Brown v. Pritchard et al

Filing 128

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re MOTION for Protective Order and/or modification of Order filed at Docket No. 96 with cert of service filed by Hodge, Schuessler, B. Fischer, Marinaccio, Swa ck, Pritchard, J. Conway, 122 MOTION for Discovery filed by Antonio Brown, 106 Defendants' motion for protective Order (Docket No. 106) is granted as discussed in this Order; defendants to respond to interrogatories posed in this Order by 7/21/2011.Regarding plaintiff's motion to compel (Docket No. 122, Responses due by 7/14/2011, Replies due by 7/25/2011, motion deemed submitted (without oral argument) by 7/25/2011.So Ordered. Signed by Hon. Hugh B. Scott on 6/24/2011. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTONIO BROWN,
Plaintiff,
Hon. Hugh B. Scott
09CV214S
v.
Order

OFFICER PRITCHARD, et al.,
Defendants.

Now before this Court is defendants’ motion (Docket No. 1061) for a Protective Order or
modification of this Court’s earlier Order (Docket No. 96) relative to defendants’ then-pending
summary judgment motion (Docket No. 81; see also Docket No. 97, Report & Recommendation
recommending denial of defense summary judgment motion without prejudice to allow plaintiff
discovery in order to allow him to respond to motion) and plaintiff’s cross motion for extension
of time to complete his discovery (Docket No. 89). Also filed (at the instruction of Chambers) is
plaintiff’s latest motion for discovery regarding grievances of other defendant officers (Docket
No. 122).
Previously, defendants moved for summary judgment on behalf of defendants Attica
Correctional Facility (“Attica”) Superintendent James Conway and Commissioner Brian Fischer

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In support of this motion, defendants submitted their attorney’s affidavit, with the
attached affidavit of Vernon Fonda, the chief of investigations/inspector general of the New York
State Department of Correctional Services, Docket No. 106; their attorney’s reply declaration,
Docket No. 118.
In opposition, plaintiff submits his Response to Defendants’ Protective Order Motion,
including his affidavit, Docket No. 112.

(Docket No. 81). This Court recommended denial of that motion (without prejudice) pending
plaintiff’s discovery to enable him to respond to that motion (Docket No. 96, Order; Docket
No. 97, Report & Recommendation). That Report & Recommendation was adopted by Chief
Judge Skretny (Docket No. 104). This Court ordered disclosure of complaints and grievances
against defendant Pritchard (among other corrections officers) to show defendants Conway and
Fischer’s supervisory liability for their constructive notice of these complaints. Plaintiff objected
to the limitation of the ordered discovery (Docket No. 99), but this objection was denied by Chief
Judge Skretny (Docket No. 105). This Court gave the parties until March 24, 2011, to complete
this limited discovery (Docket No. 103; see Docket Nos. 96, 98).
Defendants in the present motion seek a Protective Order for documents to be produced
by the New York State Department of Correctional Services (“DOCS”) Inspector General prior
to production to plaintiff to either have these Inspector General records reviewed in camera prior
to releasing them to plaintiff or produced with redactions (Docket No. 106). Responses to this
motion eventually were due (cf. Docket No. 107) on May 11, 2011, with any reply due by
May 25, 2011, and the motion being deemed submitted on May 25, 2011 (Docket Nos. 113, 115,
117).
Also pending, but on a different briefing period, is plaintiff’s motion for leave to amend
the Complaint to add five DOCS Inspector General’s office employees (including Vernon Fonda)

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as defendants (Docket No. 116)2. This motion is based, in part, upon information plaintiff
learned in the present motion for a Protective Order (see id.).
BACKGROUND
This is a pro se prisoner’s civil rights action, alleging that defendant corrections officer
Pritchard used excessive force in conducting a pat frisk on May 4, 2008, at Attica (Docket
No. 17, Am. Compl. ¶¶ 6-8; see Docket No. 1, Compl. ¶¶ 12-14). In another incident with this
officer, on June 3, 2008, Pritchard allegedly denied plaintiff access to the showers. Plaintiff
complained about this denial to defendant Sergeant Marinaccio, but the sergeant ignored the
complaint, instead telling Pritchard about it. (Id. ¶¶ 10-11.) Plaintiff then alleges that, when he
returned to his cell, Pritchard and defendants Officers Swack, Schuessler, and Sergeant Hodge
were waiting for plaintiff in his cell where he was pat frisked, smacked in the head and asked by
Pritchard whether plaintiff liked making complaints. Swack then grabbed plaintiff’s shirt and
asked if he was a “tough guy,” and after plaintiff answered, Swack allegedly grabbed plaintiff
from behind in a bear hug and threw plaintiff to the ground. The officers then allegedly
assaulted, kicked, and punched the prone plaintiff. He was taken to the Special Housing Unit
and claims that he was denied pain medication, but he later signed up for sick call for the next
few days for back, head, hip, and leg injuries. (Id. ¶¶ 12-16.) Plaintiff then claims that Pritchard
made plaintiff’s grievance from the May 4 incident “disappear” but it was found as filed (id.

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To clarify some confusion the plaintiff had with the Orders concerning this second
Amended Complaint, see Docket No. 120, 2d Am. Compl., attached letter of May 23, 2011, he
was ordered to file the second Amended Complaint (adding Khahifa) by June 8, 2011, and he
was to file his proposed third Amended Complaint (naming five additional defendants) by May
27, 2011, to complete his other motion for leave to further amend the Complaint, Docket
No. 117, Order at 4, 6; see also Docket No. 116, Pl. Motion for Leave to Amend.
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¶¶ 17, 18). Plaintiff alleged “abusive” use of force and retaliation under the First, Eighth, and
Fourteenth Amendments, and initially sought $1.5 million in damages (Docket No. 1, Compl.
¶¶ 27, 29). Defendants answered that pleading (Docket No. 14).
Plaintiff later sought (Docket No. 17) and was granted (Docket No. 20) leave to amend
the Complaint to allege supervisory liability claims against Conway and Fischer (Docket No. 17;
see also Docket No. 28, Answer to Amended Compl.). The Amended Complaint alleges that
Pritchard was notorious for abusing prisoners and defendants Conway and Fischer were aware of
Pritchard’s activities and reputation but had him continue to work at Attica (Docket No. 17, Am.
Compl. ¶¶ 20-21).
Plaintiff next sought discovery from defendants on other grievances and complaints
alleged against Pritchard (see Docket Nos. 38, 34), which this Court initially denied (Docket
No. 67; see Docket No. 72 (plaintiff’s objections to this Order); Docket No. 74 (denial Order)).
After Conway and Fischer moved for summary judgment (see Docket No. 81), plaintiff
responded that he could not address the motion absent some discovery (Docket No. 89), and this
Court allowed plaintiff in a limited fashion to conduct discovery to enable him to respond to the
defense motion for summary judgment (Docket No. 96). That summary judgment motion was
denied, without prejudice, pending this discovery (Docket Nos. 97, 104).
Defense Motion for Protective Order
Defendants have identified 26 inmate complaints (other than plaintiff) to the DOCS
Inspector General that fall under plaintiff’s discovery requests (as confined by this Court’s Order)
(Docket No. 106, Defs. Atty. Decl. ¶ 5; id., Decl. of Vernon Fonda ¶ 3). They raise safety and
security concerns about releasing to an inmate plaintiff copies of these complaints and grievances
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(id., Defs. Atty. Decl. ¶ 5; id., Fonda Decl. ¶¶ 6-10). Defendants request either in camera review
of these 26 complaints, with complaining inmates’ names redacted, to determine whether to
produce them to plaintiff; or produce complaints redacted to remove complainants’ names and
other sensitive information; and to have complaints not produced in plaintiff’s cell but in another
location (id., Defs. Atty. Decl. ¶ 5). The Inspector General investigates allegations of violations
of DOCS’s rules and regulations, employee rules, and violations of New York Penal Law by
inmates and employees, referring substantiated incidents for review and possible disciplinary
action and/or criminal prosecution (id., Fonda Decl. ¶ 4). Substantiated employee misconduct is
referred to the DOCS’s Bureau of Labor Relations3 for consideration of administrative
disciplinary action and potential violations of criminal law are referred to the District Attorney
and to Labor Relations for action (id.). The Inspector General preserves the confidentiality of its
processes by methods to avoid anyone identifying an informant (id. ¶¶ 7, 9). Even in redacted
form, defendants contend would impair the effectiveness of the Inspector General in obtaining
confidential complaints (id. ¶¶ 6, 8). Chief of investigations/inspector general Vernon Fonda
states that the 26 complaints he has reviewed here have not been substantiated (id. ¶ 3), hence no
further action was taken as to them, and he did not believe that Commissioner Fischer “had any
role, knowledge or involvement in the handling of these complaints by the IG’s office” (id.).
Plaintiff responds that numerous complaints have been filed against officer Pritchard but
each has been found that he did nothing wrong. Plaintiff concludes that defendants “are
deliberately indifferent to inmates’ complaints that are filed against officer Pritchard.” (Docket

3

Plaintiff proposes to name as new defendants John Doe official from the Bureau of
Labor Relations, see Docket No. 116.
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No. 112, Pl. Response at 2.) Defendants had produced 12 grievances but have not produced the
26 grievances identified by the Inspector General’s office (id.). Plaintiff argues that defendants
could produce these 26 other grievances with names redacted, as they had produced the 12
grievances (id. at 3). Plaintiff believes that these records would show whether complaints were
sent to the Commissioner’s office, what actions were deemed appropriate, and what ever
disciplinary action was taken against Pritchard. Plaintiff, in a separate affidavit, states that he
never tried to intimidate anyone who has cooperated with the Inspector General in the 28 years of
plaintiff’s incarceration (id., Pl. Aff.).
In reply, defendants contend that plaintiff does not grasp the danger of releasing
confidential inspector general complaints, reiterating the reasons for confidentiality (to encourage
disclosure of misconduct) (Docket No. 118, Defs. Atty. Reply Decl. ¶¶ 5-6).
Plaintiff’s Latest Discovery Motion
In a letter dated June 1, 2011, plaintiff now moves for defendants to submit grievances
against Pritchard from January 2006 to May 2008, rather than grievances from May 2007 to
May 2008 submitted by defendants (Docket No. 122, Pl. letter motion at 2). Plaintiff wants an
Order to prevent defendants from destroying grievances, since the department’s record retention
policy documents older than five years old are destroyed (id. at 2, 3). He also seeks grievances
against defendants Swack, Schuessler, Marinaccio, and Hodge, and seeks an Order to have
defendants preserve these grievances from destruction (id. at 3), but does not state the predicate
basis (unlike Pritchard) that these officers were notorious and that supervisory defendants Fischer
and Conway were on notice of their antics.
This Order will address the briefing for plaintiff’s latest motion.
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DISCUSSION
I.

Defense Protective Order
As plaintiff notes (Docket No. 112, Pl. Response at 3), the party seeking a Protective

Order bears the burden of establishing good cause for the Order, see Fed. R. Civ. P. 26(c). Under
that rule, this Court “may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense . . .” including forbidding
disclosure or discovery; specifying the terms for discovery or disclosure; forbidding inquiry into
certain matters or limiting the scope of disclosure or discovery, id. R. 26(c)(1)(A), (B), (D). If a
motion for a Protective Order is partially denied, the Court may, “on just terms” order any party
to provide or permit discovery, id. R. 26(c)(2).
Plaintiff admits that inmates do not trust the Inspector General or any other person in
DOCS (Docket No. 112, Pl. Response at 3; cf. Docket No. 118, Defs. Atty. Reply Decl. ¶ 7).
Disclosure sought by plaintiff, even with complainants’ names redacted, would erode that trust
even more.
The scope for discovery generally is to obtain “any nonprivileged matter that is relevant
to any party’s claim or defense,” Fed. R. Civ. P. 26(b)(1), that is “discovery reasonably calculated
to lead to discovery of admissible evidence,” id. The reason for this limited discovery here was
to allow plaintiff to respond to the defense motion for summary judgment under Rule 56(d) and
to address defendants’ contention that the movants had no personal involvement with plaintiff
and his claimed deprivations. This excursion into the Inspector General’s complaint record for
officer Pritchard was to show the constructive notice that movants Fischer and Conway had of
Pritchard’s unlawful activities. The question thus is whether review of these 26 Inspector
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General’s files, even in camera with the complainants’ names redacted, is necessary. The point
for the case presently positioned is whether Fischer and Conway had constructive notice of
complaints against Pritchard. According to Fonda from the Inspector General’s office, only
substantiated complaints are referred for administrative or criminal proceedings and the 26
complaints identified here were not substantiated and he did not believe Commissioner Fischer
had any role in them (Docket No. 106, Fonda Decl. ¶¶ 3, 4).
Under Rule 26(c)(1)(C), this Court also may “prescribe a discovery method other than the
one selected by the party seeking discovery”. Here, production of the Inspector General’s files of
these complaints, even redacted, endangers breaches of confidentiality. Plaintiff, although he
may not wish to disclose or use the information from these files, has little control of his
surroundings and others, not parties to this action, may have (inadvertent) access to these records
if left in plaintiff’s cell or with his personal effects. The confidentiality of those who file
grievances or complaints should be respected. The answers to plaintiff’s discovery inquires (see
Docket No. 112, Pl. Response at 4) are better addressed as interrogatories. Defendants are asked
1.

whether the 26 complaints identified by the Inspector General against officer Pritchard
were sent to the office of Commissioner Fischer;

2.

when each of these complaints was filed;

3.

what disciplinary action was taken against Pritchard on that complaint;

4.

who was informed of the discipline taken against Pritchard;

5.

whether that discipline was applied to Pritchard; and

6.

whether there were any admissions made by defendants in the investigations of these
complaints.
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Plaintiff does not need to know the name of the complainants; he appears to be satisfied
with receiving redacted grievances without the complainants’ names. Pertinent to this case is
how the defendants responded to grievances, not the fact that grievances were filed.
II.

Plaintiff’s June 1 Motion, Docket No. 122
This motion raises two issues. First, whether defendants have produced grievances

within the scope previously ordered; second, whether the scope of this disclosure should expand
to include grievances alleged against other corrections officer defendants aside from Pritchard.
This Court ordered defendants to produce grievances “leveled against Pritchard only and only
those up to May 4, 2008, the date of the first incident” (Docket No. 96, Order at 9, citation
omitted), but without setting out the start date for that disclosure.
For a complete record on this issue, defendants shall respond to this motion by July 14,
2011; plaintiff then may reply by July 25, 2011, and this motion will be deemed submitted as of
July 25, 2011.
CONCLUSION
For the reasons stated above, defendants’ motion for a Protective Order (Docket No. 106)
is granted as discussed above. To wit, defendants shall not produce the 26 grievances identified
by the Department of Correctional Services’ office of Inspector General, but shall answer the
interrogatory questions posed in this Order (at 7-8). Defendants shall answer these
Interrogatories by July 21, 2011.

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As for plaintiff’s motion to compel (Docket No. 122), defendants shall respond to this
motion by July 14, 2011; plaintiff then may reply by July 25 2011, and this motion will be
deemed submitted as of July 25, 2011.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Buffalo, New York
June 24, 2011

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