Tafari v. Gilmore, et al
Filing
90
ORDER granting in part and denying in part 85 Motion for Disclosure. Signed by Hon. Hugh B. Scott on 11/5/2012. (JRA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
Injah Tafari,
Plaintiff,
Hon. Hugh B. Scott
02CV403S
v.
Decision &
Order
James Gilmore et al.,
Defendant.
_________________________________________
Before the Court is the plaintiff’s motion to deem certain facts admitted by the defendants
in this case (Docket No. 85).
Background
The plaintiff, Injah Tafari (“Tafari”), commenced this action alleging claims challenging
the conditions of his confinement and asserting excessive force claims against various correction
officers at the Auburn Correctional Facility, the Southport Correctional Facility, and the Attica
Correctional Facility.1 (Docket No. 15, Amended Complaint). Hon. Richard J. Arcara dismissed
1
The plaintiff’s initial complaint was dismissed on August 16, 2002 by Hon. David G.
Larimer based upon the “three strikes” rule of 28 U.S.C. §1915(g). (Docket No. 6). After
various motions for reconsideration and an appeal to the Second Circuit (Docket No. 11), the
case was reopened upon the plaintiff’s motion on June 27, 2008. (Docket No. 14). An amended
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the plaintiff’s claims relating to the conditions of confinement, as well as certain supervisory
claims against corrections officials. (Docket No. 19 at pages 11 and 13). The plaintiff was
permitted to proceed with the following claims: (1) excessive force claims against defendant
Richard Cox2, a correctional officer at the Auburn Correctional Facility (Amended Complaint at
¶¶ 19-22); (2) excessive force claims against defendants Randy Vaness, Robert Held, Franklin
Zywicki, Daniel Hable, Timothy Harris, and James Casselbery, all corrections officers at the
Southport Correctional Facility (Amended Complaint at ¶¶ 26-30); (3) a failure to protect claim
against defendants Gregory Manos and Richard Donahue, corrections officers at the Southport
Correctional Facility (Amended Complaint at ¶31)3; and (4) a claim against defendant James
Gilmore, a correctional officer at the Attica Correctional Facility, who allegedly threatened the
plaintiff and instigated the alleged assault by Vaness and other defendants (Amended Complaint
at ¶¶ 12, 18). (Docket No. 19 at page 12).
Counsel was appointed to represent the plaintiff in this matter and a scheduling order was
entered allowing for discovery and other pretrial proceedings. (Docket No. 73).4 The parties
complaint was subsequently filed. (Docket No. 15).
2
It does not appear that Cox has ever been served in this action.
3
This claim was also asserted against a “Sergeant Genter.” The plaintiff provided
additional information regarding this individual (Docket No. 40). The Attorney General’s Office
was directed to attempt to locate the individual identified by the plaintiff. (Docket No. 41). Upon
investigation, the Attorney General represented that an individual named Vernon Genter, worked
at Southport at the time of the alleged incidents in this case, however, that Mr. Genter is
deceased. (Docket No. 42 at ¶ 6). Prior to his death, he had never been served with a summons
and complaint in this matter.
4
Due to a conflict of interest, the initially appointed counsel was relieved and current
counsel was appointed to represent the plaintiff in this matter on May 27, 2011. (Docket No. 74).
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subsequently advised the Court that significant efforts have been made to reach a settlement in
this case. (See Docket Nos. 82, 84). It appears that the resolution of whether the defendants have
admitted, for the purposes of this lawsuit, that the plaintiff was not a confidential informant may
impact the parties ability to reach a settlement in this case.
Motion to Deem Fact Admitted
The plaintiff seeks to have it deemed admitted that (a) neither the plaintiff nor any of his
visitors ever gave the defendants any information about other prisoners at Southport Correctional
Facility or any facility and (b) that the defendants wrongly named the plaintiff and his visitors as
a “Rat” or confidential informant. (Docket No. 85 at ¶ 1).5
It is not disputed that the plaintiff, then pro se, served a Request for Admissions upon the
defendants on April 29, 2010 requesting, among other things, that the defendants admit that
neither he nor his visitors gave the defendants information about other prisoners and that the
defendants wrongly named him a “Rat.” (Docket No. 31). It is also undisputed that the
defendants did not respond to the Request for Admissions in any manner.
Pursuant to Rule 36(a)(3), a “matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or its attorney.” Rule 36(b) provides:
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By the instant motion, the plaintiff does not seek to have the other Requests for
Admission included in the discovery request (i.e. that the plaintiff was assaulted at the Auburn
and Southport Correctional Facilities) to be deemed admitted. The Court notes that these requests
for admission seek to have the defendants admit that the plaintiff was assaulted on certain dates,
but the requests do not identify the individuals that purportedly committed the assaults. In any
event, inasmuch as these requests are not the subject of the instant motion, the Court need not
consider the language of these requests.
3
A matter admitted under this rule is conclusively established unless
the court, on motion, permits the admission to be withdrawn or
amended. Subject to Rule 16(e), the court may permit withdrawal
or amendment if it would promote the presentation of the merits of
the action and if the court is not persuaded that it would prejudice
the requesting party in maintaining or defending the action on the
merits. An admission under this rule is not an admission for any
other purpose and cannot be used against the party in any other
proceeding.
Generally, it has been held that Rule 36 is self-executing, and that it is unnecessary for the
Court to deem a matter admitted. Brumby v. Sharinn & Lipshie, P.C., 2011 WL 6396385
(E.D.N.Y.,2011)(As to the plaintiff's request that her requests to admit be deemed admitted based
on the defendant's failure to timely respond, such action is not necessary. Rule 36 is
self-executing. If the requests were duly served and not timely responded to, they are deemed
admitted.); Allstate Ins. Co. v. Howell, 2010 WL 5313760 (E.D.N.Y.,2010)(A matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection. Once admitted, the matter that is the subject of a
request for admission is conclusively established unless the court, on motion, permits the
admission to be withdrawn or amended. The defendants have made no such motion.
Accordingly, the matters covered in the plaintiffs' requests for admissions are conclusively
established.)
The defendants argue that they were not obligated to respond to the Request for
Admissions because Rule 26(b) of the Local Rules for the Western District of New York states
that a party may not seek discovery prior to the Rule 26(f) conference absent the agreement of the
parties or a Court order. (Docket No. 87 at ¶¶5-9). However, because the plaintiff was pro se at
the time the Request for Admissions was served, the mandatory disclosure and conference
4
requirements under Rules 26(a) and (f) of the Federal Rules of Civil Procedure (which serve as
the basis for Local Rule 26(b)) do not apply. See Rule 26(a)(1)(B) exempting pro se actions
from disclosure requirements; and Rule 26(f)(1) exempting such cases from the conference
requirement. Thus, the defendants cannot justify a failure to respond to a discovery request upon
the fact that the discovery request was served prior to a Rule 26(f) conference, when, as here, a
Rule 26(f) conference was not required.
In light of the fact that the defendants did not respond to the Request for Admissions, and
have not moved to withdraw or amend any admission under Rule 26(b), the Court finds that
pursuant to the self-executing language of Rule 36(a)(3) the defendants have admitted that
neither the plaintiff, nor his visitors, “gave the defendants any information about another inmate
at Southport Correctional Facility or any facility” and that the plaintiff was “wrongly named a
‘Rat’ by the defendants.” Pursuant to Rule 36(b) these admissions may be used only for the
purposes of this lawsuit and may not be used for any purpose other than the litigation of this
matter.
Prior to the most recent attempts at settlement, the Court had directed the parties to
contact the Chambers of Chief Judge William M. Skretny to obtain dates for the filing of pretrial
statements and a trial in this matter. (Docket No. 83). That Order was vacated after the parties
advised the Court that a settlement was possible in this matter. (Docket No. 84). In light of the
above decision regarding the admissions in this case, if the parties have not reached a settlement
in this matter within 30 days of the date of this Order, the parties shall contact the Chambers of
Chief Judge Skretny to obtain dates for the submission of pretrial statements and a trial in this
case.
5
So Ordered.
/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
November 5, 2012
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