Boyd v. Guthrie et al
Filing
103
ORDER denying 97 Letter Motion for Discovery. At a recent conference, a dispute arose over whether Defendants were required to produce the disciplinary records of Defendant Cesar Gonzalez, after Gonzalez affirmed in a response to Plaintiff' ;s interrogatory that he was investigated for a complaint of excessive use of force and inappropriate touching. Defendants were directed to submit a letter outlining their position for why they were not required to produce Gonzalez's disciplin ary records. After consideration, Defendants' request to withhold Gonzalez's disciplinary records is DENIED, pending the Court's in camera review. Defendants are directed to submit Gonzalez's disciplinary records to the Court fo r in camera review by no later than November 1, 2024. Contrary to Defendants' contention, it is well established that a plaintiff is entitled to disciplinary information of a defendant when that information is "similar to the conduct all eged in the complaint or... raises questions about [the defendant's] credibility," whether the information was "substantiated or not." Henry v. City of New York, No. 1:17-cv-03450(JGK)(SDA), 2021 WL 6055266, at *1 (S.D.N.Y. Nov. 19, 2021). Here, the complaint against Gonzalez was for excessive force and inappropriate touching, the same conduct alleged by Plaintiff in his complaint. Therefore, Plaintiff is entitled to production of the disciplinary records of Gonzalez afte r in camera review by this Court. See Saavedra v. City of New York, No. 19 Civ. 7491(JPC), 2021 WL 104057, at *1 (S.D.N.Y. Jan. 12, 2021). The Clerk of the Court is kindly directed to close the gavel associated with ECF No. 97. SO ORDERED. (Signed by Magistrate Judge Victoria Reznik on 10/25/2024) (ks)
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES
DIVISION OF STATE COUNSEL
ATTORNEY GENERAL
LITIGATION BUREAU
October 8, 2024
Via ECF
Hon. Victoria Reznik
United States Magistrate
Southern District of New York
300 Quarropas Street
White Plains, New York 10601-4150
Re:
Boyd v. Guthrie, et al., 22 CV 8549 (NSR) (VR)
Dear Judge Reznik:
I write on behalf of Defendants Correction Officer Charles Guthrie, Correction Officer
Asantewa K. Tulloch, Correction Sergeant Jose Candelario, Nurse Elizabeth Pennisi, 1 Senior
Offender Rehabilitation Coordinator Marcia N. Regisford, Superintendent Michael Capra, Deputy
Superintendent Elaine Velez, Correction Officer Vito G. Marsico, Correction Officer Rondy D.
London, Correction Sergeant Gabriel A. Martinez, 2 Correction Sergeant Julio C. Gonzalez, 3
Correction Officer Leon K. Lowe, Correction Officer Santiago Vasquez Felix, 4 Correction Officer
Gonzalez and Correction Officer Alexander (“Defendants”), in response to this Court’s Order at
the Status Conference on October 1, 2024, directing the Defendants to provide an explanation as
to why any and all disciplinary records of the Defendants should not be produced in response to
the Plaintiff’s oral Rule 37(a) motion for the same. (Doc. #s 90, 95)
By way of background, Defendants served Discovery Responses and Objections to
Plaintiff’s First Request for the Production of Documents on May 9, 2024. A copy of said
Responses is attached as Exhibit A. It should be noted that the first request from the Plaintiff and
the response to the same was as follows:
REQUEST NO. 1:
Any and all disciplinary records of the following defendants C.O. Lowe, C.O.
Gonzalez, Sgt. Gonzalez, C.O. London, C.O. Marsico, Sgt. Candelario, C.O.
Alexander, C.O. Guthrie, C.O. Tulloch, that has been generated by DOCCS, this
Sued herein as “Elizabeth Pemisi.”
Sued herein as “Sergeant Martinez.”
3
Sued herein as “Sergeant Gonzalez.”
4
Sued herein as “Felix Santiago Vasquez.”
1
2
28 Liberty Street, New York, New York 10005 ● Tel.: (212) 416-8610 ● www.ag.ny.gov
Hon. Victoria Reznik
October 8, 2024
Page 2 of 3
request includes investigation reports, complaints.
RESPONSE TO REQUEST NO. 1:
Defendants object to this request on the grounds that the same is overbroad,
irrelevant, unduly burdensome, and not proportional to the needs of the case.
Defendants object on the grounds that producing disciplinary information about
DOCCS staff to incarcerated individuals may undermine correctional security. In
addition, this action involves the alleged treatment Plaintiff received while at Sing Sing
Correctional facility from March 20, 2022 through June 29, 2002. See Amended
Complaint pp. 41-55. The complaints allege use of force, loss of privileges, failure to
provide medical treatment, sexual assault, destruction of property, threats, and failure
to protect him from other inmates. Id. at pp. 41-55. Defendants further object to this
request on the grounds that the documents requested are privileged and confidential
under, inter alia, the N.Y. Personal Privacy Protection law, Public Officers Law § 91 et
seq., and that disclosure would constitute an unwarranted invasion of privacy, would
disrupt the order and effective functioning of the correctional facility, would jeopardize
institutional safety and correctional goals and the safety of staff, and potentially subject
staff to intimidation, harassment and/or extortion. Notwithstanding and without
waiving or in any way limiting general or specific objections, Defendants were never
disciplined for any actions alleged in the Complaint, nor were Defendants previously
disciplined for use of force, loss of privileges, failure to provide medical treatment,
sexual assault, destruction of property, threats, and failure to protect one inmate from
other inmates, and as such any reports are irrelevant to any claim or defense in this
action.
With respect to Plaintiff’s interrogatories, Defendants completely responded to the same
as of September 19, 2024, and have provided the same previously. A copy of said Responses is
attached as Exhibit B. The same will again be mailed under separate cover to the Plaintiff. Plaintiff
stated on October 1, 2024, that Defendants admitted that at least one of the Defendants,
Correctional Officer Cesar Gonzalez was disciplined. The pertinent Request and Response with
respect to Correctional Officer Cesar Gonzalez are as follows:
Interrogatory No. 11: Since being employed with DOCCS have you been the
subject of any investigation for excessive use of force, false reporting, or sexual
misconduct? If yes, please describe each instance.
Response No. 11: Defendants object to the interrogatory as calling for
information concerning incidents involving other incarcerated individuals disclosure of
which might jeopardize correctional security. Subject to that objection, Defendant
Gonzalez responds with the following answer: Yes, I have been the subject of an
investigation for complaints of excessive use of force and inappropriate touching, but
those complaints were found to be unsubstantiated.
The other Defendants were asked the same or a similar question, and gave a negative
answer.
Defendants reiterate the grounds expressed above, which apply to all of the Defendants.
28 Liberty Street, New York, New York 10005 ● Tel.: (212) 416-8610 ● www.ag.ny.gov
Hon. Victoria Reznik
October 8, 2024
Page 3 of 3
Plaintiff’s document request is not limited to matters germane to this lawsuit. In any event,
disclosure of personnel matters to incarcerated individuals creates security risks, included but not
limited to revealing information that may make correctional staff vulnerable or subject to
blackmail attempts, as well as redisclosure to other incarcerated individuals. Further, there is no
relevant responsive information. None of the Defendants have been disciplined for mistreatment
of incarcerated individuals. And, the allegation of mistreatment involving Defendant Gonzalez
was found to be unsubstantiated. Accordingly, Defendants respectfully request that the Court deny
the relief sought by Plaintiff for the production of any and all disciplinary records of the
Defendants. Finally, as Plaintiff is pro se and any production would be made directly to him and,
if he had been represented, any production of the material sought would be made pursuant to a
protective order containing an attorney’s eyes-only provision prohibiting disclosure to Plaintiff,
the Court should review any document contemplated for production in camera for relevance and
prejudice before directing any disclosure to Plaintiff.
I thank the Court for its consideration of this matter.
Respectfully submitted,
/s/ John E. Jerman
John E. Jerman
Assistant Attorney General
Cc:
Nyjee Boyd
15-B-2063
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562-5441
Pro se
At a recent conference, a dispute arose over whether Defendants were required to produce the disciplinary records of
Defendant Cesar Gonzalez, after Gonzalez affirmed in a response to Plaintiff's interrogatory that he was investigated for
a complaint of excessive use of force and inappropriate touching. Defendants were directed to submit a letter outlining
their position for why they were not required to produce Gonzalez's disciplinary records. After consideration,
Defendants' request to withhold Gonzalez's disciplinary records is DENIED, pending the Court's in camera review.
Defendants are directed to submit Gonzalez's disciplinary records to the Court for in camera review by no later than
November 1, 2024.
Contrary to Defendants' contention, it is well established that a plaintiff is entitled to disciplinary information of a
defendant when that information is “similar to the conduct alleged in the complaint or . . . raises questions about [the
defendant’s] credibility,” whether the information was “substantiated or not.” Henry v. City of New York, No. 1:17cv-03450(JGK)(SDA), 2021 WL 6055266, at *1 (S.D.N.Y. Nov. 19, 2021). Here, the complaint against Gonzalez was for
excessive force and inappropriate touching, the same conduct alleged by Plaintiff in his complaint. Therefore, Plaintiff is
entitled to production of the disciplinary records of Gonzalez after in camera review by this Court. See Saavedra v. City
of New York, No. 19 Civ. 7491(JPC), 2021 WL 104057, at *1 (S.D.N.Y. Jan. 12, 2021).
The Clerk of the Court is kindly directed to close the gavel associated
with ECF No. 97.
Dated: 10/25/2024
28 Liberty Street, New York, New York 10005 ● Tel.: (212) 416-8610 ● www.ag.ny.gov
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