Holmes v. Fischer et al
Filing
76
DECISION and ORDER. Defendants' Motion to Amend (Doc. No. 55) is DENIED;Defendants' Motion for Reconsideration (Doc. No. 62) is DENIED; Plaintiff's Requestfor Reconsideration (Doc. No. 66) is DENIED; Plaintiff'S Motion to Proceed In FormaPauperis and for Appointment of Counsel (Doc. No. 67) is GRANTED; Plaintiff'sSecond Motion to Compel (Doc. No. 72) is GRANTED in part and DENIED in part.. Signed by Hon. Leslie G. Foschio on 6/20/2013. (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
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 Defendants’ motions to amend the Case Management Order (Doc. No. 55), filed
February 12, 2012, and for relief from judgment or order (Doc. No. 62), filed April 8,
2013, as well as Plaintiff’s motions to appoint counsel and to proceed in forma pauperis
(Doc. No. 67), filed April 11, 2013, and to compel discovery (Doc. No. 72), filed May 6,
2013, and Plaintiff’s request for reconsideration (Doc. No. 66), filed April 10, 2013.
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” or “ECF”), and Southport
Correctional Facility (“Southport”). Defendants to this action are all current or former
employees of New York State Department of Corrections and Community Supervision
(“DOCCS”). On January 30, 2012, Plaintiff, with leave of the court, filed an amended
complaint (Doc. No. 34) (“Amended Complaint”), asserting 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”). With regard to his claims challenging his
repeated non-random urine tests as in violation of the Fourth Amendment, Plaintiff
specifically alleges that despite having no history of drug use, Plaintiff was repeatedly
subjected to such urinalysis on March 10, 2007, June 2007,2 July 14, 2007, July 27,
2007, February 2, 2008, August 27, 2008, and November 18, 2008, “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
1
The Facts are taken from the pleadings and motion papers filed in this action.
2
Plaintiff does not specify the precise date in June 2007 on which he underwent urinalysis.
2
Complaint, Facts ¶¶ 1-3, 15-16. According to Plaintiff, because DOCCS policy requires
a DOCCS official at the rank of lieutenant or higher to approve each urinalysis request,
where a urinalysis request is based on suspicion attributed to a confidential informant,
unless the DOCCS official investigates and confirms the validity of the confidential
informant’s statement assertion regarding another inmate’s abuse of drugs, it is
essentially the confidential informant who submits the inmate for urinalysis testing.
Amended Complaint ¶ 7. Plaintiff further maintains the urinalysis requests challenged
here were “rubber stamped” by Wenderich, ECF Lieutenant Zigenfris (“Zigenfris”), and
ECF Superintendent Mark Bradt (“Bradt”). Id. ¶¶ 23-29. It is undisputed that none of
the urinalysis tests to which Plaintiff was subjected was positive. Plaintiff also alleges in
further support of his claim that Defendants corroborated with Confidential Informants
that on November 8, 2008, his cell was searched in connection with an anonymous
death threat lodged by the confidential informants upon whose information the Form
2082s were based, resulting in the discovery of three packs of cigarettes in excess of
the limit allowed under DOCCS policy, for which Plaintiff was issued a minor
misbehavior report and placed in keep-lock confinement for six days. Amended
Complaint ¶¶ 32-34.
In May 2011, Plaintiff served Defendants with a request for production of
documents (“Discovery Demands”),3 to which Defendants filed responses on July 5,
2011 (Doc. No. 21) (“Response to Discovery Demands”), and supplemental responses
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 Demands. Nor is it clear from the record when Defendants were served
with the Discovery Demands other than a statement on p. 31 in a memorandum of law filed in support of
Plaintiff’s Motion to Compel (Doc. No. 39), that Plaintiff served his Discovery Demands on Defendants in
“May, 2011."
3
on November 21, 2011 (Doc. No. 27) (“Supplemental Response to Discovery
Demands”). Plaintiff, asserting Defendants failed to include in their discovery
responses the Requests for Urinalysis Test forms (“Form 2082s”) related to all nonrandom urinalysis testing to which Plaintiff was subjected between July 2006 and July
2008,4 the identity of the confidential informants who purportedly provided the
information implicating Plaintiff in the use of illegal drugs, and information Plaintiff
asserts is in the possession of New York’s Inspector General’s Office regarding death
threats allegedly made against Plaintiff, filed a motion to compel discovery and for
sanctions on April 4, 2012 (Doc. No. 38) (“Motion to Compel”), a motion for sanctions
pursuant to Fed.R.Civ.P. 11 (“Rule 11"), on August 6, 2012 (Doc. No. 42) (“Motion for
Sanctions”), and an addendum to his Motion to Compel, and for Sanctions on August
30, 2012 (Doc. No. 48) (“Plaintiff’s Addendum”).
On February 12, 2013, Defendants filed a motion amend the case management
order (Doc. No. 55) (“Motion to Amend”), supported by the Declaration of Assistant
Attorney General (“A.A.G.”) David J. Sleight (“Sleight”) (Doc. No. 56) (“Sleight’s
Declaration - Motion to Amend”). On March 1, 2013, Plaintiff filed his Declaration in
Opposition to Defendant’s Declaration to Amend Case Management Order (Doc. No.
58) (“Plaintiff’s Declaration - Motion to Amend”). On March 6, 2013, Defendants filed in
4
According to Defendants’ Response to Discovery Demands, Plaintiff requested:
“Copy of all "urinalysis request forms" for urinalyses Elmira Prison Officials subjected me to in
March 10, 2007, June, 2007; July 14, 2007, July 27, 2007; Febreuary [sic] 2, 2008; July 25, 2008,
August 27, 2008; August 30, 2008. This requests includes but is in no way limited to, the February
2, 2008 urinalysis request and the August 27, 2008 Zigenfris approved request. This request also
covers any and all urinalysis Elmira Prison Officials subjected Plaintiff to while in Elmira Prison
between July, 2006 and December, 2008.”
Response to Discovery Demand No. 3.
4
further support of the Motion to Amend a Declaration of A.A.G. Sleight (Doc. No. 59)
(“Sleight’s Reply Declaration - Motion to Amend”). Without this court’s permission,
Plaintiff filed on March 15, 2013, the Affirmation in Opposition to Defendants’
Declaration of March 6, 2013 Seeking CMO Extension (Doc. No. 60) (“Plaintiff’s SurReply Affirmation - Motion to Amend”).
In a Decision and Order filed March 28, 2013 (Doc. No. 61) (“March 28, 2013,
D&O”), the undersigned, inter alia, because Defendants were unable to produce the
Form 2082s, some of which pertained to urinalysis testing of Plaintiff after he
commenced this action, granted Plaintiff’s motion to compel (1) ordering Defendants to
either produce to Plaintiff, within ten days, an affidavit establishing Defendants are not
in possession of, nor can obtain, requested information regarding death threats
allegedly made against Plaintiff in November 2008, at Elmira, or produce the requested
information, (2) sanctioning Defendants with an adverse inference regarding the
spoliated Form 2082s, requested by Plaintiff, and (3) ordering Defendants either to
produce to Plaintiff 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. March 28, 2013, D&O at 14. On April 8, 2013, Defendants
filed a Motion for Reconsideration of the March 28, 2013 D&O (Doc. No. 62)
(“Defendants’ Motion for Reconsideration”), supported by the Declaration of DOCCS
Deputy Superintendent of Security at ECF Stephen J. Wenderlich (Doc. No. 63)
(“Wenderlich’s Declaration”) with attached exhibits A through E (“Defendants’ Exh(s).
__”). Unrelated to the Motion to Amend, Defendants also filed on April 8, 2013, the
5
Declaration of A.A.G. Sleight (Doc. No. 64) (“Sleight Declaration”), in which Sleight
explains that, as directed by the March 28, 2013 D&O, Defendants have provided
Plaintiff with the Investigative Report from DOCCS Inspector General’s Office (“IG
Report”) regarding the “death threats” allegedly made against Plaintiff in November
2008, attaching a copy of the IG Report as an exhibit. On April 10, 2013, Plaintiff filed
the Affirmation in Support of Motion for Harsher Discovery Sanctions: Reconsideration
Application (Doc. No. 66) (“Plaintiff’s Request for Reconsideration”).5
On April 11, 2013, Plaintiff filed a Motion for Appointment of Counsel and to
Proceed In Forma Pauperis (Doc. No. 67) (“Motion for Counsel”), supported by the
attached Affidavit in Support of Motion to Proceed In Forma Pauperis and for Counsel
Assignment (“Plaintiff’s Affidavit - Motion for Counsel”), and an Affirmation in Opposition
to Defendants’ Declaration of March 6, 2013 Seeking CMO Extension (Doc. No. 68)
(“Plaintiff’s Further Sur-Reply Affirmation - Motion to Amend”). On April 18, 2013,
Plaintiff filed a Declaration in Opposition to Defendants’ Motion for FRCP 60(b) Relief
and Plaintiff’s Declaration for Discovery Sanctions and Recusal of Defense Counsel
(Doc. No. 69) (“Plaintiff’s Response - Defendants’ Motion for Reconsideration”).
By letter to the undersigned filed April 22, 2013 (Doc. No. 70) (“April 22 Letter”),
Plaintiff submitted further arguments in opposition to Defendants’ Motion for
Reconsideration.6 On May 6, 2013, Plaintiff filed the Motion to Renew Discovery Motion
5
Although not formerly filed as a motion for reconsideration, the court will treat it as such.
6
Without explanation, the April 22 Letter was re-filed on April 25, 2013 (Doc. No. 71).
6
Pursuant to FRCP 60(b) (Doc. No. 72) (“Second Motion to Compel”),7 supported by the
attached Verified Declaration in Support of Motion for FRCP 60(b) Relief (“Plaintiff’s
Declaration - Second Motion to Compel”), with exhibits 1 and 2 (“Plaintiff’s Exh(s). _”).
On May 10, 2013, Defendants filed in further support of Defendants’ Motion for
Reconsideration the Declaration of A.A.G. Sleight (Doc. No. 73) (“Sleight’s Reply
Declaration - Defendants’ Motion for Reconsideration”), and the Declaration of A.A.G.
Kim S. Murphy (“Murphy”) (Doc. No. 74) (“Murphy Declaration - Defendants’ Motion for
Reconsideration”). On June 4, 2013, Plaintiff filed the Additional Declaration in
Opposition to Defendants’ Opposition to Reconsideration (Doc. No. 75) (“Plaintiff’s
Additional Declaration - Defendants’ Motion for Reconsideration”). Oral argument was
deemed unnecessary.
Based on the following, Defendants’ Motion to Amend is DENIED; Defendants’
Motion for Reconsideration is DENIED; Plaintiff’s Request for Reconsideration is
DENIED; Plaintiff’s Motion to Proceed In Forma Pauperis and for Appointment of
Counsel is GRANTED; Plaintiff’s Second Motion to Compel is GRANTED in part and
DENIED in part.
DISCUSSION
1.
Motion to Amend
7
The court’s review of the Motion to Renew Motion to Compel establishes Plaintiff seeks to
compel discovery of documents, the existence of which Plaintiff only recently was made aware; the court
thus treats the document as a motion to compel.
7
Defendants move to amend the March 10, 2011 Scheduling Order (Doc. No. 20)
(“Scheduling Order”), arguing extensive motion practice in this action has rendered the
various litigation deadlines in the Scheduling Order “stale.” Sleight Declaration - Motion
to Amend, ¶¶ 7-9. Defendants specifically point to such motions as Defendants’ motion
seeking dismissal for failure to state a claim, or a more definitive statement (Doc. No.
3), and Plaintiff’s motions to file an amended complaint (Doc. No. 22), to strike
Defendants’ answer to the Amended Complaint (Doc. No. 37), and to compel discovery
(Doc. No. 38), and for sanctions (Doc. No. 42). Id. at ¶ 7. Defendants further assert
they “have also produced extensive documents in response to plaintiff’s discovery
demands” and that “[p]aper discovery is essentially complete.” Id. ¶ 8. Defendants
maintain they need to depose Plaintiff after which Defendants anticipate filing a
dispositive motion. Id. ¶ 9.
In opposition, Plaintiff asserts that Defendants have frustrated discovery in an
attempt to delay this action, and now seek an extension of time to file dispositive
motions. Plaintiff’s Declaration - Motion to Amend ¶¶ 3-4. According to Plaintiff,
despite asserting they have complied with discovery, Defendants have denied Plaintiff’s
discovery requests, thereby necessitating Plaintiff’s motions to compel discovery and
for sanctions which were the subject of the March 28, 2013 D&O. Id. ¶ 4. Plaintiff
opposes being subjected to a “late deposition” given that substantial time has elapsed,
Defendants have continued to deny Plaintiff discovery that could assist Plaintiff in such
deposition, and Defendants have provided no reason for failure to timely depose
Plaintiff. Id. ¶¶ 4(b) - 5.
In further support of their Motion to Amend, Defendants argue that Plaintiff’s
8
dissatisfaction with the discovery process does not justify denying the Motion to Amend,
thereby denying Defendants discovery they need to defend this action, Sleight’s Reply
Declaration - Motion to Amend ¶ 2, and that Plaintiff’s assertions that Defendants have
refused to comply with and repeatedly ignored the Scheduling Order “ring hollow” in
light of Plaintiff’s own failure to timely file his motions seeking leave to file an amended
complaint and to compel discovery. Id. ¶ 3. According to Defendants, they have
provided the requisite “good cause” for leave to amend the Scheduling Order insofar as
the Amended Complaint was not filed until January 30, 2012, only two months before
the discovery cutoff on March 31, 2012. Id. ¶ 4.
In further opposition to the Motion to Amend, Plaintiff argues that Defendants’
assertion that Plaintiff’s motions for leave to file an amended complaint and to compel
discovery were untimely ignores the Supreme Court’s holding in Houston v. Lack, 487
U.S. 266, 270 (1988), that a pro se inmate’s legal papers are considered filed when
they are delivered to the prison official responsible charged with forwarding the papers
to the district court, Plaintiff’s Sur-Reply Affirmation - Motion to Amend ¶ 4, and that
Defendants have utterly failed to set forth any good cause in support of their Motion to
Amend. Id. ¶ 5. By letter to the undersigned dated March 22, 2013 (“March 22, 2013
Letter”),8 Plaintiff explains that amending the Scheduling Order as Defendants request
will give Defendants an opportunity to depose Plaintiff and file dispositive motions
despite Defendants’ frustrating Plaintiff’s discovery efforts. March 22, 2013 Letter at 2.
8
The March 22, 2013 Letter is attached to Plaintiff’s Further Sur-Reply Affirmation - Motion to
Amend. Plaintiff’s Further Sur-Reply Affirmation - Motion to Amend is a copy of Plaintiff’s Sur-Reply
Affirmation - Motion to Amend, except for the attached March 22, 2013 Letter.
9
A motion to amend a court’s scheduling order is made under Fed.R.Civ.P.
16(b)(4) which provides “[a] schedule may be modified only for good cause and with the
judge’s consent.” To establish the requisite “good cause” for amending a scheduling
order, the party seeking amendment must demonstrate that the deadline cannot be met
“despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16 advisory
committee’s note (1983 amendment, discussion of subsection (b)). Where, however,
the court determines that the deadline cannot be met, despite the diligence of the party
seeking the extension, the moving party has demonstrated good cause and the motion
to amend the scheduling order and extend deadlines may be granted. Parker v.
Columbia Pictures Industries, 204 F.3d 326, 340 (2d Cir. 2000). In the instant case,
Defendants have failed to establish the requisite good cause to amend the scheduling
order.
Preliminarily, the Scheduling Order provides that “[n]o extension of the above
cutoff dates will be granted except upon written application, filed prior to the cutoff date,
showing good cause for the extension.” Id. ¶ 5 (italics added). Defendants, however,
did not file their Motion to Amend until February 12, 2013, almost nine months after the
May 31, 2012 deadline for filing dispositive motions, Scheduling Order ¶ 4, and nearly
11 months after the March 16, 2012 deadline for the close of discovery, id. ¶ 3, the two
deadlines Defendants seeks to extend. As such, Defendants have not complied with
the Scheduling Order’s direction that any motion to amend the deadlines must be filed
before the relevant deadline.
Further, Defendants’ papers in support of their Motion to Amend fail to establish
any good cause for the amendment and are devoid of any explanation as to why the
10
original deadlines established by the Scheduling Order could not, despite Defendants’
diligence, have been met, and Defendants’ attempt to attribute their need for an
extension of the Scheduling Orders’ deadlines to Plaintiff’s filing of motion ignores the
fact that the Scheduling Order specifically directed that any extensions were to be
requested prior to the relevant cutoff dates. Nor have Defendants explained why they
were unable to depose Plaintiff before the March 30, 2012 discovery cutoff, given that
Plaintiff’s Amended Complaint was filed two months earlier on January 30, 2012.
Simply put, Defendants had ample time to move to amend the Scheduling Order before
all the deadlines established therein had expired, in direct contradiction to the
Scheduling Order’s directive, yet Defendants, without any explanation for the delay, did
not file the instant motion until February 12, 2013.
Nor have Defendants attributed their failure to timely file their Motion to Amend
to excusable neglect which, under Fed.R.Civ.P. 6, a district court has discretion “to
extend the time during which an act must be done ‘on motion made after the time has
expired if the party failed to act because of excusable neglect.’” In re American Express
Financial Advisors Securities Litigation, 672 F.3d 113, 129 (2d Cir. 2011) (quoting
Fed.R.Civ.P. 6(b)(1)(B)). In determining whether to attribute a party’s failure to timely
act to excusable neglect, federal courts, including the Second Circuit Court of Appeals,
consider four factors ser forth by the Supreme Court. Id. (citing Pioneer Investment
Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993)
(construing parallel provision, Fed.Rules Bankr.Proc. Rule 9006(b)(1)). These factors
include
11
the danger of prejudice to the [nonmovant], the length of the delay and its
potential impact on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and whether the
movant acted in good faith.
Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507
U.S. 380, 395 (1993) (construing Bankruptcy Rule 9006(b)).
“While those factors are the central focus of the inquiry, the ultimate determination
depends upon a careful review of ‘all relevant circumstances.’” In re American Exp.
Financial Advisors Securities Litig., 672 F.3d at 129 (quoting Pioneer Investment
Services Co., 507 U.S. at 395). See also In re: PaineWebber Ltd. P’Ships Litig., 147
F.3d 132, 135 (2 Cir. 1998) (“To establish excusable neglect, . . . a movant must show
good faith and a reasonable basis for noncompliance.”). Furthermore, the district court
uses its discretion in applying the excusable neglect standard to the factual
circumstances. In re American Exp. Financial Advisors Securities Litig., 672 F.3d at
130. Applying the excusable neglect standards to the circumstances of the instant case
does not support finding excusable neglect to permit amending the Scheduling Order.
In particular, not only have Defendants not put forth any argument suggesting
excusable neglect as a viable ground for their failure to timely move to extend the
Scheduling Order, the facts of the case fail to establish any reasonable basis for the
noncompliance. Defendants’ filing of the Motion to Amend nine months after the May
31, 2012 deadline for filing dispositive motions, and 11 months after the March 16,
2012 deadline for the close of discovery, is prejudicial to Plaintiff and will only further
delay the action which has been pending in this court for close to four years. Nor have
Defendants attributed their belated motion to any circumstances beyond their control.
Simply put, no ground capable of supporting a finding of excusable neglect under Rule
12
6 are present.
Insofar as Defendants maintain Plaintiff has filed motions to file the amended
complaint and to compel discovery beyond the deadlines established by the Scheduling
Order, a review of the case file establishes that the two motions on which Defendants
rely in support of this argument were timely placed in the hands of prison officials.
Specifically, although Plaintiff’s motion to file an amended complaint (Doc. No. 22), was
not filed until August 3, 2011, five days after the Scheduling Order’s July 29, 2011
deadline, and Plaintiff’s motion to compel discovery (Doc. No. 38), was not filed until
April 4, 2012, five days after the Scheduling Order’s March 30, 2012 deadline, it is
settled that a pro se inmate’s legal documents are deemed filed as of the date the
inmate gives the documents to the prison officials to be forwarded to the court. See
Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (extending Supreme Court’s holding in
Houston v. Lack, 487 U.S. 266, 270 (1988), that pro se inmate’s appeal is considered
filed when inmate delivers appeal papers to prison officials responsible for forwarding
legal papers to court for filing to complaints filed by pro se inmates); see also Devers v.
New York State Dep’t. Of Corr. Servs., 2011 WL 4839425, at * 2 (W.D.N.Y. Oct. 12,
2011) (“Under the so-called ‘prison mailbox rule,” a pro se inmate’s pleading or motion
is considered filed as of the date it is given to prison officials for forwarding to the court
clerk.”). Further, “[s]ince the exact date of mailing in this case is not known, the court
looks to the date that plaintiff signed [the relevant papers].” Mitchell v. Bell, 2006 WL
3043126, at *4 (N.D.N.Y. Oct. 23, 2006). Significantly, Plaintiff’s motion to file an
amended complaint was signed on July 29, 2011, and his motion to compel was signed
on March 23, 2012. Plaintiff also avers his motions to file an amended complaint and to
13
compel were timely delivered to the prison officials responsible for filing the papers such
that the motions should be considered timely filed in accordance with the Supreme
Court’s decision in Houston, 487 U.S. at 270. Plaintiff’s Sur-Reply Affidavit - Motion to
Amend ¶ 4. The motion are thus deemed timely and the fact they did not appear on the
docket until a few days after their respective deadlines cannot fairly be attributed to any
dereliction on the part of Plaintiff.
Accordingly, Defendants have failed to establish any good cause to amend the
Scheduling Order and their Motion to Amend is DENIED.
2.
Reconsideration of March 28, 2013 D&O
Defendants move for reconsideration of the March 28, 2013 D&O sanctioning
Defendants with an adverse inference regarding the spoliation of the Form 2082s
Defendants failed to produce to Plaintiff in response to his Discovery Demands, as well
as the requirement that Defendants disclose to Plaintiff the identity of those confidential
informants who provided information giving rise to the suspicion on which some of the
urinalysis tests allegedly were based, or provide an affidavit from a DOCCS official with
personal knowledge attesting that no such informants were involved in the decision to
subject Plaintiff to non-random urinalysis based on suspicion. Defendants’ Motion for
Reconsideration. In support, Defendants submit Wenderlich’s Declaration explaining
that as Deputy Superintendent of Security at Elmira, Wenderlich oversees DOCCS
inmate urinalysis testing program at Elmira. Wenderlich’s Declaration ¶¶ 1, 4.
According to Wenderlich, upon being advised by Defendants’ counsel that
Defendants’ failure to provide Plaintiff with the requested Forms 2082s associated with
14
the urinalysis tests Plaintiff challenges in this action has resulted in a court order
directing that a jury instruction may be given at trial instructing the jury that they may
draw an adverse inference that such Form 2082s were favorable to Plaintiff’s claims, as
well as an order directing Defendants disclose the identification of the confidential
informants or an affidavit from someone at DOCCS with knowledge that no such
informants exists, Wenderlich Declaration ¶ 5, Wenderlich conducted his own inquiry
into what happens to the Form 2082s after the results of the tests are received. Id. ¶ 12.
Wenderlich learned from his investigation that after a urinalysis test results are
received, the Form 2082s are sent to the DOCCS Captain whose secretary enters the
results into DOCCS’s computerized drug testing system and then files the forms in the
Captains’s office. Id. As the Form 2082s accumulate, they are periodically boxed,
labeled, and stored in the correctional facility’s basement archives. Id. Upon
determining the requested Form 2082s were likely archived in the basement of ECF,
Wenderlich designated someone9 to search the archived forms and the relevant Form
2082s were located. Id. ¶ 13. Wenderlich attributes the delay in producing the Form
2082s to the fact that personnel in ECF’s Inmate Records Office who initially were
responsible for responding to the demands were unaware that old Form 2082s were
archived after being removed from the Captain’s office. Id. ¶ 14. Because the forms
have now been located, Defendants request the undersigned reconsider the decision to
sanction Defendants with an adverse inference regarding the spoliated Form 2082s, as
well as the order to disclose the identity of the informants whose information gave rise
9
The record does not identify the person Wenderlich designated for this task.
15
to the suspicion resulting in the urinalysis testing Plaintiff challenges. Id. ¶ 15.
According to Wenderlich, confidential informants are regarded by other inmates as
“snitches” such that disclosing the names of confidential informants places the
informants at risk of serious physical harm, even if the informant has been transferred
to another correctional facility, because the information tends to travel. Id. ¶¶ 15-16.
Plaintiff also seeks reconsideration of the March 28, 2013 D&O, asserting the
record establishes Defendants spoliated the Form 2082s Plaintiff demanded, and that
had such information been provided to Plaintiff, those DOCCS officials whose names
appear on the Form 2082s would have been added as defendants to this action.
Plaintiff’s Request for Reconsideration ¶¶ 2-5. As such, Plaintiff requests the
undersigned consider imposing harsher sanctions such as preclusion, dispositive relief,
and striking the answer. Id. ¶ 6. According to Plaintiff, because the Form 2082s were
spoliated, Plaintiff needs to review all the prison records Defendants Wenderlich,
Zigenfris, and Bradt claimed to have reviewed in response to the urinalysis requests
because such requests would include and incorporate all urinalysis tests to which
Plaintiff was subjected. Id. ¶ 10.
In opposition to Defendants’ Motion for Reconsideration, Plaintiff again requests
the court impose harsher sanctions against Defendants in connection with the
spoliation of the Form 2082s, and failure to disclose the confidential informants’ identity,
and also requests that Defendants’ counsel be removed from the action. Plaintiff’s
Response - Defendants’ Motion for Reconsideration ¶¶ 2-3. Plaintiff also recounts how
Defendants’ spoliation of the Form 2082s and failure to disclose the confidential
informants’ identities has frustrated Plaintiff’s litigation of this action. Id. ¶¶ 4-6.
16
According to Plaintiff, that Defendants discovered the requested Form 2082s and IG
Report immediately following the March 28, 2013 D&O establishes Defendants have
engaged in “a discernable pattern of prevarication. . . ,” id. ¶¶ 7-8, and Plaintiff objects
to the fact that on the IG Report Defendants disclosed, the confidential informant’s
name is redacted, asserting that any danger posed by the revelation of the informant’s
identity can be avoided by placing the informant in protective custody, assuming the
informant remains incarcerated, a fact on which Defendants have been silent. Id. ¶¶ 8,
17-20. Plaintiff further maintains that Defendants’ misrepresentations that the Form
2082s had been destroyed in the normal course of business demonstrates Defendants
intentionally mislead Plaintiff and requires further sanctions. Id. ¶¶ 14-16, 21, 27.
Plaintiff also points out that Defendants continue to assert that the identity of
confidential informants named in both the Form 2082s and the IG Report is privileged
information, yet have failed to produce any relevant privilege log and the failure to do so
waives any privilege that could be asserted requiring Defendants disclose the identity of
all confidential informants so Plaintiff can sue the informants. Id. ¶¶ 22(b)-24, 26.
Plaintiff also contends Defendants must produce information regarding the September
3, 2008 Superintendent’s Hearing on disciplinary charges against another inmate,
Jermaine Gilmore (“Gilmore”), in which it was established that the urinalysis testing to
which Plaintiff and Gilmore were subjected on August 27-28, 2008, were based on a
Form 2082 bearing the forged signature of DOCCS Official “Harvey.” Id. ¶ 9. Plaintiff
maintains when he questioned Wenderlich about the forgery revelation, Wenderlich
responded that the urinalysis to which Plaintiff and others had been subjected was a
result of a “mistake in paperwork,” id. ¶ 10, which Plaintiff maintains necessitates
17
disclosure of such paperwork to establish Wenderlich’s deliberate indifference to
Plaintiff’s complaints about urinalysis harassment. Id. ¶¶ 11, 25. Finally, Plaintiff
maintains that if it is discovered that A.A.G. Sleight was involved in the
misrepresentations regarding the spoliation of evidence, then the witness/advocate rule,
22 N.Y.C.R.R. § 1200.00 Rule 3.7(a) and (b) (prohibiting attorney from acting as
advocate before a tribunal in a matter in which attorney is likely to be a witness on a
significant issue of fact), requires Sleight recuse himself from representing Defendants
in this matter. Id. ¶ 28.
In further support of reconsideration, Defendants argue that because the Form
2082s that allegedly were issued upon advice received from confidential informants
implicating Plaintiff in drug abuse, and which were recently produced to Plaintiff, do not
contain the names of such informants, Defendants’ failure to earlier produce the forms
did not delay Plaintiff’s discovery of the alleged informants’ identities, and thus did not
result in any prejudice to Plaintiff, rendering the adverse inference sanction imposed by
the March 28, 2013 D&O unnecessary. Sleight’s Reply Declaration - Defendants’
Motion for Reconsideration ¶ 6. Defendants also contend that their production of the IG
Report prepared in connection with the anonymous death threats made against Plaintiff
in November 2008, albeit redacted as to the confidential informant’s identity,
establishes that the confidential informant made no death threats against Plaintiff;
rather, the confidential informant merely advised that others were threatening to harm
Plaintiff. Id. ¶ 7. Further, when the IG investigator, who was able to identify the
confidential informant only because the Captain recognized the informant’s handwriting,
confronted the informant regarding the anonymous letter, the informant maintained he
18
had no proof any inmates were planning to harm Plaintiff, such that the informant’s
allegations were unfounded. Id. Accordingly, Defendants assert that revelation of the
identity of confidential informants will not assist Plaintiff’s pursuit of his claims against
Defendants, particularly in light of the risk of harm to such informants upon disclosure of
their identities. Id. ¶¶ 9, 11.
Defendants take further issue with Plaintiff’s assertions that Defendants
intentionally misrepresented they attempted in good faith to locate the Form 2082s
responsive to Plaintiff’s Discovery Demands given that A.A.G. Sleight was not with the
Attorney General’s office when Plaintiff commenced this action and served his
Discovery Demands in Jule 2011. Sleight Reply Declaration - Defendants’ Motion for
Reconsideration ¶ 12. A.A.G.Kim S. Murphy (“Murphy”) prepared Defendants’ July 5,
2011 responses to Plaintiff’s Discovery Demands. Id.; Murphy Declaration Defendants’ Motion for Reconsideration ¶ 2. According to A.A.G. Murphy, upon
receiving Plaintiff’s Discovery Demands, she followed the Attorney General Office’s
standard practice for responding to an inmate’s discovery requests by forwarding the
Discovery Demands to the appropriate correctional facility’s Inmate Records
Coordinator (“IRC”), who then gathered the requested material which it forwarded to the
Attorney General’s Office. Murphy Declaration - Defendants’ Motion for
Reconsideration ¶¶ 3-4. With regard to the Form 2082s and identities of confidential
informants Plaintiff requested, the ECF IRC advised that ECF files contained no
documents responsive to such request. Id. ¶ 5. When Plaintiff filed his Motion to
Compel, A.A.G. Murphy confirmed that the response by DOCCS regarding such
demanded documents confirmed the Form 2082s no longer existed and there was no
19
record as to the identity of the confidential informants. Id. ¶ 6.
Plaintiff further argues with regard to reconsideration of the March 28, 2013 D&O
requested by Defendants that Defendants’ papers filed in further support of Defendants’
Motion for Reconsideration fails to set forth any ground for reconsideration, and only
reinforces Plaintiff’s assertion that Defendants intentionally misrepresented the
availability of the Form 2082s, both A.A.G. Sleight and Murphy have “thrown” the ECF
IRC “under the bus” to deflect attention to such misrepresentations, requiring Sleight
recuse himself. Plaintiff’s Additional Declaration - Defendants’ Motion for
Reconsideration ¶¶ 2-4. Plaintiff maintains he intends to depose or serve
interrogatories on each of the DOCCS officials named in the recently produced Form
2082s in an attempt to learn the identity of the confidential informants, and that
Defendants should be precluded from opposing such discovery after the discovery
deadline given the delay is attributable only to Defendants’ misrepresentations. Id. ¶¶
5-6. Plaintiff further asserts information regarding the August 28, 2008 urinalysis of
Plaintiff and Gilmore for which, because Sgt. Harvey admitted his signature was
falsified on the relevant Form 2082s, the charges were dropped against Gilmore, is
relevant to proving Plaintiff’s claim that Defendants were engaged in a conspiracy to
harass Plaintiff by subjecting him to urinalysis testing based on falsified suspicion. Id.
¶¶ 8-9. Plaintiff also disputes Defendants’ assertion that the IG investigator’s
conversation with the confidential informant regarding death threats against Plaintiff
revealed only that the informant was not the author of such threats. Id. ¶ 10.
Motions for reconsideration of an nondispositive order are considered pursuant
to Fed.R.Civ.P. 60 (“Rule 60"), which provides “the court may correct a clerical mistake
20
or a mistake arising from oversight or omission whenever one is found in a judgment,
order, or other part of the record. . . .” Fed.R.Civ.P. 60(a). Grounds for such relief
include, as relevant here, “mistake, inadvertence, surprise, or excusable neglect,” and
“any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1) and (6). A motion for
reconsideration pursuant to Rule 60(b) “is addressed to the ‘sound discretion of the
district court and . . . [is] generally granted only upon the showing of exceptional
circumstances.’” Harvey v. Chemung County, 2012 WL 1431228, at * 1 (W.D.N.Y. Apr.
24, 2012) (quoting Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff’d, 501 U.S.
115 (1991)). “‘ The standard for granting such a motion is strict and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data
that the court overlooked - matters, in other words, that might reasonably be expected
to alter the conclusion reached by the court.’” Id. (quoting Shrader v. CSX
Transportation, Inc., 70 F.3d 225 (2d Cir. 1995)).
Here, Defendants have failed to identify any factual or legal argument compelling
reconsideration of the March 28, 2013 D&O. Defendants offer utterly no explanation
why the proper steps for locating the requested information, i.e., the relevant Form
2082s, which was ultimately produced within a brief amount of time, could not have
been taken earlier and, thus, have failed to establish any mistake, inadvertence,
surprise, or excusable neglect supporting reconsideration under Rule 60(b)(1). Rather,
despite Defendants’ representations that the forms did not exist and thus could not be
produced, that Defendants were unable to locate, for more than 22 months, the Form
2082s and death threat information Plaintiff initially demanded in May 2011, yet within
two weeks of the March 28, 2013 D&O Defendants had not only managed to determine
21
the proper channel within DOCCS to locate the requested documents, retrieve the
documents, and prepare and file the Motion for Reconsideration strongly implies
Defendants’ attempts to respond to Plaintiff’s Discovery Demands were not diligent, but
were wilfully negligent or disdainful, and possibly disingenuous, none of which justifies
relief under Rule 60(b)(6). Nor have Defendants pointed to any case establishing that
the belated production of the Form 2082s and IG Report, in the face of court-ordered
sanctions, provides any basis for the court, in its discretion, to essentially vacate the
March 28, 2013 D&O, thereby nullifying the sanctions, and the court’s research has
revealed none. As the purpose of discovery sanctions is, inter alia, to deter future
discovery misconduct, Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures
Corp., 602 F.2d 1062, 1068 (2d Cir. 1979) (affirming district court’s imposition of
discovery sanctions as necessary to uphold the deterrence principle of such sanctions),
the court declines to dilute such deterrence by condoning Defendants’ unexcused
indifference to Plaintiff’s unambiguous and valid discovery requests. See Southern
New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 149 (2d Cir. 2010)
(holding district court did not abuse discretion in continuing to impose discovery
sanctions against party who belatedly complied with discovery after sanctions were
imposed). Nor is the disconnect between the relative alacrity with which the requested
information was produced after the March 28, 2013 D&O and Defendants’ inability to
locate the same information during the preceding 22 months explained by Defendants’
previous counsel, A.A.G. Murphy. Moreover, it is not credible that DOCCS personnel
were unaware that Form 2082s were archived at the facility were they were filed.
Accordingly, Defendants’ Motion for Reconsideration is DENIED.
22
Defendants are further admonished that because the IG Report they submitted is
redacted as to the identity of the confidential informant, and Defendants’ continued
failure to either disclose the names of the confidential informants who allegedly
provided the information giving rise to the claimed suspicion supporting the urinalysis
testing of Plaintiff, or an affidavit made by a DOCCS official with personal knowledge
that no such informants exists, Defendants remain non-compliant with the March 28,
2013 D&O. Nor have Defendants explained why they are unable to place in protective
custody any confidential informant who may be threatened by the revelation of his
identity, and the time in which to do so has long lapsed, or that such alleged informant
is not longer incarcerated. Defendants’ continued failure to comply with the March 28,
2013 D&O may subject Defendants to further sanctions.
Insofar as Plaintiff seeks reconsideration of the March 28, 2013 D&O and
imposition of harsher sanctions, Plaintiff likewise fails to identify any ground supporting
reconsideration under Rule 60. Furthermore, insofar as Plaintiff maintains he needs
additional discovery, including information regarding the disciplinary hearing held in
connection with inmate Gilmore’s urinalysis testing, the sanction imposed by the March
28, 2013 D&O of an adverse inference, thereby providing for the jury to be instructed
that they can draw from Defendants’ failure to timely produce the Form 2082s and the
identity of the confidential informants that such failure to comply with discovery supports
Plaintiff’s claim that Defendants had conspired to subject Plaintiff to non-random
urinalysis testing without the requisite suspicion, rendering unnecessary Plaintiff’s need
for the additional discovery. As such, Plaintiff’s Motion for Reconsideration is DENIED.
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3.
Motion to Appoint Counsel and Proceed In Forma Pauperis
Although when he commenced this action, Plaintiff paid the associated filing fee,
see January 19, 2010 Order (Doc. No. 2) (stating “plaintiff paid the filing fee”), Plaintiff
now moves to proceed in forma pauperis and for appointment of counsel. Plaintiff’s
Affidavit - Motion for Counsel ¶ 2. In support, Plaintiff explains he has only $ 50 in his
inmate account and exhausted his funds to pay the filing fee and process service fees
such that he seeks to be excused from paying any fees necessary for discovery,
including the expert fees Plaintiff anticipates needing to prove his injuries and that
Defendants engaged in the alleged systematic harassment by repeatedly subjecting
Plaintiff to urinalysis testing, without any reason to suspect Plaintiff was abusing drugs.
Id. ¶¶ 3-12. Plaintiff further maintains his claims have “extraordinary merit,” id. ¶ 13, but
will require extensive expert discovery to prove his injuries and damages and to contest
the complex issue presented by Defendants’ qualified immunity defense. Id. ¶¶ 14-24.
Plaintiff’s request to proceed in forma pauperis is addressed first. Pursuant to 28
U.S.C. § 1915, the filing fees associated with the commencement or prosecution of any
action for indigent civil litigants may be waived upon the plaintiff’s submission of an
affidavit stating the plaintiff’s assets and demonstrating an inability to pay the costs of
litigation. 28 U.S.C. § 1915(a)(1). Leave to proceed in forma pauperis is a privilege,
rather than a right, “‘provided for the benefit of indigent persons.’” Terry v. New York
City Dept. Of Corrections, 2012 WL 718555, at * 2 (S.D.N.Y. Mar. 6, 2012) (quoting
Cuoco v. U.S. Bureau of Prisons, 328 F.Supp.2d 463, 467 (S.D.N.Y. Aug. 2, 2004)).
Nevertheless, “‘ the preferable procedure for the District Court to follow is to grant leave
to proceed in forma pauperis if the requirements of 28 U.S.C. § 1915(a) are satisfied on
24
the face of the papers submitted, and dismiss the proceeding under 28 U.S.C. §
1915[e] if the court thereafter discovers that the allegation of poverty is untrue or the
action is frivolous or malicious.’” Stroble v. Oswald, 56 F.R.D. 68, 74 (W.D.N.Y. 1972)
(quoting Stiltner v. Rhay, 322 F.2d 314, 317 (9th Cir. 1963) (bracketed material added)).
Here, in his affidavit filed in support of his request for leave to proceed in forma
pauperis, Plaintiff states that, having paid the filing fee and the U.S. Marshal’s service
fees, he is no longer in possession of any funds to prosecute this action. Plaintiff’s
Affidavit - Motion for Counsel ¶ 3. Plaintiff avers he has only $ 50 in his inmate
account, which is insufficient to allow Plaintiff to retain counsel or pay for expert
witnesses. Id. ¶ 5. Plaintiff also provides a brief description of his claims and damages
resulting from Defendants’ alleged illegal actions. Id. ¶¶ 6-23. Although Plaintiff did pay
the filing fee and associated fees for service by the U.S Marshals, nothing in the record
suggests Plaintiff has repeatedly filed frivolous actions as to be barred under 28 U.S.C.
§ 1915(e) from seeking in forma pauperis status based on abuse of § 1915's privilege.
Accordingly, Plaintiff’s Motion for Counsel is GRANTED insofar as Plaintiff seeks to
proceed in forma pauperis.
With regard to Plaintiff’s request for appointment of counsel, there is no
constitutional rights to appointment of counsel for litigants in civil cases. Cooper v. A.
Sargenti Co., 877 F.2d 170, 172-74 (2d Cir. 1989). District courts, nevertheless, have
“[b]road discretion . . . in deciding whether to appoint counsel.” Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986). See also 28 U.S.C. § 1915(e)(1) (providing
district courts may “request an attorney to represent any person unable to afford
counsel.”). In considering a motion for appointment of counsel, a district court “should
25
first determine whether the indigent’s position [is] likely to be of substance.” Cooper,
877 F.2d at 172 (internal quotation marks omitted). Upon satisfying this threshold
requirement, the district court considers secondary factors, including the “plaintiff’s
ability to obtain representation independently, and his ability to handle the case without
assistance in . . . light of the required factual investigation, the complexity of the legal
issues, and the need for expertly conducted cross-examination to test veracity.” Id. No
single factor is controlling in a particular case; rather, “each case must be decided on its
own facts.” Hodge, 802 F.2d at 61.
The court’s first inquiry is whether Plaintiff can afford to obtain counsel. Termite
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (before the court is
required to make any other determination on a motion for appointment of counsel, the
court “must ascertain whether the litigant is able to afford or otherwise obtain counsel.”).
The same indigence factors supporting in forma pauperis status will also establish
indigence for appointment of counsel. See Thomas v. Kelly, 2007 WL 958533, at * 1
(S.D.N.Y. Mar. 28, 2007) (“The indigence requirement is met insofar as the same
factors considered in granting [plaintiff] permission to proceed in forma pauperis
establish [plaintiff’s] inability to afford counsel.”). In the instant case, having granted
Plaintiff’s request for permission to proceed in forma pauperis, Discussion, supra, at 2425, Plaintiff is also indigent for purposes of qualifying for appointment of counsel.
With regard to the substance and complexity of the instant action, there is merit
to Plaintiff’s allegations that Defendants conspired to repeatedly subject Plaintiff to
urinalysis testing, based on asserted suspicion, merely to retaliate against Plaintiff for
complaining about such testing, especially given the embarrassment and humiliation
26
from which Plaintiff alleges he suffered each time he was forced to urinate in front of a
prison official. The merits of Plaintiff’s allegations are underscored by Defendants’
refusal to reveal the identity of the confidential informants who allegedly provided the
information giving rise to the suspicion for the urinalysis testing Plaintiff challenges.
Under these circumstances, Plaintiff’s request for appointment of counsel is GRANTED.
A separate order appointing such counsel will be contemporaneously filed.
4.
Second Motion to Compel
Plaintiff moves to compel all items the IG Report references as attached, yet
which were omitted from the redacted copy of the IG Report Defendants produced to
Plaintiff pursuant to the March 28, 2013 D&O. Plaintiff’s Declaration - Second Motion to
Compel ¶ 3. The IG Report pertains to the DOCCS Inspector General’s investigation of
anonymous death threats made against Plaintiff in November 2008. Id. According to
Plaintiff, he was unaware until Defendants’ recent disclosure of the additional items
attached to the IG Report, but upon learning of the documents, requested them by letter
to A.A.G. Sleight dated April 15, 2013 (“April 15, 2013 Letter”),10 which request Sleight
refused by letter dated April 25, 2013 (“April 25, 2013 Letter”).11 Id. ¶¶ 5-7. In addition
to the documents referenced within the IG Report, Plaintiff requested A.A.G. Sleight
provide the identity of the author of the anonymous death threats against Plaintiff as
well as copies of any disciplinary reports and sanctions incurred by the death threats’
10
Attached as Exhibit 1 to Plaintiff’s Declaration - Second Motion to Compel.
11
Attached as Exhibit 2 to Plaintiff’s Declaration - Second Motion to Compel.
27
author. April 15, 2013 Letter at 1. According to Plaintiff, although discovery had
closed, because Plaintiff was unaware of the existence of the newly requested
information until he received the redacted copy of the IG Report, Plaintiff’s request for
such discovery should be honored. Id. Sleight responded that he regarded “with irony”
Plaintiff’s belated request for such discovery given Plaintiff’s “vehement opposition” to
Defendants’ request to amend the Scheduling Order. April 25, 2013 Letter at 1. Sleight
further stated Defendants were opposed to producing the newly requested information
because disclosing the identity of “confidential informants poses a serious risk to the
safety and well being of those individuals.” Id.
It is basic that the IG Report was comprised not only of the single page entitled
“Investigative Report,” but also those documents incorporated by reference, including
“Items” 2, 3, 22, 23, 24, 25, and 26. See, e.g., In re Bank of America Corp. Securities,
Derivative and Employment Retirement Income Security Act (ERISA) Litigation, 258
F.R.D. 260, 266 (S.D.N.Y. 2009) (considering, in connection with investors’ derivative
action alleging financial entity’s true financial condition was not fully disclosed, proxy
statement announcing terms of merger to consist of proxy statement as well as all
documents incorporated by reference). As such, the March 28, 2013 D&O’s direction
that Defendants were to produce the IG Report necessarily included Items 2, 3, 22, 23,
24, 25, and 26, and Defendants are not in compliance with the March 28, 2013 D&O
until those items are produced to Plaintiff. Any concern that revealing the name of the
inmate who authored the anonymous death threat against Plaintiff can be addressed by
placing such inmate in protective custody, if necessary. Plaintiff’s Second Motion to
Compel Discovery is GRANTED as to the request for the identity of the anonymous
28
death threat author, and Items 2, 3, 22, 23, 24, 25, and 26 incorporated by reference
into the IG Report.
As to Plaintiff’s further requests for copies of any disciplinary records and
sanctions incurred by the anonymous death threat author, Plaintiff has not established
how such information would be relevant to the instant action. Accordingly, such request
is DENIED.
CONCLUSION
Based on the foregoing, Defendants’ Motion to Amend (Doc. No. 55) is DENIED;
Defendants’ Motion for Reconsideration (Doc. No. 62) is DENIED; Plaintiff’s Request
for Reconsideration (Doc. No. 66) is DENIED; Plaintiff’s Motion to Proceed In Forma
Pauperis and for Appointment of Counsel (Doc. No. 67) is GRANTED; Plaintiff’s
Second Motion to Compel (Doc. No. 72) is GRANTED in part and DENIED in part.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
June 20, 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).
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