Anson v. United States of America et al

Filing 119

DECISION AND ORDER denying without prejudice 115 Motion. Signed by Hon. H. Kenneth Schroeder, Jr. on November 2, 2011. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DONALD ANSON,
Plaintiff,

07-CV-0035A(Sr)

v.
UNITED STATES OF AMERICA,
Defendant.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #7.

Plaintiff, who is proceeding pro se, commenced this action pursuant to the
Federal Tort Claims Act (“FTCA”), Title 28, United States Code, Section 1346(b), on or
about January 24, 2007. Plaintiff alleges that on April 13, 2005, while in the custody of
the United States Marshal Service, he was injured as he entered a Ford Expedition
which the United States Marshal Service was using to transport him from the Buffalo
Federal Detention Facility to a court appearance at the United States District Court for
the Western District of New York in Rochester, New York. Dkt. #1. Since the filing of
the complaint, the parties have been engaged in discovery, including, document
requests, interrogatories, requests for admissions, as well as the taking of plaintiff’s
deposition. Presently pending before this Court is plaintiff’s motion seeking an Order

that the Court “deem as admitted” certain facts presented to the defendant in plaintiff’s
Requests for Admission. Dkt. #115. For the following reasons, plaintiff’s motion is
denied. However, the Court takes this opportunity to express its displeasure with the
failure of counsel for the defendant to comply with the Local Rules for the Western
District of New York, specifically, Local Rule 5.2(f), as well as the rules governing
electronic case filings, as provided in the Administrative Procedures Guide for the
Western District of New York. The Court reminds counsel for the defendant that the
only official file and record pertaining to any case pending in the Western District of
New York is that which has been electronically filed. In other words, documents
maintained in Chambers’ case file are not part of the official record and would not be
part of a record on appeal. Finally, the Court hereby advises the Assistant United
States Attorney assigned the responsibility of handling this matter that he must take
immediate steps to electronically file all discovery related materials in compliance with
Local Rule 5.2(f), as well as electronically file all responses to plaintiff’s motions that
have not been electronically filed to date, for example, defendant’s response to the
instant motion, a letter dated September 29, 2011. Be further advised that defendant’s
failure to comply with this Court’s directive by no later than November 18, 2011 may
result in sanctions.

BACKGROUND
On April 13, 2005, plaintiff, Donald Anson, was a federal pre-trial detainee
in connection with an Indictment pending before the Hon. Charles J. Siragusa. See

-2-

United States v. Donald Anson, Docket No. 6:04-CR-6180. As he was being
transported from the Buffalo Federal Detention Facility to the United States District
Court in Rochester, New York, plaintiff alleges that a Deputy United States Marshal
instructed him to climb over a partially folded down seat of the vehicle he was being
transported in while he was handcuffed to a waist chain and had his ankles shackled.
In the process of climbing over the seat, plaintiff further alleges that he caught his right
foot and ankle chain on the back of the partially folded seat, fell onto his left elbow and
injured his left shoulder. Dkt. #1. Plaintiff further claims that a Deputy United States
Marshal explained to him that there was a loose piece of rubber weather-stripping at the
top of the rear passenger-side door and that since the section of the loose weatherstripping would hang down when the door was opened, plaintiff and the others being
transported would need to use the rear driver side door to enter and exit the vehicle. Id.

As noted above, during the pendency of this case, plaintiff has availed
himself of many of the discovery devices provided in the Federal Rules of Civil
Procedure. Specifically, plaintiff has sought from the defendant the production of
documents, answers to interrogatories and requests for admission. At issue here is
plaintiff’s Requests for Admission (Dkt. #109) and plaintiff’s request that the Court
“deem as admitted” request numbers 6, 7, 8, 10, 12, 13, 15, 16, 21, 22, 24, 27, 28, 30,
31, 32, 33 and 34. Dkt. #115. In support of the instant motion, plaintiff asserts that
defendant violated Rule 36(a)(4) of the Federal Rules of Civil Procedure when it
answered “unknown to me” without any statement of what “reasonable inquiry” was
made and further, when it failed to supply a statement that “the information it knows or
-3-

can readily obtain is insufficient to enable it to admit or deny” a particular request. See
Fed.R.Civ.P. 36(a)(4). Moreover, plaintiff argues that defendant further violated Rule
36(a)(3) because defendant failed to respond to the Requests for Admission within the
thirty (30) day time limit. See Dkt. #115.

DISCUSSION AND ANALYSIS
Rule 36 of the Federal Rules of Civil Procedure provides the scope and
procedure for Requests for Admission, including the time for responding and the
procedure for filing a motion concerning the sufficiency of the answers or objections.
Specifically, Rule 36(a)(3) provides, in pertinent part:
[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. . . .
Fed.R.Civ.P. 36(a)(3). Moreover, Rule 36(a)(4) provides:
[i]f a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond to the
substance of the matter; and when good faith requires that a
party qualify an answer or deny only a part of a matter, the
answer must specify the part admitted and qualify or deny
the rest. The answering party may assert lack of knowledge
or information as a reason for failing to admit or deny only if
the party states that it has made reasonable inquiry and that
the information it knows or can readily obtain is insufficient
to enable it to admit or deny.
Fed.R.Civ.P. 36(a)(4).

-4-

Here, plaintiff’s Requests for Admission were served on March 29, 2011
and electronically filed on April 1, 2011. Dkt. #109. As provided in the Federal Rules of
Civil Procedure, defendant’s responses to plaintiff’s Requests for Admission were due
30 days from service, on or about May 1, 2011. A Status Conference scheduled for
April 24, 2011 was re-scheduled to May 26, 2011. Dkt. #110. During the May 26, 2011
Status Conference, counsel for the defendant advised the Court and the plaintiff that he
was awaiting responses to plaintiff’s Requests for Admission from United States
Marshal Service Senior Inspector Christopher Pfohl. The Court noted that the
responses to plaintiff’s Requests for Admission had been outstanding far too long and
directed counsel for the defendant to supply Senior Inspector Pfohl’s responses within
two weeks. In addition to addressing the outstanding Requests for Admission, during
the May 26, 2011 Status Conference, the Court further ordered that plaintiff be allowed
to prepare written interrogatories directed to two Deputy United States Marshals and to
submit those written interrogatories to the defendant by June 30, 2011 and the
defendant was ordered to supply responses by July 29, 2011.

Consistent with this Court’s Order, on or about June 10, 2011, counsel for
the defendant supplied the plaintiff and the Court with Senior Inspector Pfohl’s
responses to plaintiff’s Requests for Admission dated May 26, 2011. It is undisputed
that defendant’s responses to plaintiff’s Requests for Admission were served well over
the thirty (30) day time limit set forth in Rule 36(a)(3) of the Federal Rules of Civil
Procedure. The Court has previously admonished counsel for the government

-5-

concerning its dilatory tactics and gamesmanship with respect to the conduct of
discovery and that any further delays will not be tolerated.

With respect to the substance of defendant’s responses to plaintiff’s
Requests for Admission, plaintiff asks this Court to deem as admitted the following
requests: 6, 7, 8, 10, 12, 13, 15, 16, 21, 22, 24, 27, 28, 30, 31, 32, 33, and 34. Dkt.
#115. In support of this request, plaintiff complains that defendant’s answer to each of
the listed requests, “unknown to me,” was insufficient in that it failed to include an
explanation of what inquiry was made and further, that the answers lacked a statement
that the information it knows or can readily obtain is insufficient to enable it to admit or
deny the request, and therefore, the defendant had violated Rule 36(a)(4). Since the
filing of the instant motion on July 27, 2011, the Court held a Status Conference on
August 23, 2011, wherein the Court directed the defendant to review the instant motion,
including the attachments, specifically, plaintiff’s Requests for Admission and
defendant’s response and to respond to the instant motion no later than September 16,
2011. Thereafter, by letter dated September 7, 2011, defendant purported to clarify its
answers to plaintiff’s Requests for Admission and enclosed an unsigned, undated
document titled, “Clarification of Responses by Christopher Pfohl, given on
05/26/2011.” On September 29, 2011, counsel for the defendant submitted a letter to
the Court, with a copy to plaintiff, purporting to respond to the instant motion, as noted
above, this letter is not yet part of the Court’s official electronic file. In that letter,
counsel for the defendant states, in pertinent part:

-6-

[i]n the instant case, Mr. Anson claims that the Government
has failed to properly respond in a timely manner to his
Request For Admission. The Government denies this claim,
and submits that it has responded to every one of Mr.
Anson’s claims within a reasonable time frame and within
the time frame ordered by the Court. Deputy Christopher
Pfohl first responded to Mr. Anson’s questions on May 16,
2011 [sic] and again on September 7, 2011. This was done
pursuant to the Court’s Order and in an effort to clarify his
original response. The Government has routinely notified
the Court and the plaintiff during the many status
conferences when a response would be delayed, and the
reason for such delay. In fact, the Government asserts that
the number of requests submitted by Mr. Anson have been
numerous, duplicative and has gone well beyond what would
be allowed in a case where the plaintiff was not appearing
Pro Se.
Letter dated September 29, 2011 from AUSA Robinson to Hon. H. Kenneth Schroeder,
Jr.

As a threshold matter, the Court agrees with plaintiff that defendant’s
initial response to his Requests for Admission was untimely and deficient in certain
respects so as to violate Rule 36 of the Federal Rules of Civil Procedure. In addition,
the Court notes that, notwithstanding the clear Order of this Court that defendant “shall
respond to the [instant motion] no later than September 16, 2011” (Dkt. #118), counsel
for the defendant did not submit his response until nearly two weeks later, on
September 29, 2011. What is more, counsel for the defendant did not even offer this
Court or the plaintiff an explanation for the delay in the submission of his response.

In addition to counsel for the defendant’s complete disregard for the time
deadlines set forth in the Federal Rules of Civil Procedure, as well as the failure to obey
-7-

the deadlines set by this Court, defendant’s initial response and its purported
“clarification” are insufficient responses to plaintiff’s Requests for Admission as required
by Rule 36 of the Federal Rules of Civil Procedure. Based upon a careful review of
plaintiff’s Requests for Admission, defendant’s initial response and defendant’s
purported “clarification,” this Court has concluded that in preparing its responses,
defendant has failed to recognize that requests for admission are directed to a party,
not to a particular individual. The fact that the defendant elected to submit plaintiff’s
requests for admission to United States Marshal Service Senior Inspector Christopher
Pfohl for response does not mean that if Senior Inspector Pfohl does not have personal
knowledge of a particular fact or was not involved in the alleged incident so as to
provide a response, the inquiry ends there. To the contrary, the party to whom the
requests for admission was directed, the defendant, the United States of America, is
required to comply with the requirements set forth in Rule 36 of the Federal Rules of
Civil Procedure. In other words, defendant cannot avoid responding to plaintiff’s
Requests for Admission by simply stating that one individual was not involved or lacks
personal knowledge. Rather, the defendant is obligated by Rule 36 of the Federal
Rules of Civil Procedure to supply an answer consistent with the requirements as
provided in subdivision (a)(4).

-8-

Accordingly, for the foregoing reasons, defendant is hereby directed to
supply complete responses, consistent with the requirements of Rule 36 of the Federal
Rules of Civil Procedure, to plaintiff’s Requests for Admission no later than November
18, 2011. Furthermore, plaintiff’s motion is denied without prejudice.

SO ORDERED.

Dated:

Buffalo, New York
November 2, 2011
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

-9-