Smith v. Erie County Holding Center et al

Filing 160

ORDER resolving 132 Motion to Compel. Signed by Hon. H. Kenneth Schroeder, Jr on 3/21/2016. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM SMITH,
Plaintiff,
-v-

08-CV-0485Sr

MICHAEL BENSON, Superintendent, et al.,
Defendants.

DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Richard J.
Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #111.

Plaintiff commenced this action pursuant to 42 U.S.C. § 1983; the
Americans with Disabilities Act; and the Rehabilitation Act, alleging that during his
pretrial detention at the Erie County Holding Center (“ECHC”), and Erie County
Correctional Facility (“ECCF”), beginning in 2006 and continuing through February of
2008, he was denied appropriate medical care for his chronic mastoiditis; denied
reasonable accommodations for his severe hearing loss; and disciplined for failing to
obey an order he could not hear. Dkt. #7.

By Order entered May 31, 2011, the Court granted plaintiff’s motion to
appoint counsel. Dkt. #87.

Currently before this Court is plaintiff’s motion to compel discovery. Dkt.
#132.

Documents
Document Request #3 (property logs)
Document request #3 seeks copies of any and all property receipts,
property logs, or any such similar document in the custody of the ECHC/ECCF
concerning plaintiff for the period February 2006 through February 2008. Dkt. #132-7,
¶ 3.

Defendants respond that the requested items do not exist. Dkt. #132-8,
¶ 3.

Plaintiff argues that defendants’ response is incomplete because it fails to
indicate whether the information requested “never existed, once existed and was
destroyed, exists by a different name, or whether no such records are kept.” Dkt. #132,
¶ 58.

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.

-2-

Defendants shall supplement their response to clarify whether the
documents requested ever existed, and if so, attest to their efforts to locate the
documents or explain what happened to them.

Document Request #5 (housing logs)
Document request #5 seeks copies of all housing unit log books where
plaintiff was housed at the ECHC and ECCF for the period February 2006 through
February 2008. Dkt. #132-7, ¶ 5.

Defendants respond that the requested items do not exist. Dkt. #132-8,
¶ 5.

Plaintiff argues that defendants’ response is incomplete because it fails to
indicate whether the information requested “never existed, once existed and was
destroyed, exists by a different name, or whether no such records are kept.” Dkt. #132,
¶ 58.

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.

-3-

Defendants shall supplement their response to clarify whether the
documents requested ever existed, and if so, attest to their efforts to locate the
documents or explain what happened to them.

Document Request #7 (destination sheets)
Document request #7 seeks copies of all Housing Area and Destination
Sheets concerning plaintiff at the ECHC and ECCF for the period February 2006
through February 2008. Dkt. #132-7, ¶ 7.

Defendants produced housing area sheets but respond that the
destination sheets do not exist. Dkt. #132-8, ¶ 7.

Plaintiff argues that defendants’ response is incomplete because it fails to
indicate whether the information requested “never existed, once existed and was
destroyed, exists by a different name, or whether no such records are kept.” Dkt. #132,
¶ 58. Plaintiff also argues that the records produced for this request fail to indicate
where plaintiff was housed within each facility and whether deaf or otherwise disabled
inmates were housed in a designated area of either facility. Dkt. #132, ¶ 58.

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.
-4-

Defendants shall supplement their response to clarify whether the
destination sheets ever existed, and if so, attest to their efforts to locate them or explain
what happened to them. Defendants shall also produce any documents which indicate
plaintiff’s housing location during this time frame or state that no such documents ever
existed, or if they did exist, but can no longer be produced, attest to their efforts to
locate the documents or explain what happened to them. Although more properly
requested as an interrogatory, defendants shall inform plaintiff whether deaf inmates
were housed in a designated area of ECHC and ECCF.

Document Request #10 (observation logs)
Document request #10 seeks copies of all observation logs in the custody
of the ECHC and ECCF regarding plaintiff for the period February 2006 through
February 2008. Dkt. #132-7, ¶ 10.

Defendants respond that the requested items do not exist. Dkt. #132-8,
¶ 10.

Plaintiff argues that defendants’ response is incomplete because it fails to
indicate whether the information requested “never existed, once existed and was
destroyed, exists by a different name, or whether no such records are kept.” Dkt. #132,
¶ 58.

-5-

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.

Defendants shall supplement their response to clarify whether the
documents requested ever existed, and if so, attest to their efforts to locate the
documents or explain what happened to them.

Document Request #11 (phone logs)
Document request #11 seeks copies of all phone logs in the custody of
ECHC and ACCF regarding plaintiff for the period February 2006 through February
2008. Dkt. #132-7, ¶ 11.

Defendants respond that the requested items do not exist. Dkt. #132-8,
¶ 11.

Plaintiff argues that a document entitled “Policy and Procedure,” disclosed
by defendants in this litigation, indicates that when a hearing impaired inmate uses the
Telecommunication Devise for the Deaf (“TDD”), in the Echo Long Conference Room,
the name of the inmate and the beginning and ending times of telephone usage will be
logged in the Echo Long logbook. Dkt. #132, ¶ 54; Dkt. #133-14, p.2 & Dkt. #139, ¶ 5.
Plaintiff questions whether the defendants violated their policy by not keeping a phone
-6-

log for plaintiff or are violating their obligations to provide plaintiff with relevant
discovery. Dkt. #132, ¶ 55.

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.

Defendants shall supplement their response to clarify whether the
documents requested ever existed, and if so, attest to their efforts to locate the
documents or explain what happened to them.

Document Request #12 (incident reports)
Document request #12 seeks copies of all incident reports in the custody
of ECHC and ECCF concerning plaintiff together with corresponding narrative. Dkt.
#132-7, ¶ 12.

Defendants respond that the requested items do not exist. Dkt. #132-8,
¶ 12.

Plaintiff argues that defendants’ response is incomplete because it fails to
indicate whether the information requested “never existed, once existed and was
destroyed, exists by a different name, or whether no such records are kept.” Dkt. #132,
¶ 58.
-7-

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.

Defendants shall supplement their response to clarify whether the
documents requested ever existed, and if so, attest to their efforts to locate the
documents or explain what happened to them.

Document Request #16 (communications with USDOJ)
Document request #16 seeks copies of any correspondence, records of
phone calls or other documents demonstrating communication between ECHC or
ECCF staff and the United States Department of Justice between February 2006 and
February 2008 regarding medical treatment provided to inmates in compliance with the
ADA or Rehabilitation Act. Dkt. #132-7, ¶ 16.

Defendants object that the request was over broad, vague and unduly
burdensome, but respond that the documents requested are not retained in the manner
requested and could contain records protected by medical privacy laws. Dkt. #132-8,
¶ 16.

Plaintiff argues that defendants’ objections are improper given that it has
not requested that communications between ECCF and the USDOJ be produced in any
particular manner and that the possibility that such communications could contain
-8-

protected medical information does not warrant non-disclosure of responsive
documents. Dkt. #132, ¶ 42. Plaintiff suggests that any such information could be
disclosed pursuant to a protective order or redaction of identifying information. Dkt.
#132, ¶ 42.

Defendants generally respond that it is improper for plaintiff to request a
narrative response to a document demand and that plaintiff has requested documents
that “are not in existence or maintained in a manner as requested.” Dkt. #137, ¶¶ 6 &
8.

Defendants shall disclose any correspondence, records of phone calls or
other documents demonstrating communication between ECHC or ECCF staff and the
United States Department of Justice between February 2006 and February 2008
regarding medical treatment provided to inmates in compliance with the ADA or
Rehabilitation Act. To the extent that these communications contain protected health
information of individuals other than plaintiff, the documents may be altered to redact
individual identifiers and replace them with initials or assigned numbers.

Document Request #21 (medical department employees)
Document request #21 seeks the names of all persons employed in the
medical department at ECHC and ECCF in 2006, 2007 and 2008. Dkt. #132-7, ¶ 21.

-9-

Defendants objected that the request did not seek documents, was over
broad, unduly burdensome and could contain records protected by medical privacy
laws. Dkt. #132-8, ¶ 21 & 137, ¶ 9. Notwithstanding this objection, defendants agreed
to provide the name of the medical personnel. Dkt. #137, ¶ 9.

Although defendant provided a list of employees, plaintiff seeks additional
information such as job title, facility, etc. Dkt. #132-7, p.6 & Dkt. #139, ¶ 7.

Although more appropriately requested as an interrogatory and not
specifically requested in the initial document request, defendants shall delineate the job
title of each individual identified and the facility to which each individual was assigned.

Document Request #22 (medical director)
Document request #22 seeks the name of the medical director(s) at the
ECHC and ECCF in 2006, 2007 and 2008. Dkt. #132-7, ¶ 22.

Defendants objected that the request did not seek specifically identifiable
documents. Dkt. #132-8, ¶ 22. Notwithstanding this objection, defendants agreed to
provide the name of the medical director. Dkt. #137, ¶ 9.

Plaintiff replies that this information has not been provided. Dkt. #139, ¶ 8.

-10-

Although more appropriately requested as an interrogatory, to the extent
that defendants have not already done so, they shall identify by name any individual
holding the position of medical director at ECHC during 2006, 2007 and 2008 and any
individual holding the position of medical director at ECCF in 2006, 2007 and 2008.

Document Request #26 (medical records)
Document request #26 seeks copies of any medical records of plaintiff
obtained by the defendants pursuant to authorizations signed by plaintiff. Dkt. #132-7,
¶ 26.

Defendants responded that documents obtained by NYSDOCCS with the
plaintiff’s authorization were provided to plaintiff. Dkt. #132-8, ¶ 26.

Plaintiff replies that defendants have failed to provide copies of medical
records obtained by defendants through use of the authorization provided by plaintiff.
Dkt. #139, ¶ 9.

Defendants shall certify to the Court that it has provided plaintiff with
copies of any medical records obtained from third-parties through use of the
authorization provided by plaintiff.

-11-

Document Request #27 (prior lawsuits)
Document request #27 seeks copies of any prior lawsuits filed by or on
behalf of inmates at ECHC and ECCF asserting lack of or inappropriate medical
treatment or ADA violations for the last five years. Dkt. #132-7, ¶ 27.

Defendants objected that the request was over broad, vague and unduly
burdensome and responded that the documents requested are not maintained by the
defendants in the manner requested and could contain information protected by
medical privacy laws. Dkt. #132-7, ¶ 27.

Plaintiff argues that medical privacy laws do not protect publicly filed legal
documents. Dkt. #132, ¶ 44.

Defendants did not respond to this aspect of plaintiff’s motion to compel.

Defendants shall provide copies of any publicly filed lawsuits from 2006
through 2011 by or on behalf of inmates at ECHC and ECCF asserting lack of or
inappropriate medical treatment relating to complaints of chronic mastoiditis, ear
infections or hearing loss or ADA violations involving inmates with hearing impairments.

Document Request #28 (quality assurance committee)
Document request #28 seeks all records of the quality assurance
committee, including a list of members between 2006 and 2008. Dkt. #132-7, ¶ 28.
-12-

Defendants responded that they were investigating whether any such
records existed and expressed concern that any such records might infringe upon the
privacy rights of other inmates and/or contain information protected by medical privacy
laws. Dkt. #132-8, ¶ 28.

Plaintiff argues that a Quality Assurance Committee was created by the
ECHC Medical Department as early as 1997 and was supposed to meet at least
biannually to discuss the quality of medical and mental health treatment provided within
the ECHC. Dkt. #132, ¶ 45.

Defendants argue that the quality assurance committee requires
confidentiality in order to meet its goals and functions and that the documents
requested would have been created and maintained as part of the quality assurance
program, which assists in establishing procedures and policies specific to prison health,
including development and implementation of quality assurance measures, consistent
with applicable regulations and guidelines such as those established by the New York
State Department of Health and the New York State Department of Corrections. Dkt.
#137, ¶ 10.

Plaintiff notes that the New York State Commission on Corrections wrote
Sheriff Howard a letter indicating that it was awaiting a response to its inquiry about
plaintiff and had been informed that the matter had been referred to the Quality
Assurance Committee. Dkt. #139, ¶ 13.
-13-

The Court interprets this document demand to seek policies and
procedures regarding the administration of the quality assurance committee.
Defendants are directed to produce any such documents in existence for the time
period of 2006 through 2008. If there is no document listing the members of the quality
assurance committee during this time frame, defendants shall respond to this request
as though it was an interrogatory.

Document Request #29 (quality assurance committee)
Document request #29 seeks copies of all records, notes, memoranda,
correspondence, e-mails or other documents of the quality assurance committee for
2006 through 2008 related to plaintiff or any other inmate with a sensorial disability,
including records regarding compliance with the ADA or Rehabilitation Act and protocol
for handling inmates with sensorial disabilities. Dkt. #132-7, ¶ 29.

Defendants objected that the request infringes on the medical privacy of
other inmates, but responded that they continue to investigate whether any such
records exist. Dkt. #132-8, ¶ 29.

Defendants argue that the quality assurance committee requires
confidentiality in order to meet its goals and functions and that the documents
requested would have been created and maintained as part of the quality assurance
program, which assists in establishing procedures and policies specific to prison health,
including development and implementation of quality assurance measures, consistent
with applicable regulations and guidelines such as those established by the New York
-14-

State Department of Health and the New York State Department of Corrections. Dkt.
#137, ¶ 10.

Plaintiff notes that the New York State Commission on Corrections wrote
Sheriff Howard a letter (Dkt. #133-13), indicating that it was awaiting a response to its
inquiry about plaintiff and had been informed that the matter had been referred to the
Quality Assurance Committee. Dkt. #139, ¶ 13.

Defendants have not demonstrated that the documents requested are
privileged. See, e.g., Zikianda v. County of Albany, No. 12-CV-1194, 2013 WL 936446,
at *2-4 (N.D.N.Y. Mar. 8, 2013) (declining to recognize self-critical analysis privilege
and medical peer review privilege in the Second Circuit); Johnson v. Nyack Hosp., 169
F.R.D. 550, 557-560 (S.D.N.Y. 1996) (declining to recognize federal privilege protecting
confidentiality of medical peer review materials). To the extent that these
communications contain protected health information of individuals other than plaintiff,
the documents may be altered to redact individual identifiers and replace them with
initials or assigned numbers.

Document Request #34 (hearing loss policies)
Document request #34 seeks copies of all written policies, procedures,
manuals, or other directives regarding the treatment/handling of inmates with hearing
loss, including documents regarding accommodations or special services provided for
hearing impaired inmates. Dkt. #132-7, ¶ 34.
-15-

Defendants’ response to this document demand indicates that it produced
items responsive to this request. Dkt. #132-8, ¶ 34.

Plaintiff states that defendants have not responded. Dkt. #139, ¶ 14.

Defendants shall certify to the Court that it has provided plaintiff with
copies of all written policies, procedures, manuals or other directives regarding the
treatment/handling of inmates with hearing loss, including documents regarding
accommodations or special services provided for hearing impaired inmates.

Document Request #36 (number of hearing impaired inmates)
Document request #36 seeks records of the number of hearing impaired
inmates held in custody at ECHC and ECCF from 2003 through 2008, including dates
of incarceration. Dkt. #132-7, ¶ 36.

Defendants objected that the documents requested contained information
protected by medical privacy laws. Dkt. #132-8, ¶ 36.

In response to the motion to compel, defendants argue that they do not
maintain a document setting forth the names of hearing impaired inmates in custody.
Dkt. #137, ¶ 11.

Plaintiff notes that it is not requesting any identifying information and
seeks clarification as to the basis for defendants’ objection. Dkt. #139, ¶ 15.
-16-

Accepting defendants’ statement that it does not maintain a document
specifying the identities of hearing impaired inmates, defendants are directed to
respond to this demand as if it were requested by interrogatory. However, the demand
will be limited to the time frame of 2006, 2007 and 2008. Accordingly, defendants shall
provide plaintiff with the number of hearing impaired inmates held in custody at ECHC
and ECCF from 2006 through 2008, including dates of incarceration or certify to the
Court that such information is unavailable, in which case it shall document its efforts to
obtain such information.

Document Request #37 (hearing aid protocol)
Document request #37 seeks copies of any policies, protocols or
procedures for obtaining hearing aids for inmates, including any records indicated that
ECHC and/or ECCF ever purchased hearing assistive equipment/devices for inmates,
including the provider of such equipment; where backup batteries are maintained at the
ECHC and ECCF; and receipts for repairs to such equipment. Dkt. #132-7, ¶ 37.

Defendants responded that the request improperly requested factual
information rather than documents and that it was over broad, unduly burdensome, and
sought information protected by medical privacy laws. Dkt. #132-8, ¶ 37.

In response to the motion to compel, defendants argue that whether an
inmate received a hearing aid is protected health information pursuant to medical
privacy laws. Dkt. #137, ¶ 12.
-17-

To the extent that the responsive documents contain protected health
information of individuals other than plaintiff, the documents may be altered to redact
individual identifiers and replace them with initials or assigned numbers. To the extent
that there are no responsive documents, defendants shall certify to the Court whether
the documents requested ever existed, and if so, attest to their efforts to locate the
documents or explain what happened to them.

Document Request #38 (medical policies)
Document Request #38 seeks copies of any and all written policies,
procedure manuals, or other directives for treating inmates with chronic medical
conditions at the ECHC and ECCF in effect from February 2006 through February
2008. Dkt. #132-7, ¶ 38.

Defendants objected to the extent that this demand sought information
regarding inmates who were not hearing-impaired as over broad. Notwithstanding this
objection, defendants referred plaintiff to its response to request #34. Dkt. #132-8,
¶ 38.

Although defendants provided a manual entitled “Policy and Procedure –
Subject: Americans with Disabilities (ADA) Policy,” plaintiff has learned from another
attorney involved in similar litigation that there is a separate manual entitled “Policy and
Procedures Manual – Erie County Sheriff’s Office Holding Center Division Medical
Department (Medical Manual).” Dkt. #132, ¶ 53. Plaintiff argues that such a manual
-18-

would be responsive to its document request and should have been disclosed by
defendants. Dkt. #132, ¶ 53.

Defendants shall produce the manual entitled “Policy and Procedures
Manual – Erie County Sheriff’s Office Holding Center Division Medical Department
(Medical Manual),” or certify to the Court that this document is unavailable, in which
case it shall document its efforts to obtain such information.

Interrogatories
John/Jane Doe Medical Director
Plaintiff served interrogatories upon unidentified Medical Department
Staff. Dkt. #132-9, p.2.

Upon identification of the Medical Department Staff as directed in
Document Demand #22 above, plaintiff may amend his complaint to name the
appropriate defendant(s), at which time plaintiff may serve interrogatories upon such
defendant(s).

County of Erie
Plaintiff served a second set of interrogatories upon defendant Erie
County following appointment of counsel. Dkt. #133-1, p.51. Although Erie County
responded to plaintiff’s initial interrogatories, which were served by plaintiff pro se,
plaintiff seeks leave to serve interrogatories prepared by counsel. Dkt. #132, ¶ 62.
-19-

Plaintiff notes that the Assistant County Attorney representing defendants at the time
agreed to respond to the second set of interrogatories on behalf of the original
defendants, but a newly assigned Assistant County Attorney objected. Dkt. #132, ¶¶ 63
& 64.

Counsel objected to the second set of interrogatories in light of their
response to plaintiff’s pro se interrogatories and suggests that plaintiff’s counsel be
directed to pose her questions to defendants during the course of depositions. Dkt.
#137, ¶ 13.

The County of Erie shall respond to plaintiff’s second set of
interrogatories. See Dkt. #133-1. However, the time period set forth in the interrogatory
requests shall be limited to 2006, 2007 and 2008. Moreover, to the extent that these
interrogatories require disclosure of protected health information of individuals other
than plaintiff, the responses may identify inmates by initials or assigned numbers.

Inspection
Plaintiff seeks to observe and photograph all facilities available for deaf
inmates, including hearing assisted telephone devices, closed captioned televisions,
etc. Plaintiff’s counsel also seeks to observe where plaintiff was housed within the
ECHC, the medical facility, and the location of any flashing lights used in place of alarm
bells to notify deaf inmates of movement, meals or other programming. Dkt. #132,
¶ 30.
-20-

Defendants object that an inspection of the ECHC “will cause disruption
and potentially compromise security at the facility,” but offered to “find an appropriate
alternative to the inspection, such as production of photographs.” Dkt. #137, ¶ 14.

The Court directs defendants to permit inspection and photographs of the
ECHC as requested by plaintiff, to the extent that such inspection can be accomplished
without compromising the security of the facility. To the extent that legitimate security
concerns preclude such inspection, defendants shall provide plaintiff with video as well
as photographs of the locations and devices sought to be inspected.

Stephen Swain
Plaintiff seeks an order directing disclosure of all agreements or
documents pertaining to Mr. Swain’s employment status while he worked at the ECHC,
as well as an order directing the County Attorney to accept service of the summons and
complaint and defend and indemnify Mr. Swain. Dkt. #132, ¶ 82.

As Mr. Swain has filed an Answer to this action (Dkt. #140), this aspect of
plaintiff’s motion to compel is moot. However, to the extent it has not done so already,
defendants shall produce any and all agreements or documents relating to Erie
County’s employment relationship with Mr. Swain and/or contractual relationship with
Physician’s Assistants of Western New York from 2006 through the present.

-21-

Sanctions
Plaintiff argues that “the Erie County Attorney’s Office, by not being
forthcoming in its response to Plaintiff’s request for production of documents or
interrogatories, by objecting where such objections are not grounded in the rules of civil
procedure or in case law, and by not raising the Stephen Swain employment issue in its
response to Plaintiff’s motion to file and serve a second amended complaint . . . has
caused unnecessary delay and needlessly increased the cost of litigation.” Dkt. #132,
¶ 84. As a result, plaintiff seeks sanctions in accordance with Rule 37(a)(5)(A) of the
Federal Rules of Civil Procedure to compensate for the “inordinate amount of time in
obtaining discovery from the County.” Dkt. #132, ¶ 85. Plaintiff’s counsel declares that
she has expended in excess of 20 hours on this motion and co-counsel has expended
at least 15 hours on this motion. Dkt. #132, ¶ 86.

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides, in
relevant part, as follows:
If the motion [to compel disclosure or discovery] is granted –
or if the disclosure or requested discovery is provided after
the motion was filed – the court must, after giving an
opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney
advising that conduct, or both of them to pay the movant’s
reasonable expenses incurred in making the motion,
including attorney’s fees. But, the court must not order this
payment if:
(I)

the movant filed the motion before attempting
in good faith to obtain the disclosure or
discovery without court action;

(ii)

the opposing party’s nondisclosure, response,
or objection was substantially justified; or
-22-

(iii)

other circumstances make an award of
expenses unjust.

Having found that several of defendants’ objections to discovery demands
were unjustifiable, and wishing to discourage technical objections in favor of
cooperative discovery of relevant information, particularly in cases such as this where
counsel has been appointed to represent a plaintiff pro bono, the Court agrees that an
award of attorney’s fees is appropriate. Balancing counsel’s representation as to the
amount of time expended on this discovery motion with the recognition that some of the
defendant’s objections raised legitimate issues for resolution by the Court, the County
of Erie is directed to compensate plaintiff’s counsel for 50% of the hours expended on
this motion. If the parties cannot agree on the reasonableness of counsel’s hourly rate,
plaintiff’s attorney shall submit an affidavit in support of her award of attorney’s fees no
later than April 29, 2016.

SO ORDERED.

DATED:

Buffalo, New York
March 21, 2016

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

-23-