Lewis v. Turco et al

Filing 137

DECISION AND ORDER granting in part and denying in part 116 Motion to Produce; denying 128 Motion. Signed by Hon. H. Kenneth Schroeder, Jr. on July 8, 2011. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL LEWIS, 05-A-4502,
Plaintiff,

08-CV-0913(Sr)

v.
ANTHONY D. TURCO, et al.,
Defendants.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #25.

Plaintiff, who is proceeding pro se, commenced this action on or about
December 15, 2008. Dkt. #1. Thereafter, plaintiff filed an Amended Complaint as of
right (Dkt. #4) on December 24, 2008 and a “Supplemental Complaint” (Dkt. #13) was
later filed on February 26, 2009. The Supplemental Complaint was filed after United
States District Judge Michael A. Telesca concluded that “the new complaint [09-CV-94]
should have been filed as a supplemental complaint in this case [08-CV-913].
Accordingly, the Clerk of Court is directed to file the documents filed in 09-CV-94Sr as a
supplemental complaint in this case, and close 09-CV-94 as filed in error.” Dkt. #12,
p.2. Finally, a Second Amended Complaint was filed on February 17, 2010. Dkt. #43.
The Second Amended Complaint alleges that while incarcerated at the Southport

Correctional Facility, plaintiff was subjected to excessive force and denied adequate
medical care. Dkt. #43. Presently pending before this Court are two motions to compel
the production of documents. Dkt. ##116 and 128.

During the pendency of this case, plaintiff has sought the disclosure of
documents and information from the defendants through the use of document
demands, interrogatories and requests for admissions. Presently pending before this
Court are two motions seeking an Order compelling defendants to disclose certain
documents. Dkt. ##116 and 128. In his first motion (Dkt. #116), plaintiff requests the
following:
A.

B.

C.

a copy of all complaint’s [sic] against all
defendants in this action filed by prisoners of
[sic] at Southport C.F. as well as plaintiff’s
complaint’s [sic], grievances;
copy of all photo’s [sic] of plaintiff in
defendant’s [sic] possession to include outside
medical trips photo [sic]. All photo’s [sic] of
plaintiff I.D. cards of identification purpose
photo’s [sic] of said areas of hospital cell (4)
where incident took place on 3-21-08. All log
book entry’s [sic] of the plaintiff of 3-20-08 to 321-08; and
copy of all federal court, civil suit’s [sic] claims where the
defendant [sic] were parties to suit.

Dkt. #116, pp.1-2. In their response to plaintiff’s discovery requests, defendants
disclosed copies of each of plaintiff’s twenty-one grievances filed during the period
beginning January 29, 2007 through February 26, 2010 while he was housed at the
Southport Correctional Facility. Dkt. #86, pp.37-140. With respect to that portion of
plaintiff’s request seeking the disclosure of all complaints against all defendants by
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prisoners at Southport, the defendants objected to this request on the basis that the
request was overly broad and unduly burdensome and further that the information
sought was neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence. Dkt. #86. Moreover, it is this Court’s understanding that by
reason of how inmate grievances and complaints are filed, a search of each grievance
filed by an inmate at any facility in an effort to locate any grievances or complaints that
may relate to the named defendants herein would be overly burdensome and not likely
to lead to the discovery of admissible evidence. Accordingly, for the foregoing reasons,
that portion of the plaintiff’s motion seeking an Order compelling the disclosure of any
and all complaints or grievances filed against any of the named defendants is denied.

With respect to plaintiff’s request for all photographs of plaintiff in
defendants’ possession, that request is granted. The photographs of the plaintiff taken
after the alleged incident on March 21, 2008 have been disclosed to plaintiff on several
occasions. Dkt. #46, pp.3-5 and Dkt. 86, pp.33-36. To the extent that defendants
maintain additional photographs of plaintiff, defendants are hereby directed to disclose
those photographs to plaintiff. With respect to plaintiff’s request for log book entries for
the period March 20, 2008 through March 21, 2008, the Court notes that defendants
disclosed log book entries as part of its Rule 26 discovery. Dkt. #46, p.16. Accordingly,
based on the fact that defendants have previously provided the log book entries to
plaintiff, plaintiff’s request is denied as moot.

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Finally, the plaintiff seeks copies of all federal cases where the
defendants herein were named as a defendant. As a threshold matter, although the
Court granted plaintiff permission to proceed in forma pauperis pursuant to Title 28,
United States Code, Section 1915(a) (Dkt. #12), such status as a poor person, does not
entitle plaintiff to free copies of documents located within the Court’s files. To the
extent plaintiff wants copies of certain documents, plaintiff will be responsible for the
cost of printing or copying the requested documents. Accordingly, based on the
foregoing, plaintiff’s request is denied.

In addition to the foregoing motion seeking an Order compelling the
production of documents, plaintiff filed a second motion seeking an Order directing
defendants to disclose additional documents. Dkt. #128. More specifically, plaintiff’s
second motion to compel seeks an Order directing defendants to disclose copies of the
following Directives of New York State Department of Correctional Services:
Dir. 4931 Unhygenic [sic] Act
Dir. 4944 Use of Physical Force
Dir. 4004 Unusual Incident
Dir. 4008 Watch Commander Log
Dir. 4300 Health Service Policy Manual which includes
attached directives 4066, 4320
Dir. 1943 Handheld Videotaping for Security Purpose [sic]
Dir. 4091 Log Books
Dir. 2112 Report of Criminal Employee Criminal Charge
Dir. 2111 Report of Employee Misconduct
Dit. 4900 Secure Post
Dir. 2110 Suspension, Disciplinary
Dir. 2123 Tag Out/Lock Out
Dir. 2810 Health Services Policy Manual
Dir. 4931 Aggravated Harassment Evidence Kit
special section
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Dir. 0700 Inspector General’s Office Investigates Complaints
etc on behalf of the Comm

Dkt. #128, p.2. As set forth in their responses to plaintiff’s discovery demands,
defendants have previously disclosed to plaintiff a copy of Directive 4944. Dkt. #86,
pp.141-149. However, this Court has been unable to find where in the multitude of
discovery requests filed by plaintiff, plaintiff previously requested the disclosure of
copies of each of the other Directives listed above. Notably absent from the instant
motion is any suggestion that the defendants have failed to make the requested
disclosures, most likely because this is the first time plaintiff has made such requests.
Therefore, with the exception of Directive 4944, a copy of which has previously been
disclosed to plaintiff, the Court directs that the remaining requests by plaintiff, set forth
for the first time in the instant motion, be treated as new discovery requests and the
Court further directs defendants to file a response to the above-listed requests no later
than August 5, 2011.

SO ORDERED.

DATED:

Buffalo, New York
July 8, 2011

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

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