Smith v. Erie County Holding Center et al
Filing
170
ORDER granting 164 Motion for Attorneys' Fees. Signed by Hon. H. Kenneth Schroeder Jr. on 11/17/2016. (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.
By Order entered March 21, 2016, the Court resolved plaintiff’s motion to
compel. Dkt. #160. Specifically, the Court directed defendants to supplement their
responses to certain discovery requests; respond to plaintiff’s second set of
interrogatories; 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; and 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. Dkt.
#160. To the extent that legitimate security concerns preclude such inspection, the
Court directed defendants to provide plaintiff with video as well as photographs of the
locations and devices sought to be inspected. Dkt. #160. The Court also awarded
plaintiff’s pro bono counsel attorney’s fees for a total of 17.5 hours at a reasonable
hourly rate to be determined by the parties. Dkt. #160.
On March 31, 2016, plaintiff’s counsel requested payment at her hourly
billable rate of $250.00, for a total of $4,375.00. Dkt. #164-1, p.2. Plaintiff’s counsel
also suggested April dates for inspection of the ECHC and May dates for depositions,
presuming receipt of discovery materials by the end of April. Dkt. #164-1, p.2.
By letter dated April 11, 2016, defense counsel requested an affidavit
setting forth the reasonableness of the total hours expended in connection with the
discovery motion. Dkt. #164-1, p.5.
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By letter dated April 12, 2106, plaintiff’s counsel requested that the
inspection proceed in May so that the parties could proceed with depositions. Dkt.
#164-1, p.4.
By letter dated April 19, 2016, plaintiff’s counsel objected to defense
counsel’s request for an affidavit, noting that the Court determined that plaintiff’s
counsel was entitled to compensation for half of the 35 hours plaintiff’s counsel
declared was expended on the motion to compel. Dkt. #164-1, pp.7-8. Plaintiff’s
counsel noted:
This is our third letter since the Court issued its Order nearly
a month ago trying to resolve these issues. Further, we
have not received the discovery response required by the
Court’s Order; we have not heard back from you regarding
dates for depositions as we proposed in our previous
correspondence. We have also not heard back from you
with regard to dates for a photographic inspection of the Erie
County Holding Center. As you know, our trial calendars are
such that we had hoped to accomplish the inspection and
proceed with at least two to three days of depositions in the
month of May. Please advise immediately whether we can
go forward. Otherwise, we may be in the unfortunate
position of having to move to compel compliance with the
Judge’s March 21, 2016 Order.
Dkt. #164-1, p.8.
By letter dated July 26, 2016, plaintiff’s counsel provided defense counsel
with an affidavit regarding the number of hours expended with respect to the motion to
compel discovery and requested payment of $4,375.00. Dkt. #164-1, p.10.
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Currently before the Court is plaintiff’s motion to compel compliance with
the Court’s Order. Dkt. #164. Plaintiff’s counsel seeks additional attorney’s fees to
compensate for the time expended in seeking such compliance. Dkt. #164.
In response to the motion to compel compliance with the Court’s Order,
defense counsel appears to excuse his failure to comply on the ground that the Court’s
“Order does not include a date for which discovery is to be complied with” and because
the discovery deadline was extended until November 11, 2016. Dkt. #167, ¶ 3.
Defense counsel further declares that he “reached out to counsel for the Plaintiff by
phone on September 8, 2016 in an attempt to agree on a date certain to respond to the
Court Order, issue payment of fees, and schedule an inspection.” Dkt. #167, ¶ 4.
Finally, defense counsel declares that defendants’ have responded to the outstanding
discovery and paid the award of attorneys’ fees, rendering plaintiff’s motion moot. Dkt.
#167, ¶ ¶ 4 & 5. Despite this declaration, defense counsel states that
allowing an inspection poses a sincere security concern.
However, the County Defendants consent to an inspection,
but require further clarification for the scope of the
inspection. The County Defendants would request the
Plaintiff specify the location within the Holding Center along
with how such inspection would be material and necessary
to the prosecution of the action in light of the supplemental
discovery responses.
Dkt. #167, ¶ 6.
The Court finds defense counsel’s failure to respond to plaintiff’s attempts
to obtain compliance with the Court’s Order disrespectful to both opposing counsel and
the Court. To suggest that compliance with this Court’s Order could be ignored pending
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expiration of the Case Management Order’s discovery deadline ignores the obvious fact
that discovery, particularly depositions, could not proceed until defendants’ complied
with this Court’s Order.
Defendants are directed to allow plaintiff’s counsel to inspect, photograph
and videotape those areas of the Erie County Holding Center that plaintiff’s counsel
deems material and necessary to the prosecution of this action or, to the extent that the
parties agree that inspection of certain areas pose legitimate security concerns,
defendants shall provide photographs and videos of such areas. Any dispute regarding
the legitimacy of plaintiff’s request for inspection shall be brought by motion of the
defendants no later than December 2, 2016. The inspection shall be completed no
later than January 20, 2017. Depositions shall be completed no later than March 31,
2017. Plaintiff’s expert disclosures shall be filed no later than April 14, 2017.
Defendants’ expert disclosures shall be filed no later than May 12, 2017. All discovery
shall be completed by July 21, 2017. Dispositive motions shall be filed no later than
August 25, 2017.
Contrary to defense counsel’s argument, an award of attorney’s fees is
appropriate to the circumstances presented. 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
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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
(iii)
other circumstances make an award of
expenses unjust.
Having failed to comply with the Court’s Order for nearly 6 months, despite the good
faith efforts of plaintiff’s counsel to obtain such compliance and move this case forward,
and having forced plaintiff’s counsel to file this motion, the Court finds an award of four
hours of attorney time at a reasonable hourly rate of $250.00, for a total award of
$1,000.00, to be appropriate. Defendants shall provide a check in this amount, made
payable to plaintiff’s attorneys, no later than December 16, 2016.
SO ORDERED.
DATED:
Buffalo, New York
November 17, 2016
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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