Baptiste v. Griffin et al

Filing 68

ORDER re: 66 Letter, filed by Malcolm Baptiste, 67 Letter filed by Michael T. Nagy. Plaintiffs motion for reconsideration is DENIED. Defense counsel is directed to notify Judge Roman within seven (7) days in accordance with Dkt, 62. SO ORDERED. (Signed by Magistrate Judge Paul E. Davison on 7/23/2021) Copies Mailed By Chambers. (kv)

Case 7:18-cv-07274-NSR-PED Document 68 Filed 07/23/21 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
"i ""•?•

BAPTISTE,
Plaintiffs

ORDER

- against -

18 Civ. 7274 (NSR) (FED)
NAGY,
Defendant.
PAUL E. DAVISON, U.S.M.J.:
Discovery in this matter proceeded under my supervision between January 23, 2020 and

January 11, 2021. On April 19, 2021, plaintiff 7?n? se filed a letter motion seeking reconsideration
of oral rulings this Court made during a telephonic discovery hearing on October 14, 2020. [Dkt.
59, j By Order dated May 25, 2021, Judge Roman remanded this matter to the undersigned "for
the limited purpose of reopening discovery to hear Plaintiffs reconsideration motion, provided
that Plaintiffs time to object to Judge Davison's ruling has not yet expired." [Dkt. 62, p,2.]
This Court convened a telephonic hearing on June 11, 2021, and the parties have
submitted additional letter briefs on the issues presented. [Dkts. 64-67.] For the reasons outlined
below. Plaintiffs motion for reconsideration is DENIED.
PlaintilTs motion is untimely. Motions for reconsideration are governed by Rule 6.3 of

the Local Civil Rules for the Southern and Eastern Districts of New York ["Motions for
Reconsideration or Reargumenf], which provides that such motions "shall be served within
fourteen (14) days after the entry of the Court's determination of the original motion[.]" Given
that plaintiffs motion was submitted to Judge Roman, the motion could also be construed as an

application for review of a nondispositive ruling by a Magistrate Judge pursuant to Rule 72(a) of

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the Federal Rules of Civil Procedure. But that rule likewise provides that objections must be
filed and served "within 14 days" after the ruling. Thus, under either rule, plaintiffs time to seek

review of this Court's October 14, 2020 discovery rulings had long expired by the time plaintiff
submitted his motion in April 2021,
Plaintiff implies that he delayed seeking reconsideration because he was waiting for a
"written decision[.]" [Dkt. 59, p. 1.], But this Court routinely renders oral decisions on
discovery matters, and there is nothing on the record to indicate that a further, written decision
would be forthcoming.' [See Minute entry. Oct. 14, 2020 ("Rulings issued re; all outstanding
discovery disputes. )] The Court's comments during the October 14 discovery hearing were to

the same effect. [See Dkt. 46 (October 14, 2020 Transcript), pp. 13 ("That's my ruling "), 15
("You have my ruling.")] Moreover, the Court notes that, to the extent Plaintiff claims he was in
doubt as to dccisional timing or the procedure for seeking review, plaintiff did not inquire about
these matters at subsequent conferences before this Court on November 20, 2020 and January 1 1,
2021, nor did he object to defense counsel's representation at the January 1 1 conference that
discovery had been completed. [See also Minute entry. Feb. 12, 2021 ("All discovery is
completed.")] On this record, and even making allowances for plaintiff s pro se status, plaintiff
has not justified his six-month delay in seeking reconsideration or Rule 72(a) review.
Although I do not revisit the merits of my underlying discovery rulings, I note that, as
defense counsel observes, the Court's rulings "were predominately in Plaintiffs favor" with

Local Civil Rule 6,2 [Orders on Motions] specifies that an "oral decision" shall
"constitute the order unless the . , . oral decision directs the submission or settlement of an order
in more extended form. The notation in the docket of a memorandum or of an oral decision that
docs not direct the submission or settlement of an order in more extended form shall constitute
the entry of the order."

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regard to training and grievance records, as well as documentation regarding the chemical agent
which was deployed. [Dkt. 60, pp. 1-2; see also Dkt. 46 (October 14, 2020 Transcript setting

forth rulings.)] However, the Court stipulated that although the plaintiff would be permitted to
read these materials and take notes, he could not retain copies or keep them in his cell. I note
that Courts have often specified such "controlled reviews" of sensitive documents in prisoner
cases in an effort to strike a balance between inmate-plaintiffs' discovery rights and the unique
security concerns applicable to correctional facilities. See, e.g., Carciew v. Fleehvoo^, No. 98

Civ. 4704 (NRD)(DFE), 2000 US.Dist. LEXIS 3807 at *2 (S.D.N.Y. Mar. 27, 2000)(adopting
controlled review as "reasonable, practical solution" in DOCS case)(copy mailed to plaintiff).
Plaintiffs underlying complaint appears to be that he has not received the same access to

DOCS materials as did plaintiffs attorneys in Culhreafh v. Griffm^ 17 Civ. 3406 (KMK),
another pending case involving the same underlying incident at Green Haven. There is no
question that pro se litigants are at a disadvantage relative to litigants who have counsel, and that
the disadvantages are even greater whether {he pro se litigant is confined to prison. But the law

Defense counsel must, upon request, provide any or all documents presented to plaintiff
upon "controlled review" to the Court for consideration in connection with summary judgement
or other motion practice, and shall make the documents available to plaintiff for use at trial,
Plaintiff also seeks a report prepared by an expert. Dr. Jonathan Borak, who was engaged

by plaintiffs pro bono counsel in the Cvlbreath matter. Based on plaintifFs m forma panperis
status, the Court assumes that plaintiff is not in a position to engage Dr. Borak or another expert

witness, so the report would presumably be inadmissible hearsay even if plaintiff had it and
sought to introduce it at trial, [Dkts. 1, 4.] In any event, defense counsel represents that the
Borak expert report is covered by a protective order in the Cnlbreath case, which stipulates that
(with non-pertinent exceptions) covered materials "shall not be released or disclosed in any
manner to any person who is or was an inmate in the custody ofDOCCS." Czdbreath v. Griffin,,

17 Civ. 3406 (KMK)(AEK), ECF Dkt. 59, p. 5. This Court will not circumvent that proviso by
ordering production to plaintiff Baptiste of a document which has been explicitly withheld from
plaintiff Culbreath.

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is clear that there is no entitlement to court-appointed counsel in civil cases, see In Re Martin-

Trfgona, 737 F.2 1254, 1260 (2d Cir. 1984), and the Court of Appeals has Instructed that
volunteer attorney time is a "precious commodity" and that applications to solicit pro bono
counsel should not be granted "indiscriminately." Cooper v. A, Sargenti Co. 877 F.2d 2d 170,

172 (2d Cir, 1989). Applying the Second Circuit standards for pro bono referrals, Judge Roman
recently denied plaintiffs application for court appointed counsel, albeit without prejudice, so
plaintiff musl litigate within the constraints applicable to pro se/pvisoner litigants, [Dkt, 62, p.2.]
Plaintiffs motion for reconsideration is DENIED. Defense counsel is directed to notify
Judge Roman within seven (7) days in accordance with Dkt, 62.

Dated: July 23, 2021
White Plains, New York

SOORlXRED
"!

.„.-•'

PauTE/Davison, U.S.M.J.