Vigliotti v. Selsky et al
DECISION AND ORDER granting in part and denying in part 103 Motion to Compel. A conference to set a deadline for dispositive motions is set for September 3, 2013 at 9:00 A.M. Signed by Hon. Jeremiah J. McCarthy on 7/3/13. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
DIRECTOR DONALD SELSKY, et al.,
The parties have consented to proceed before a Magistrate Judge pursuant to 28
U.S.C. §636(c) .1 Before me is plaintiff Jack Vigliotti’s motion to compel . For the
following reasons, plaintiff’s motion is granted in part and denied in part.
Plaintiff commenced this action pro se on November 25, 2008 pursuant to 42
U.S.C. §1983, alleging that on September 12, 2005, while he was incarcerated at the Wende
Correctional Facility (“Wende”), he was assaulted by defendant Correctional Officer Timothy
Benson. Complaint , First Cause of Action. Plaintiff further alleges that certain due process
violations occurred at his disciplinary hearing, which was conducted by defendant Captain
Martin Kearney, arising from the incident. Id., Second Cause of Action. On October 18, 2005
Captain Kearney found plaintiff guilty of some of the charges against him and sentenced him to
180 days of confinement in the Special Housing Unit (“SHU”) and 180 days loss of packages,
television, commissary, and telephone. Id. at ¶21, p. 11. On December 7, 2005, defendant
Bracketed references are to the CM/ECF docket entries.
Donald Selsky, the Director of Special Housing, denied plaintiff’s appeal and affirmed Captain
Kearney’s determination. Id. at ¶24, p.14.
Plaintiff argues that during the six months of SHU confinement he was transferred
from Wende to Upstate Correctional Facility (“Upstate”). While in transit to Upstate, he was
temporarily incarcerated at Auburn Correctional Facility (“Auburn”), where he attempted to
commit suicide. Plaintiff’s Memorandum of Law [130-5], pp. 4-5. When he returned to Auburn
from the hospital, he was placed in a mental health cell where he was given only “a flimsy smock
and a thin mat” Id. at p. 5. At Upstate he was again placed in a mental health cell until he was
transferred to a mental health observation cell at Clinton Correctional Facility (“Clinton”) with
similar conditions. Id.
While plaintiff was proceeding pro se, he moved to compel certain discovery [34,
45]. While these motions were pending, I appointed Patrick McCarthy, Esq. to represent plaintiff
. The parties then advised me that all aspects of plaintiff’s motion to compel, other than
those seeking defendant Correction Officer Timothy Benson’s medical records, were resolved by
the parties . I then granted plaintiff’s motion for Benson’s medical records in part and denied
it in part. July 19, 2011 Decision and Order .
On October 13, 2011, I issued a Second Amended Case Management Order 
requiring the completion of pretrial discovery by March 30, 2012. Id., ¶1. In January of 2012,
Patrick Curran, Esq. was substituted for Mr. McCarthy as plaintiff’s counsel . Shortly
thereafter, a Third Amended Case Management Order  was issued requiring the completion of
pretrial discovery by April 30, 2012. Id., ¶1. That deadline was then extended four additional
times (, , , ) resulting in the February 15, 2013 pretrial discovery deadline set
forth my Seventh Amended Case Management Order ().
One week before this deadline, plaintiff requested a conference to discuss his
outstanding discovery requests. A conference was held on February 15, 2013, and at that time, I
directed plaintiff to file a motion to compel by March 1, 2013, and indicated that “[i]t shall
include an explanation of why this issue was not raised until shortly before the discovery
deadline”. February 15, 2013 Minute Entry and Order . This motion ensued, which seeks to
compel production of certain discovery within 30 days, or in the alternative, to preclude
defendants from “presenting any evidence of their claim at that time of trial.” Notice of Motion
. Plaintiff also seeks costs. Curran Affidavit , Wherefore Clause.
“Courts have wide discretion to manage discovery.” Smith v. Haag, 2009 WL
3073976,*3 (W.D.N.Y. 2009) (Payson, M. J.). “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense”. Fed. R. Civ. P. (“Rule”)
26(b)(1). “[A]ctions alleging violations of §1983 require especially generous discovery.” Cox v.
McClellan, 174 F.R.D. 32, 34 (W.D.N.Y. 1997) (Feldman, M.J.).
With this standard in mind, I will address plaintiff’s motion, which identifies the
following fourteen items of discovery he is seeking:
Misbehavior Reports/Unusual Incident Reports concerning
our client’s attempted suicide and barricading himself in his
cell November 5, 2005;
Any tickets issued to Mr. Vigliotti and attachments or
reports or follow-up documentation associated with them or
with the alleged incident(s) that is the subject of any such
ticket for the years of his incarceration;
All documents identifying Corrections Officers who
escorted Mr. Vigliotti and other inmates from Nine
Company, B-Block at the Wende Correctional Facility, to
and from dinner on September 12, 2005;
Disciplinary hearing documents, including review of the
hearing and the appeal letter;
Documentation, reports and files maintained in the office of
defendant Donald Selsky concerning the review process for
the appeal filed by plaintiff regarding the incident on
September 12, 2005;
Exemplar of the mat and the gown or smock which plaintiff
had to wear when confined in special housing unit or in the
A copy of the Hearing Officer’s Manual, Policy or
Procedures regarding conduct of the disciplinary hearings
and the materials created by the Attorney General’s office
and any other documents that guided the review of appeals
by Mr. Selsky’s staff in 2005;
Department of Correctional Services directives or other
documents regarding pat frisk which were in effect on
September 12, 2005;
A copy of the Hearing Officer’s Manual and Policies and
Procedures regarding hearing officers who conduct
Timecards or other documentation showing the hours
worked by defendant Correction Officer Timothy Benson
on September 12, 2005 through September 30, 2005;
Documentation regarding grievances and complaints filed
by inmates against defendant Corrections Officer Timothy
Benson prior to September 12, 2005;
Documentation regarding number of incidents wherein
defendant Corrections Officer Timothy Benson and
Corrections Officer Glen Krathaus were involved in
altercations with inmates including Use of Force Reports,
prior to September 12, 2005;
Documents relating to the suspensions of Corrections
Officer Glen Krathaus while employed at the Greenhaven
Correctional Facility on or about 1995 including
Misbehavior Reports, Use of Force Reports, ‘To From’
memoranda and other documents relating to the
disciplinary action against Officer Krathaus including
suspension without pay.
A print out indicating the number of grievances filed by
inmates regarding the conditions of confinement at Auburn
Correctional Facility, D-Block, Eight Company, mental
health units during the two years preceding September 12,
2005 as well as grievance complaints filed by inmates with
respect to the conditions of confinement at Clinton
Correctional Facility, mental health unit and E-Bloc, One
Company, during the two years preceding September 12,
2005.” Curran Affidavit , ¶¶2(a)-(n).
In addition to these fourteen items of discovery, he also seeks to compel inspections of Auburn,
Clinton, and Upstate, including the right to obtain photographs and video images of those areas
where plaintiff was confined. Id., ¶3.
Many of defendants’ responses to these requests fall into three general categories:
1) the requested items were previously produced (items (a) and (d)); 2) the requested items were
previously requested informally, rather than by proper demands (items (e), (g) (Hearing Officer
Manual and materials created by the Attorney General’s Office),2 and (i) (Hearing Office
Manual)); and 3) this discovery is being requested for the first time in plaintiff’s motion (items
(c), (g) (policies and procedures for review of appeals), (h), (i) (policies and procedures for
disciplinary hearings), (j), (k), (l), (m), and (n)). Sleight Declaration , ¶¶8(a)-(n). I agree
with defendants, and deny these aspects of plaintiff’s motion.
Since defendants’ counsel represents that he has produced documents responsive
to items a and d and identified these documents by Bates number, I see no basis to compel these
items. See Sleight Declaration , ¶8(a), (d). While it appears that plaintiff may have
requested many documents informally, such requests are not enforceable absent a formal
demand. “The Federal Rules of Civil Procedure provide necessary boundaries and requirements
for formal discovery. Parties must comply with such requirements in order to resort to the
provisions of Fed.R.Civ.P. 37, governing motions to compel. Informal requests for production lie
outside the boundaries of the discovery rules.” Continental Casualty Co. v. Multiservice Corp.,
2008 WL 73345, *8 (D.Kan. 2008). See Patel ex rel. R.P. v. Menard, Inc., 2011 WL 5024991, *3
n.2 (S.D.Ind. 2011) (“informal discovery requests are just that— informal” (emphasis in
original)); Harding v. Town of Greenwich, 2010 WL 4681250, *2 (D.Conn. 2010) (“The
defendant’s motion to compel responses to these informal requests is denied”). Even plaintiff’s
counsel appears to have recognized his obligation to do so by acknowledging at the deposition of
defendant Selsky that he would be making formal written demands for the discovery he was
requesting, which does not appear to have occurred. See Curran Affidavit , Ex. A, p. 21 (“I
Defendants’ counsel states that notwithstanding his objections, he will produce the
Hearing Officer Manual to plaintiff. Sleight Declaration , ¶8(g).
will make a formal written demand . . . for that document”). There is also nothing in the record
before me that establishes that plaintiff had previously requested items (c), (h), (i) (policies and
procedures), (j), (k), (l), (m), and (n). While plaintiff alleges that his “demands have been raised
by [him] while proceeding pro se, as well as by his prior attorney . . . in a discovery demand
dated December 20, 2011” (Curran Affidavit , ¶7), these demands are not attached or cited
in plaintiff’s motion.
In response to plaintiff’s request for “tickets” (item b), defendants respond that
this term is slang for a misbehavior report. They oppose this request, which they allege was
raised for the first time in correspondence on December 10, 2012, as being overly broad and
irrelevant. I agree with defendants. “The burden of demonstrating relevance is on the party
seeking discovery.” Lent v. Signature Truck Systems, Inc., 2010 WL 1707998, *2
(W.D.N.Y.2010) (Scott, M.J.). Plaintiff makes no attempt to explain why misbehavior reports
(other than for the those related to the incident) are relevant. Additionally, this request appears to
have been made informally. Therefore, this aspect of plaintiff’s motion is denied.
Inspection and Production of Exemplars
In a “Request for Entry onto Premises and Request for Samples Pursuant to Rule
34” dated May 11, 2012, plaintiff sought inspection of Wende, Auburn and Clinton Correctional
Facilities, and for production of a “sample” of the “mat” and “smock” provided to inmates at
Auburn’s Mental Health Unit. Curran Affidavit , Ex. C.3 While defendants permitted an
In addition to the inspections set forth in his May 11, 2012 request, plaintiff’s motion
seeks to compel an inspection of Upstate. Plaintiff’s Memorandum of Law [103-5], p. 6.
inspection of Wende, they objected on May 17, 2012 to plaintiff’s request to inspect the other
facilities and for production of the smock and mat since “[t]he complaint does not assert a cause
of action . . . alleging that Plaintiff’s conditions of confinement in SHU or DOCCS suicide watch
procedures caused Eighth Amendment or other Constitutional violations.” Curran Affidavit
, Ex. D. Plaintiff responds that these inspections and production of the mat and smock are
relevant to “establish[ing] his damages . . . and that he sustained an Atypical and Significant
Hardship”. Plaintiff’s Memorandum of Law [130-5], p. 6. I agree with plaintiff.
The threshold issue on any procedural due process claim involving an inmate “is
always whether the plaintiff has a property or liberty interest protected by the Constitution”.
Narumanchi v. The Board of Trustees of the Connecticut State University, 850 F.2d 70, 72 (2d
Cir.1988). “[A] prisoner has a liberty interest only if the deprivation is atypical and significant
and the state has created the liberty interest by statute or regulation”. Tellier v. Fields, 280 F.3d
69, 80 (2d Cir. 2000). “[D]etermining whether a particular confinement ‘imposes [an] atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life’ . . . will
involve factual determinations”. Durran v. Selsky, 251 F.Supp.2d 1208, 1214 (W.D.N.Y.2003)
(Larimer, J.) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Although defendants now oppose plaintiff’s motion on the grounds that the
facilities are in the possession, custody and control of DOCCS, a non-party, this objection was
not raised in response to plaintiff’s request for inspection and ignores the fact that defendants
apparently had sufficient nexus to DOCCS to arrange for the inspection of Wende. See Curran
Affidavit , Ex. D.
My only reservation about granting this aspect of plaintiff’s motion is its timing.
See United States v. $50,800.00 in U.S. Currency, 2011 WL 5024260, *1 (D.Ariz. 2011)
(“Untimely-filed discovery motions are disfavored, especially when a plaintiff, as Plaintiff did
here, waited to the very last day to file a discovery motion, knowing for several months that
Claimant’s discovery responses would not be forthcoming”). Having been aware of defendants’
objections to his request for inspection since May 17, 2012, I question why plaintiff waited until
the eve of the discovery cutoff to raise this issue. Notwithstanding my direction that plaintiff’s
motion “shall include an explanation of why this issue was not raised until shortly before the
discovery deadline” (February 15, 2013 Minute Entry and Order ), his motion offers little, if
any, explanation as to why this occurred. Nevertheless, defendants make no claim of prejudice
arising from the timing of plaintiff’s motion. Therefore, I will permit the remaining inspections
and production specified in his May 11, 2012 request to occur, but require that this discovery be
completed within the next 30 days to limit the delay.
Although I have granted a portion of plaintiff’s motion, I find no basis to sanction
defendants by preclusion of evidence or an award of costs.
For these reasons, plaintiff’s motion to compel  is granted to the extent it
seeks to compel the remaining discovery and inspections identified in his May 11, 2012 Request
for Entry onto Premises and Request for Samples Pursuant to Rule 34 (Curran Affidavit ,
Ex. C), but is otherwise denied. This remaining discovery shall be completed by August 31,
Other than the discovery I have permitted herein, I consider discovery in this case
to be concluded. The parties may agree among themselves to conduct further discovery, but such
discovery will not be subject to court compulsion. A conference to set a deadline for dispositive
motions is set for September 3, 2013 at 9:00 A.M.
Dated: July 3, 2013
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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