiff}(nas, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MAURICE HUGHES,
Plaintiff,
Civil Action No.
9:17-CV-1151 (DNH/DEP)
v.
MAHMOOD BUTT, et al.,
Defendants.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
MAURICE HUGHES, Pro Se
18-B-1404
Collins Correctional Facility
P.O. Box 340
Collins, NY 14034
FOR DEFENDANTS BUTT AND HALL:
STEINBERG, SYMER & PLATT
27 Garden St.
Poughkeepsie, NY 12601
JONATHAN E. SYMER, ESQ.
FOR DEFENDANT SMOLINSKY:
HON. ROBERT G. BEHNKE
Broome County Attorney
Broome County Office Building
60 Hawley St.
P.O. Box 1766
Binghamton, NY 13902
JENNIFER L. SUWAK, ESQ.
Assistant County Attorney
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
Pro se plaintiff Maurice Hughes, a New York State prison inmate,
has commenced this civil rights action pursuant to 42 U.S.C. § 1983
asserting claims arising out of his conditions of confinement in Broome
County Jail ("Broome C.J."). Although plaintiff's original complaint asserted
additional claims against several defendants, the action has been
narrowed to include only medical indifference and retaliation causes of
action against three individuals stationed at the Broome C.J. at the
relevant times.
Currently pending before the court are discovery motions filed by the
parties. In particular, defendants have filed a motion to compel plaintiff to
complete his deposition, and plaintiff's motion seeks the appointment of a
"private investigator" to assist him with discovery. For the reasons set forth
below, defendants' motions are granted, and plaintiff's motion is denied.
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I.
BACKGROUND
Although plaintiff is currently an inmate being held in the custody of
the New York State Department of Corrections and Community
Supervision, Dkt. No. 40 at 3, at the times relevant to his claims in this
action plaintiff was confined in the Broome C.J. Dkt. No. 45. As alleged in
the currently operative second amended complaint, plaintiff was deprived
of adequate medical care by defendants Doctor Butt and Barry Hall and
retaliated against for filing grievances by defendant Mark Smolinsky, the
Broome C.J. Administrator. See generally id.; see also Dkt. No. 44.
On or about August 2, 2018, defendants Hall and Butt served
plaintiff with a notice of deposition, indicating that his deposition would
occur on August 27, 2018, at the Collins Correctional Facility ("Collins
C.F."), the prison in which plaintiff was confined at the time. Dkt. No. 41-5;
Dkt. No. 48-4. On or about August 7, 2018, defendant Smolinsky served
his notice of deposition on plaintiff, indicating that plaintiff's deposition
would occur at the same time and place described in the notice of
deposition from defendants Hall and Butt. Dkt. No. 41-6. Counsel for
defendants Hall, Butt, and Smolinsky arrived at the Collins C.F. on the
scheduled deposition date of August 27, 2018, for plaintiff's deposition.
Dkt. No. 48-5 at 2-3. The deposition commenced at approximately
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10:30AM, and plaintiff answered questions posed by counsel for
defendants Hall and Butt until approximately 12:00PM, at which time the
parties recessed for lunch. Dkt. No. 41-1 at 2. The parties reconvened
thirty minutes later. Id. Although the parties dispute whether plaintiff ate
anything during the lunch break, counsel for defendant Smolinsky
"personally observed a correctional officer give the plaintiff his lunch which
consisted of several food items, including what appeared to be soft food
items." Dkt. No. 41-1 at 2. Plaintiff contends, however, that, five days
earlier, he had oral surgery and had more than twenty teeth extracted. Dkt.
No. 53 at 5. According to plaintiff, he was in so much pain on the date of
the deposition that it was impossible for him to eat the food he was served
for lunch, which consisted of "cold cuts [a]nd cheese[.]" Id. At
approximately 2:15PM, plaintiff unilaterally terminated the deposition,
complaining about his medical conditions and being unable to eat. Dkt.
No. 41-1 at 3; Dkt. No. 48-5 at 167-68. Defendants did not consent to the
termination of the deposition. Dkt. No. 48-5 at 168.
II.
DISCUSSION
A.
Defendants' Motions to Compel
Defendant Somlinsky's motion requests an order from the court
directing plaintiff to respond to document demands and complete his
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deposition testimony. Dkt. No. 41-12. With respect to the document
demands, defendant Smolinsky served document demands on plaintiff on
or about June 13, 2018. Dkt. No. 41-2. To date, plaintiff has not provided
any documents in response, nor has he provided defendant Smolinksy
with an explanation for not responding. Dkt. No. 41-1 at 1.
With respect to plaintiff's termination of his deposition on August 27,
2018, defendants Hall, Butt, and Smolinsky discredit plaintiff's medical
complaints and assert that plaintiff intentionally refused to comply with
discovery demands by refusing to complete his deposition. Dkt. No. 41-12
at 9; Dkt. No. 48-1 at 5.
In response to defendants' motions, plaintiff contends that he was in
"s[e]rious pain" and experiencing "headaches" during the deposition. Dkt.
No. 53 at 5. He also states that he is a diabetic and, on the date of the
deposition, had not received any insulin since 6:00AM. Id. He claims that a
result, and because of his inability to eat the food provided to him during
the lunch recess, he "was feeling so hungry and light headed" at the time
that he was compelled to unilaterally terminate the deposition. Id.
Rule 37 of the Federal Rules of Civil Procedure provides, in relevant
part, that where "a party . . . fails to . . . permit discovery," the court may
issue sanctions. Fed. R. Civ. P. 37(b)(2). Similarly, Rule 37(d) permits the
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court to issue sanctions where a party fails to attend its own properly
noticed deposition. Fed. R. Civ. P. 37(d). "A district court has wide
discretion in imposing sanctions . . . under Rule 37[.]" Daval Steel Prods.
v. M/V Fakredine, 951 F.2d 1357 (2d Cir. 1991).
After considering the parties' positions concerning plaintiff's
unilateral and non-consensual termination of his deposition on August 27,
2018, I find that sanctions are not justified at this time. Plaintiff stated on
the record at his deposition that he was refusing to continue after several
hours of questioning in light of his medical conditions. In particular, when
asked by counsel for defendants Butt and Hall to state his reason for
terminating the deposition, plaintiff testified as follows:
My name is Maurice Hughes. It is approximately
2:21. I've been here since 10:46. I just had surgery,
oral surgery in my mouth where they took out 28
teeth. They have me on medications. I haven't been
able to take them. I can't eat. I'm insulin-dependent.
I've been down here four hours. I cannot take it
anymore. It has nothing to do with the inquiry. It has
something to do with my physical well-being. It is
being jeopardized.
For me to know that I got to sit here for another two
hours with nothing to eat in my stomach, I can go
into diabetic ketoacidosis, or worse, and I'm not
going to put myself in that type of peril. And I end
now. I'm sorry.
Dkt. No. 48-5 at 168. In light of plaintiff's health at the time of the
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deposition, as well as the special solicitude courts must extend to pro se
litigants, I find that sanctioning plaintiff for his unilateral termination of the
deposition is not appropriate at this juncture. Nevertheless, defendants are
entitled to a complete deposition of plaintiff, and plaintiff will therefore be
directed to sit for deposition for a period not to exceed four hours at a date
and time selected by counsel for defendants. Barring medical
documentation provided to the court prior to the date of the scheduled
deposition demonstrating that plaintiff cannot medically participate in four
hours of testimony at one time (with appropriate breaks provided),
defendants are granted leave to file a motion for sanctions against plaintiff,
including dismissal of the action, in the event he refuses to appear for
deposition or unilaterally terminates the deposition again for medical
reasons.
At this time, I must also address defendants' allegations that, prior to
terminating the deposition, plaintiff had become argumentative with
defendants' counsel during questioning. See, e.g., 48-5 at 50, 114-16,
127-30. Such behavior, which at times can be fairly characterized as
obstructive, is not, and will not be, condoned by the court. Plaintiff is
hereby warned that any continued obstruction or argumentative conduct
during his deposition will be met with sanctions, including possibly
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dismissal of all claims in the action. Although he may state simply
“objection to form” if he believes a question posed in not in proper form, he
must answer each question unless if calls for a response that would be
protected by privilege.
Finally, defendant Smolinksy's request for an order directing plaintiff
to respond to his document demands, served on plaintiff on or about June
13, 2018, is granted. Plaintiff has provided no justification for failing to
respond. Accordingly, plaintiff will be directed to respond to the document
demands served upon him by defendant Smolinsky on or about June 13,
2018.
B.
Plaintiff's Motion to Compel
On November 15, 2018, the court received plaintiff's motion to
compel discovery. Dkt. No. 54. Although it is not a model of clarity, it
appears that plaintiff requests an order from the court ordering defendants
Hall and Butt to locate an unidentified number of "staff members who
worked at the Broome C.J. . . . in the year 2017," who allegedly denied
diabetic-inmates, including plaintiff, the proper doses of insulin. Dkt. No.
54 at 2-3. Plaintiff also requests "the Court to appoint [him] a '[p]rivate
investigator" to assist with discovery. Id. at 3.
Absent a court order expanding the scope of discovery to any matter
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relevant to the subjects raised, the scope of discovery in a civil action is
governed by Rule 26(b) of the Federal Rules of Civil Procedure. In
relevant part, that rule 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)(1). Under this provision, the bounds of permissible discovery in a
civil action are generally broad. Maresco v. Evans Chemetics, Div. of W.R.
Grace & Co., 964 F.2d 106, 114 (2d Cir. 1992) (citing Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978)). That said, however, a party
must first request discovery from its adversary before filing a motion in
court to compel the adversary to produce the discovery. In this case,
plaintiff has not served any discovery demands on defendants Hall and
Butt requesting information about an unidentified number of staff at
Broome C.J. that may have administered an improper amount of insulin to
diabetic-inmates at any time. Dkt. No. 57 at 2. For that reason, plaintiff's
request is denied.
Moreover, setting aside the fact that plaintiff has apparently
attempted to bypass the discovery process altogether in this matter by
failing to serve any demands on defendants, plaintiff has submitted no
proof that, in accordance with the local rules of practice for this court, he
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first attempted to meet and confer with defendants in good faith to obtain
the information he now seeks. See N.D.N.Y. L.R. 7.1(b)(2) ("Prior to
making any non-dispositive motion before the assigned Magistrate Judge,
the parties must make good faith efforts among themselves to resolve or
reduce all differences relating to the non-dispositive issue."); see also
N.D.N.Y. L.R. 7.1(d)(1) ("Parties must make good faith efforts among
themselves to resolve or reduce all differences relating to discovery prior
to seeking court intervention."). Plaintiff's failure to do so in this action also
provides a basis for denying his motion. N.D.N.Y. L.R. 7.1(d)(2); Murray v.
Palmer, No. 03-CV-1010, 2006 WL 2516485, at *1 (N.D.N.Y. Aug. 29,
2006).
Finally, with respect to plaintiff's request that the court appoint a
private investigator to assist him with discovery, that request is patently
frivolous and therefore denied. There is no legal authority for appointing
plaintiffs – who voluntarily commence civil actions in federal court – private
investigators to assist them in prosecuting their case.
III.
SUMMARY AND ORDER
Following plaintiff's unilateral termination of his deposition on August
27, 2018, defendants Hall, Butt, and Smolinsky filed motions in this court
for an order directing plaintiff to attend the remaining portion of his
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deposition. In light of the record now before the court, including the
deposition transcript, it appears that plaintiff's decision to prematurely
terminate the deposition was for legitimate medical reasons. Accordingly,
no sanctions will be issued against plaintiff. He is, however, directed to
attend the remaining four hours of his deposition.
Turning now to plaintiff's motion to compel discovery, because he
has not demonstrated he attempted to meet and confer with defendants in
good faith before filing his motion in this court, and because plaintiff's
request for the appointment of a private investigator is frivolous, the
motion is denied.
Accordingly, it is hereby
ORDERED as follows:
(1)
Defendants' motions to compel discovery (Dkt. Nos. 41, 48)
are GRANTED.
(2)
Plaintiff is directed to appear for a period not to exceed four
hours for completion of his deposition, at a date and time to be selected by
defendants' counsel, upon at least fourteen days' notice. In the event that
plaintiff fails to appear for the scheduled deposition or does not participate
through to its conclusion, defendants are permitted to file a motion for
sanctions seeking dismissal of plaintiff's second amended complaint.
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(3)
If plaintiff believes he is medically unfit to sit for the remaining
four hours of his deposition, plaintiff shall provide the court with medical
proof at least five days prior to the scheduled deposition.
(4)
The deposition shall take place no later than January 31, 2019.
(5)
On or before January 31, 2019, plaintiff is directed to respond
to defendant Smolinksy's document demands served on him on or about
June 13, 2018.
(6)
Plaintiff's motion to compel discovery (Dkt. No. 54) is DENIED.
(7)
The discovery deadline in this case is hereby extended until
January 31, 2019.
(8)
The motion deadline in this case is hereby extended until
February 28, 2019.
(9)
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 court.
Dated:
December 14, 2018
Syracuse, New York
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