Holmes v. Fischer et al

Filing 61

DECISION and ORDER. Plaintiff's motions to strike (Doc. No. 37), and for sanctions (Doc. No. 42), are DENIED; Plaintiff's motion to compel discovery (Doc. No. 38), is GRANTED. Defendants are ORDERED to produce within ten (10) days, the ide ntity of any informants who provided statements giving rise to the suspicion for any of the urinalysis tests to which Plaintiff was subjected, or an affidavit made by a DOCCS official with personal knowledge explaining that no such informants were involved; Plaintiff is entitled to an adverse inference instruction at trial regarding the spoliated Requests for Urinalysis Test forms.. Signed by Hon. Leslie G. Foschio on 3/28/2013. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BRANDON HOLMES,
Plaintiff,
v.
BRIAN FISCHER, Commissioner of the New York
State Department of Correctional Services, et al.,

DECISION
and
ORDER
09-CV-00829S(F)

Defendants.

APPEARANCES:

BRANDON HOLMES, Pro Se
89-B-1812
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562-5498
ERIC T. SCHNEIDERMAN
Attorney General, State of New York
Attorney for Defendants
DAVID J. SLEIGHT
Assistant New York Attorney General, of Counsel
New York State Attorney General’s Office
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202
JURISDICTION

This case was referred to the undersigned on July 19, 2010, by Honorable
William M. Skretny, for all pretrial proceedings. The matter is presently before the court
on Plaintiff’s motions to strike the answer (Doc. No. 37), filed March 8, 2012, to compel
discovery (Doc. No. 38), filed April 4, 2012, and for sanctions (Doc. No. 42), filed
August 6, 2012.

BACKGROUND and FACTS1
Plaintiff Brandon Holmes (“Plaintiff” or “Holmes”), currently incarcerated at Sing
Sing Correctional Facility (“Sing Sing”), and proceeding pro se, commenced this § 1983
action on September 22, 2009, alleging violations of his federal civil rights and pendent
New York common law claims based on events that occurred while Plaintiff was
incarcerated at the Elmira Correctional Facility (“Elmira”), and Southport Correctional
Facility (“Southport”). With regard to his claims challenging his repeated subjection to
urinalysis as in violation of the Fourth Amendment, Plaintiff specifically alleges that
despite having no history of drug use, Plaintiff was repeatedly subjected to urinalysis
which were not random but “based upon ‘suspicion’” Defendants attribute to “a ‘reliable
confidential informant’” who had advised DOCCS staff at the correctional facility that
Plaintiff was using drugs. Amended Complaint, Facts ¶¶ 1-3. Plaintiff further alleges
Defendants ordered him to submit to urinalysis on March 10, 2007, June 2007,2 July 14,
2007, July 27, 2007, February 2, 2008, August 27, 2008, and November 18, 2008. Id.
¶¶ 2, 15-16. In response to a request for production of documents (“Discovery
Requests”)3 served by Plaintiff, Defendants filed on July 5, 2011, responses to Plaintiff’s
Request for Production of Documents (Doc. No. 21) (“Response to Discovery”). On
November 21, 2011, Defendants filed supplemental responses to the Discovery
Requests (“Supplemental Response to Discovery”).
1

The Facts are taken from the pleadings and m otion papers filed in this action.

2

Plaintiff does not specify the precise date in June 2007 on which he underwent urinalysis.

3

Although required by Rule 5.2(f) of the Local Rules of Civil Procedure - W .D.N.Y., Plaintiff did
not file a copy of his Discovery Requests. Nor is it clear from the record when Defendants were served
with the Discovery Requests.
2

On January 30, 2012, Plaintiff, pursuant to the court’s December 13, 2011
Decision and Order (Doc. No. 31), granting Plaintiff permission to amend his complaint,
filed an amended complaint (Doc. No. 34) (“Amended Complaint”). Defendants to this
action are all current or former employees of New York State Department of Corrections
and Community Supervision (“DOCCS”). Plaintiff asserts eight claims for relief
challenging the conditions of his confinement, an alleged denial of medical treatment,
repeatedly being subjected to non-random urinalysis testing, and alleged retaliation for
exercising his civil rights. Defendants’ answer to the Amended Complaint was filed
February 9, 2012 (Doc. No. 36) (“Answer”).
On March 8, 2012, Plaintiff filed a motion to strike the Answer as untimely filed
and insufficient as a matter of law, (Doc. No. 37) (“Motion to Strike”), supported by the
attached Affidavit in Support of Motion to Strike Answer (“Affidavit Supporting Motion to
Strike”). On April 4, 2012, Plaintiff filed a motion to compel discovery and for sanctions
(Doc. No. 38) (“Motion to Compel”), supported by the attached Affidavit in Support of
Motion to Compel Discovery and for Sanctions (“Affidavit Supporting Motion to
Compel), with exhibits, and the separately filed Brief in Support of Motion to Compel
Discovery and for Discovery Sanctions (Doc. No. 39) (“Plaintiff’s Memorandum”). On
August 6, 2012, Plaintiff filed a motion for sanctions pursuant to Fed.R.Civ.P. 11 (“Rule
11"), and the All Writs Act, and for a subpoena duces tecum (Doc. No. 42) (“Motion for
Sanctions”), supported by the attached Affidavit in Support of Motion for Sanctions
(“Affidavit Supporting Motion for Sanctions”), with exhibits. On August 30, 2012,
Plaintiff filed an addendum to his Motions to Strike, to Compel, and for Sanctions
(“Plaintiff’s Motions”) (Doc. No. 48) (“Plaintiff’s Addendum”). In opposition to Plaintiff’s
3

Motions, Defendants filed on September 14, 2012, the Declaration of Assistant Attorney
General David J. Sleight (“Sleight”) (Doc. No. 49) (“Sleight Declaration”). Oral argument
was deemed unnecessary.
Based on the following, Plaintiff’s Motions to Strike and for Sanctions are
DENIED; Plaintiff’s Motion to Compel is GRANTED.

DISCUSSION
1.

Motion to Strike
Plaintiff seeks to strike Defendants’ Answer to the Amended Complaint as

untimely filed, Affidavit Supporting Motion to Strike ¶¶ 4-8, and because Defendants’
affirmative defenses are insufficient as a matter of law. Id. ¶¶ 9-25. Defendants argue
in opposition that Plaintiff, insofar as he seeks to strike the Answer as untimely, has
confused the time in which Defendants were to file an answer to the original Complaint
with the time Defendants had to file an answer to the Amended Complaint. Sleight
Declaration ¶¶ 13-14. Defendants further maintain Plaintiff has failed to sustain his
burden of establishing any of Defendants’ affirmative defenses are insufficient as a
matter of law. Id. ¶ 15.
With regard to Plaintiff’s request to strike the Answer as untimely filed, Plaintiff
asserts that although a motion to dismiss filed by Defendants in opposition to the
original complaint was denied on February 1, 2011 (Doc. No. 16), Defendants did not
file, within 14 days of such denial, an answer to the original Complaint. Affidavit
Supporting Motion to Strike ¶¶ 4-8. The filing of Defendants’ Answer to the Amended
Complaint on February 9, 2012, however, was within the 21 days provided pursuant to
4

Fed.R.Civ.P. 12(a)(1)(A) to serve an answer after being served with the summons and
complaint. Plaintiff, in support of his Motion to Strike, relies on the time Defendants had
to file a responsive pleading to the original complaint after Defendants’ motion to
dismiss had been denied on February 1, 2011, which was 14 days under Fed.R.Civ.P.
12(a)(4)(A) (requiring service of a responsive pleading within 14 days of the court’s
denial of a motion to dismiss). Plaintiff, however, ignores the fact that with the filing of
his Amended Complaint on January 30, 2012, Defendants had a new 21-day period
within which to file a responsive pleading, i.e., Defendants’ answer. If, as Defendants
suggest, Plaintiff believes that by failing to file any answer to the original complaint,
Defendants have waived the right to file any responsive pleading in this action,
including an answer to an amended pleading, Plaintiff references no case or statute in
support of such novel theory, and the court’s research reveals none.
Nor is there any merit to Plaintiff’s assertion that the affirmative defenses must
be dismissed as legally insufficient. Although not specified by Plaintiff, his motion to
strike the affirmative defenses as insufficient as a matter of law is made pursuant to
Fed.R.Civ.P. 12(f) (“Rule 12(f)”) which provides that, either sua sponte or upon motion,
“[t]he court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Because affirmative defenses are
subject to the general rules of pleading, a defense to a claim is required to be stated
only “in short and plain terms.” Fed.R.Civ.P. 8(b)(1)(A). “An affirmative defense is
legally ‘insufficient’ if, as a matter of law, it cannot succeed under any circumstances.”
D.S. Am. (East), Inc. v. Chromagrafx Imaging Sys., 873 F.Supp. 786, 797 (E.D.N.Y.
1995). A motion to strike an affirmative defense must be decided on the basis of the
5

pleadings alone. National Union Fire Ins. Co. v. Alexander, 728 F.Supp. 192, 203
(S.D.N.Y. 1989). “An affirmative defense is insufficient and may be dismissed if ‘as a
matter of law, the defense cannot succeed under any circumstances.’” Petitt v.
Celebrity Cruises, Inc., 1999 WL 436423, at * 1 (S.D.N.Y. June 24, 1999) (quoting
Alexander, 728 F.Supp. at 203). Further, “[m]otions to strike are not generally favored
and require a showing that the ‘insufficiency of the defense is clearly apparent.’” Id.
(quoting Ali v. New York City Transit Authority, 176 F.R.D. 68, 70 (E.D.N.Y. 1997)).
Some of the arguments Plaintiff makes in support of dismissing the affirmative
defenses under Rule 12(f) are based on matters outside the pleadings. For example,
Plaintiff maintains Defendants cannot qualify for immunity because the right of
prisoners to be free from unreasonable searches is well-established. Affidavit
Supporting Motion to Strike ¶ 14. Whether the urinalysis testing to which Plaintiff was
subjected qualifies as an unreasonable search, however, is an essential question at
issue in this case. As such, such defense cannot be stricken as insufficient as a matter
of law.
Other arguments Plaintiff advances pertain only to the original complaint, such
as Plaintiff’s assertion that because this court has already denied Defendants’ motion to
dismiss on February 1, 2011, Defendants’ affirmative defense that the Amended
Complaint fails to state a claim is legally insufficient. Affidavit Supporting Motion to
Strike ¶ 13. Simply, that a motion made by Defendants to dismiss the original
complaint for failing to state a claim was denied does not necessarily mean that
Defendants’ affirmative defense that the Amended Complaint fails to state a claim is
also without merit. Accordingly, orders made with regard to the original complaint are
6

not relevant to the legal sufficiency of the affirmative answers asserted with regard to
the Amended Complaint.
Plaintiff’s Motion to Strike is therefore DENIED.

2.

Motion to Compel
Plaintiff moves to compel discovery based on Defendants’ alleged failure to

produce various documents responsive to Plaintiff’s discovery demands seeking
documents related to all the non-random urinalysis testing to which Plaintiff was
subjected between July 2006 and July 2008, as well as confidential information
regarding the other inmates Plaintiff asserts gave false information spurring
Defendants’ decision to subject Plaintiff to urinalysis, and information Plaintiff asserts is
in the possession of New York’s Inspector General’s Office regarding death threats
allegedly made against Plaintiff. Defendants oppose the motion on the basis that they
have already produced 431 pages of documents responsive to Plaintiff’s discovery
demands, but that Defendants had on file only one urinalysis request form from the
specified time period, the rest having been destroyed in the ordinary course of
business. Sleight Declaration ¶ 17, and that even if any confidential informants
provided statements giving rise to the suspicion for any urinalysis test, the identity of
such informants is privileged information which need not be disclosed, id. ¶ 21, and any
evidence pertaining to death threats against Plaintiff would be in the custody or control
of New York’s Inspector General’s Office over which Defendants have no control, id. ¶
22. See Fed.R.Civ.P. 34(a)(1) (documents subject to production must be within party’s
“possession, custody, or control”).
7

Defendants’s Responses to Discovery Requests establish that while incarcerated
at Elmira Correctional Facility, Plaintiff underwent urinalysis based on suspicion on
March 10, 2007, July 14, 2007, July 27, 2007, February 2, 2008, and November 28,
2008. Responses to Discovery Requests at 14, Bates No. 000001. Defendants’
records also show Plaintiff was randomly selected for urinalysis performed on July 29,
2008, and August 28, 2008. Id. Additionally, on August 30, 2008, Plaintiff submitted to
urinalysis, the reason for which is designated as “other.” Id. Plaintiff’s specific
Discovery Requests at issue include documents pertaining to the urinalysis tests to
which Plaintiff was subjected at Elmira Correctional Facility between July 2006 and July
2008, and the identity of the confidential informants who provided the information giving
rise to the suspicion on which several urinalysis tests were based. Defendants assert
they have produced all existing documents relevant to the urinalysis tests, including a
print-out of a computer screen reflecting the twelve occasions on which Plaintiff was
subjected to urinalysis for the period May 2000 through November 2008, a copy of the
Elmira Correctional Facility’s logbook for the period July 2006 through July 2008,
redacted as to names of other inmates who also underwent urinalysis, and a copy of
the only “Request for Urinalysis Test” form still within Defendants’ possession or
control, which pertains to the November 28, 2008 urinalysis, Doc. No. 21 at 15, Bates
No. 000002, ordered following Plaintiff’s involvement in an altercation with another
inmate, based on suspicion that the altercation may have been “due to drug
involvement.” Sleight Declaration ¶ 17. According to Defendants, because urinalysis
request forms are destroyed in the ordinary course of business, no other urinalysis
request forms responsive to Plaintiff’s Discovery Requests existed when Defendants
8

were served with such requests. Id.
“‘Spoliation is the destruction or significant alteration of evidence, or failure to
preserve property for another’s uses as evidence in pending or reasonably foreseeable
litigation.’” Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457 (2d
Cir. 2007) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.
1999)). “The obligation to preserve evidence arises when the party has notice that the
evidence is relevant to litigation or when a party should have known that the evidence
may be relevant to litigation.” Fujitsu Ltd. V. Federal Exp. Corp., 247 F.3d 423. 436 (2d
Cir. 2001).
With regard to Plaintiff’s motion to compel Request for Urinalysis Test forms,
Defendants’ failure to preserve relevant evidence after this action was commenced, and
failure to provide the identity of informants who provided statements on which the
“suspicious” urinalysis tests were based supports an award of sanctions. “Even in the
absence of a discovery order, a court may impose sanctions on a party for misconduct
in discovery under its inherent power to manage its own affairs.” Residential Funding
Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 106-07 (2d Cir. 2002) (citing DLC
Management Corp. v. Town of Hyde Park, 163 F.3d 124, 135-36 (2d Cir. 1988)). The
appropriate sanction on the instant facts is an adverse inference instruction at trial,
which will be awarded where the party seeking discovery establishes
(1) that the party having control over the evidence had an obligation to preserve
it at the time it was destroyed; (2) that the records were destroyed “with a
culpable state of mind”; and (3) that the destroyed evidence was relevant to the
party’s claim or defense such that a reasonable trier of fact could find that it
would support that claim or defense.
Residential Funding Corp., 306 F.3d at 107 (citing and quoting Byrnie v. Town of
9

Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001)).
Here, it is undisputed that several of the Request for Urinalysis Test forms were
“destroyed in the ordinary course of business,” as Defendants maintain was their
practice, Sleight Declaration ¶ 17, after the action, challenging the circumstances under
which Plaintiff was subjected to urinalysis tests based upon suspicion, was
commenced. As such, Defendants should have been aware of the relevancy of such
forms to the action given that several of the urinalysis tests to which Plaintiff was
subjected occurred within three years of the commencement of this action, viz.,
September 22, 2009, and taken steps to preserve the documentation rather than
permitting its destruction.
Although whether the destroyed documentation would be helpful to Plaintiff is not
known, Defendants have not submitted an affidavit from any DOCCS official, made
upon personal knowledge, establishing whether the contents of such destroyed
documentation was likely to have been helpful to Plaintiff. The Second Circuit has
specifically advised that district courts “must take care not to ‘hold[ ] the prejudiced
party to too strict a standard of proof regarding the likely contents of the destroyed [or
unavailable] evidence,’ because doing so ‘would subvert the . . . purposes of the
adverse inference, and would allow parties who have . . . destroyed evidence to profit
from that destruction.’” Residential Funding Corp., 306 F.3d at 109 (quoting Kronisch v.
United States, 150 F.3d 112, 128 (2d Cir. 1998), and citing Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001)). Further, that Defendants were grossly
negligent in failing to preserve the relevant Request for Urinalysis Test forms sufficiently
establishes the requisite culpable state of mind. i.e., bad faith, necessary to support an
10

adverse inference instruction. Residential Funding Corp., 306 F.3d at 109.
Accordingly, Plaintiff is entitled to the sanction of an adverse inference with regard to
the relevant, yet destroyed, Request for Urinalysis Test forms.
With regard to Plaintiff’s request that Defendants disclose the identity of any
confidential informants who provided the information on which Defendants’ decision to
subject Plaintiff to urinalysis is based, Defendants maintain that they have not such
information regarding the identity of such confidential informants and, alternatively,
even if such information did exist, the information need not be produced based on
“serious security concerns.” Sleight Declaration ¶ 21. Insofar as the predicate
‘suspicion’ for any urinalysis test to which Plaintiff was subjected did not include
statements made by a confidential informant,4 the information is not, as Defendants
assert, Sleight Declaration ¶ 21, protected from disclosure by the confidential informant
privilege. In support of this assertion, Defendants rely on Giakoumelos v. Coughlin, 88
F.3d 56, 52 (2d Cir. 1996), where the Second Circuit, recognizing the “unique”
requirements of prison security, held that the non-disclosure of a confidential
informant’s identity did not violate due process in the context of a prison disciplinary
proceeding. Nevertheless, Defendants fail to reference any case where the same
confidential informant privilege was applied in the context of a § 1983 civil rights action,
and the only such case found by the court’s research, Linares v. Mahunik, 2008 WL
2704895 (N.D.N.Y. July 7, 2008), for reasons unexplained, relies, incorrectly, on

4

The court notes that reason for the Novem ber 28, 2008 urinalysis has been designated as
“suspicious,” Discovery Responses at 14, Bates No. 000001, yet nowhere on the related “Request for
Urinalysis Test” form is there any indication that such “suspicion” was based on inform ation provided by a
confidential inform ant. Id. At 15, Bates No. 000002.
11

another district court case where the confidential informant privilege was applied in the
context of a disciplinary proceeding. Moreover, Defendants fail to assert any
justification for the establishment of such privilege as required by Fed.R.Evid. 501.
Alternatively, even if the informant’s privilege did apply, Defendants have waived
it. Specifically, although Defendants, objected to providing the identity of any
informants to Plaintiff, Response to Discovery Requests at 4-6, Defendants did not
specify that such objection was a “privilege,” nor did Defendants move for a protective
order or file any privilege log with regard to the requested information. As such,
Defendants have waived any such privilege. See Land Ocean Logistics, Inc. v. Aqua
Gulf Corp., 181 F.R.D. 229, 237-38 (W.D.N.Y. 1998) (holding failure to comply with
rules governing objections to discovery based on privilege or confidentiality, including
specifically identifying each document or communication and the type of privilege
asserted in a privilege log, waives the privilege).
Accordingly, as the informant’s privilege, as relied on by Defendants is
inapplicable to this action, Defendants are ORDERED to, within ten (10) days, either
produce to Plaintiff the names of any informants who provided statements giving rise to
the suspicion for any urinalysis test to which Plaintiff was subjected at Elmira
Correctional Facility, or to provide an affidavit from a DOCCS official, with the requisite
personal knowledge, establishing no such informants were involved in the decision to
subject Plaintiff to any urinalysis test.
Insofar as Plaintiff moves to compel information regarding death threats against
him, Defendants’ assert such records are within the custody and control of the New
York State Inspector General’s Office. Sleight Declaration ¶ 22. While it is true that a
12

party is not required to produce documents that are not within its possession or control,
see Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (“a
party is not obliged to produce, at the risk of sanctions, documents that it does not
possess or cannot obtain”), Defendants, again, have failed to support their assertion
with an affidavit made by a DOCCS official with personal knowledge. As such,
Defendants are ORDERED to, within ten (10) days, either provide an affidavit
establishing Defendants are not in possession of, nor can obtain, the requested
information, or produce the requested information.

3.

Motion for Sanctions
Plaintiff separately moves under Fed.R.Civ.P. 11 for sanctions based on

Defendants’ failure to serve Plaintiff with a copy of Defendants’ Memorandum of Law in
opposition to Plaintiff’s motion to amend, Defendants’ papers filed in opposition to
Plaintiff’s motion to strike the amended answer, and Defendants’ answer filed in
February 2011. There is no merit to this request.
First, Defendants’ Memorandum of Law filed in opposition to Plaintiff’s motion to
amend (Doc. No. 24), is accompanied by a certificate of service (Doc. No. 24 at 9)
which creates a presumption of receipt. See Lopes v. Gonzales, 468 F.3d 81, 85 (2d
Cir. 2006) (recognizing a presumption of receipt where court’s record contained proper
certificate of service setting forth document was mailed to party at his last known
address). Here, a review of such certificate of service establishes the address where
Defendants’ mailed the memorandum of law is the same as that appearing on the
docket for Plaintiff and establishes the presumption that Plaintiff received the
13

memorandum.5
Second, Defendants’ opposition to Plaintiff’s motion to strike Defendants’ answer
to the Amended Complaint was not filed until September 14, 2012, after Plaintiff filed
his motion seeking Rule 11 sanctions. As such, that portion of Plaintiff’s motion is now
moot.
Finally, with regard to Defendants’ answer to the original complaint, a proper
certificate of service accompanying the answer (Doc. No. 17 at 5), establishes the
answer was mailed to Plaintiff’s address of record.6
Accordingly, there is no merit to Plaintiff’s Motion for Sanctions.

CONCLUSION
Based on the foregoing, Plaintiff’s motions to strike (Doc. No. 37), and for
sanctions (Doc. No. 42), are DENIED; Plaintiff’s motion to compel discovery (Doc. No.
38), is GRANTED. Defendants are ORDERED to produce within ten (10) days, the
identity of any informants who provided statements giving rise to the suspicion for any
of the urinalysis tests to which Plaintiff was subjected, or an affidavit made by a DOCCS
official with personal knowledge explaining that no such informants were involved;
Plaintiff is entitled to an adverse inference instruction at trial regarding the spoliated
Requests for Urinalysis Test forms.
5

The court notes that even if Plaintiff did not receive Defendants’ m em orandum of law filed in
opposition to Plaintiff’s m otion to am end, the issue is now m oot given Plaintiff’s m otion to am end has been
granted, with Plaintiff filing the Am ended Com plaint on January 30, 2012 (Doc. No. 34).
6

Because the Am ended Com plaint supersedes the original com plaint, even if Defendants have
failed to serve Plaintiff with a copy of the answer to the original com plaint, Plaintiff cannot attribute any
prejudice to such failure.
14

SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

March 28, 2013
Buffalo, New York

Any appeal of this Decision and Order must be taken to by filing a notice of
appeal with the Clerk of the Court within 14 days of the filing of this
Decision and Order pursuant to Fed. R. Civ. P. 72(a).

15