Davidson v. Canfield et al
Filing
59
ORDER granting in part and denying in part 37 Motion for Protective Order; denying 39 Motion for Contempt. Signed by Hon. H. Kenneth Schroeder, Jr on 3/16/2012. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
RONALD DAVIDSON,
Plaintiff,
v.
07-CV-599S(Sr)
WESLEY CANFIELD, M.D.,
Defendant.
_________________________________
DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, pursuant to 28 U.S.C. § 636(b)(1)(A), for all pretrial matters. Dkt. #18.
Plaintiff, Ronald Davidson, filed this action pursuant to 42 U.S.C. § 1983,
alleging that between June and December 24, 2004, while he was incarcerated at the
Elimira Correctional Facility (“Elmira”), Wesley Canfield, M.D., Facility Health Services
Director at Elimira, arranged for plaintiff’s transfer to Shawangunk Correctional Facility
(“Shawangunk”), so as to interfere with scheduled foot surgery and urological surgery,
in retaliation for plaintiff’s filing of Davidson v. Desai, 03-CV-121. Dkt. ## 1 & 5.
Following a preliminary pretrial conference on April 1, 2010, the Court
issued a Case Management Order providing that
defendants may depose the plaintiff pursuant to
Fed.R.Civ.P. 30(a), in person, by video conferencing or by
telephone at the correctional facility where he presently
resides. The plaintiff shall be provided reasonable notice, at
least 30 days in advance of the deposition, pursuant to
Fed.R.Civ.P. 30(b)(1). If the plaintiff’s deposition is to be
taken in person, such security measures shall be taken as
are necessary in the opinion of the superintendent of the
correctional facility where the deposition is to be taken,
including, but not limited to, the presence of corrections
officers in the examining room, but provided that no officer
assigned as a member of a security detail is a party to this
action.
Dkt. #24, ¶ 2.
Defendant filed initial disclosures pursuant to Rule 26(a)(1) of the Federal
Rules of Civil Procedure, noting that they would provide plaintiff with copies of his
medical records upon receipt following plaintiff’s execution of an authorization
permitting the release of such records. Dkt. #26.
By Notice of Deposition dated May 31, 2011, the Assistant Attorney
General (“AAG”), notified plaintiff that his deposition would take place “[o]n a day during
the week of July 3, 2011 at 10:00 a.m.” and “at a facility to be determined by DOCS.”1
Dkt. #36. The AAG declares that he requested plaintiff’s transfer to Attica for deposition
on May 31, 2011. Dkt. #42, ¶ 17.
By Notice of Motion dated June 5, 2011, plaintiff sought a protective order
directing the AAG to conduct his deposition at the facility in which he was residing, to
wit, Shawangunk, either in person or by videoconference, behind closed doors outside
1
The Department of Correctional Services (“DOCS”), and the Division of Parole have merged and
are now referred to as the Department of Corrections and Community Supervision (“DOCCS”).
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of the presence of employees of Shawangunk at a date and time that did not conflict
with scheduled medical appointments and only after plaintiff received copies of his
medical records. Dkt. #37. In support of his motion, plaintiff affirms that medical
issues, including several herniated and bulging lower spinal discs as well as urological
problems, prevent him from taking excessively long trips. Dkt. #37, ¶ 5. As a result of
these issues, planitiff agreed to participate in a non-jury trial before the Hon. Richard J.
Arcara by videoconference. Dkt. #37, ¶ 6. Plaintiff argues that if the court can conduct
a trial by videoconference, there is no reason the AAG cannot conduct a deposition by
videoconference, as other AAGs have done in other cases plaintiff has commenced
against correctional facility employees. Dkt. #37, ¶ ¶ 6, 7, 10. Moreover, plaintiff seeks
an Order similar to one entered February 14, 2011, in which the Hon. Richard J. Arcara
directed that the trial of Davidson v. Brzezniak, 95-CV-204, proceed by videoconference
from Shawangunk Correctional Facility without the presence of security staff in the
videoconferencing room. Dkt. #37, pp.8-9.
The AAG declares that on June 23, 2011, after reviewing plaintiff’s motion
for a protective order, he phoned Classification and Movement and informed them that
plaintiff’s deposition was cancelled. Dkt. #42, ¶ 25. By letter dated June 23, 2011, and
addressed to Classification and Movement and the Inmate Records Coordinators at
both Shawangunk and Attica, the AAG confirmed
that I have cancelled the deposition of inmate Ronald
Davidson (76-A-1166) which I had scheduled to be held at
Attica Correctional Facility on Wednesday, July 6, at 10 a.m.
Therefore Mr. Davidson does not need to be transferred to
Attica for that purpose.
Dkt. #42, p.16.
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By Notice of Motion dated June 26, 2011, plaintiff sought an order holding
the AAG in contempt of court for attempting to produce plaintiff for deposition at a time
and date which caused the cancellation of plaintiff’s surgery to remove a bunion. Dkt.
#39. Plaintiff also seeks permission to amend his complaint to challenge repeated
cancellations of this procedure. Dkt. #39.
In response to the motion for contempt, the AAG declares that he was
unaware that plaintiff was scheduled for surgery until he received plaintiff’s motion for
contempt on June 29, 2011. Dkt. #42, ¶¶ 27-29. The AAG seeks permission to depose
plaintiff in the Western District of New York, as that is the venue of this lawsuit and as it
is less costly to transfer plaintiff than to compensate the AAG for his time, travel
expenses and cost of accommodations should he be required to travel to Shawangunk.
Dkt. #42, ¶ ¶ 9-11 & 43-46. The AAG further declares that he strongly disfavors
videoconference depositions because of, inter alia, the time delay and difficulty
handling exhibits. Dkt. #42, ¶ 6. Finally, the AAG argues that the motion to amend
should be denied, as plaintiff’s concerns regarding the delay in surgery are not properly
venued in the Western District of New York and do not relate to the allegations set forth
in the instant complaint. Dkt. #42, ¶¶ 69-82.
In reply, plaintiff argues that regardless of the AAG’s preference and past
practice, this Court’s Case Management Order clearly provides for depositions at the
plaintiff’s current place of confinement. Dkt. #47, ¶ 31. Moreover, plaintiff states that in
each of his prior lawsuits, either the AAG travelled to the correctional facility in which
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plaintiff was residing or conducted the deposition by videoconference. Dkt. #47, ¶ 32.
Plaintiff seeks an evidentiary hearing to determine, inter alia, why his surgery did not go
forward once the deposition was cancelled or why, at the very least it wasn’t
immediately rescheduled. Dkt. #47, ¶ 34.
“A party may be held in civil contempt for failure to comply with a court
order if ‘(1) the order the contemnor failed to comply with is clear and unambiguous, (2)
the proof of noncompliance is clear and convincing, and (3) the contemnor has not
diligently attempted to comply in a reasonable manner.’” Paramedics Electromedicina
Comercial, LTDA v. GE Medical Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir.
2004), quoting King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995). “It need
not be established that the violation was willful.” Id..
In the instant case, the Court’s Case Management Order is clear and
unambiguous that plaintiff’s deposition should take place at the correctional facility
where he presently resides. Despite this provision, the AAG directed plaintiff’s transfer
to another facility for his convenience. As plaintiff was not actually transferred,
however, there is no evidence of noncompliance. Accordingly, there is no basis for a
finding of contempt.
Plaintiff’s motion for a protective order is granted in part. The AAG shall
reschedule and conduct plaintiff’s deposition in accordance with the provisions of the
Court’s Case Management Order and with the additional requirement that he shall
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confer with the correctional facility at which plaintiff is residing to avoid scheduling the
deposition on a date when plaintiff is already scheduled for medical appointments or
procedures.
As plaintiff’s medical records were produced on July 1, 2011 (Dkt. #40),
plaintiff’s request to hold the deposition in abeyance until such records are produced is
moot.
Finally, plaintiff’s motion to amend the complaint is denied without
prejudice given plaintiff’s failure to comply with the provisions of Local Rule 15, which
requires a movant seeking to amend or supplement a pleading to
attach an unsigned copy of the proposed amended pleading
as an exhibit to the motion. The proposed amended
pleading must be a complete pleading superseding the
original pleading in all respects. No portion of the prior
pleading shall be incorporated into the proposed amended
pleading by reference.
SO ORDERED.
DATED:
Buffalo, New York
March 16, 2012
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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