Brown v. Department of Correctional Services of New York State et al

Filing 69

DECISION and ORDER granting in part and denying in part 33 Motion to Amend or Correct; granting in part and denying in part and decision reserved in part 50 Motion to Compel. Signed by Hon. Leslie G. Foschio on 6/2/2011. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GENEO BROWN,
DECISION
and
ORDER

Plaintiff,
v.
DEPARTMENT OF CORRECTIONAL SERVICES,
NYS OFFICE OF MENTAL HEALTH,
BRIAN FISCHER, Commissioner,
LUCIEN J. LeCLAIRE, Dep. Com. of Corr.,
DAVID NAPOLI, Superintendent Southport C.F.,
MARSHAL TRABOUT, R.M.D.,
MARILYN BRIDGE, DSA of Southport C.F.,
DR. JOSEPH HALUSKA,
J. ANTONSEN, Dep. Supt. of Health Services,
HENDERSON, N.A.,
DAVID CHAPMAN, Corr. Sgt.,
C.O. GILBOY,
CORR. OFFICER DEBURGOMASTER, and
ESCROW, Hearing Officer,

09-CV-00949S(F)

Defendants.

APPEARANCES:

GENEO BROWN, Pro Se
97-A-0463
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821-0051
ERIC T. SCHNEIDERMAN
Attorney General, State of New York
Attorney for Defendants
KIM S. MURPHY
Assistant New York Attorney General, of Counsel
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202

1

JURISDICTION
This case was referred to the undersigned by Honorable William M. Skretny on
July 19, 2010, for all nondispositive pretrial matters. The matter is presently before the
court on Plaintiff’s motions to amend the Complaint (Doc. No. 33), filed October 12,
2010, and to compel discover (Doc. No. 50), filed February 3, 2011.

BACKGROUND
Plaintiff Geneo Brown (“Plaintiff” or “Brown”), proceeding pro se, commenced
this civil rights action on November 4, 2009, while incarcerated at Shawangunk
Correctional Facility (“Shawangunk”). Defendants to this action include New York State
Department of Correctional Services (“DOCS”), New York State Office of Mental Health
(“OMH”), and various current or former DOCS employees, including DOCS
Commissioner Brian Fischer (“Fischer”), DOCS Deputy Commissioner Lucien J.
LeClaire (“LeClaire”), Southport Correctional Facility (“Southport”) Superintendent David
Napoli (“Napoli”), DOCS Regional Medical Director Marshal Trabout, M.D. (“Dr.
Trabout”), Southport Deputy Superintendent of Administration Marilyn Bridge (“Bridge”),
Joseph Haluska, M.D. (“Dr. Haluska”), Deputy Superintendent of Health Services J.
Antonsen (“Antonsen”), Nursing Administrator Henderson (“Henderson”), Correctional
Sergeant David Chapman (“Chapman”), Correctional Officer (“C.O.”) Gilboy (“Gilboy”),
C.O. Deburgomaster (“Deburgomaster”), and Hearing Officer Esgrow (“Esgrow”)1
(together, “Defendants”). All Defendants have been served and have appeared in this

1

Plaintiff m isspells Esgrow’s nam e in the Com plaint as “Escrow.”
2

action.
Plaintiff asserts four claims for relief alleging violations of his constitutional rights
including violations of 42 U.S.C. §§ 1983, 1985, 1986, the First Amendment right to
seek redress of grievances and to exercise his religion, the Eighth Amendment right to
be free from cruel and unusual punishment, denial of due process under the Fifth and
Fourteenth Amendments, and conspiracy to deny Plaintiff equal protection. An order
filed March 25, 2010 (Doc. No. 3) (“March 25, 2010 Order”), dismissed with prejudice
that portion of Plaintiff’s First Claim alleging the filing of a false misbehavior report by
Chapman, Deburgomaster, and Gilboy, Plaintiff’s claims for monetary damages against
the individual defendants in their official capacities, that portion of Plaintiff’s Fourth
Claim against DOCS and OMH under 42 U.S.C. § 1985-1986, and all claims alleging
violations of Plaintiff’s First Amendment right to free exercise of his religion and
violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §
2000cc (“RLUIPA”). March 25, 2010 Order at 19.
On October 12, 2010, Plaintiff filed a motion to amend the Complaint (Doc. No.
33) (“Plaintiff’s Motion to Amend”), supported by the attached Affirmation/Affidavit in
Support of Motion (Fed.R.Civ.P. § 15(a)) (“Plaintiff’s Affirmation Supporting
Amendment”), and a copy of the proposed Amended Complaint (Doc. No. 33-1)
(“Proposed Amended Complaint”). Plaintiff seeks to amend the Complaint to add four
claims for relief, including (1) Defendants withheld from Plaintiff good time credits to
retaliate against Plaintiff, in violation of the First and Fourteenth Amendments
(“Proposed Fifth Claim”); (2) common law tort claims for assault and battery, abuse of
process, medical malpractice, negligence, and fraud (“Proposed Sixth Claim”); (3)
3

religious discrimination based on interference with Plaintiff’s kosher diet in violation of
the First, Fourth, Eighth, and Fourteenth Amendments and 42 U.S.C. § 1981
(“Proposed Seventh Claim”); and (4) conspiracy to have Plaintiff force-fed, in violation
of 42 U.S.C. §§ 1981, 1983, 1985, and 1986 (“Proposed Eighth Claim”). On December
2, 2010, Defendants filed Defendants’ Memorandum of Law in Opposition to Plaintiff’s
Motion to Amend (Doc. No. 40) (“Defendants’ Memorandum Opposing Amendment”).
In further support of Plaintiff’s Motion to Amend, Plaintiff filed on December 20, 2010,
Plaintiff’s Reply to Defendants Response Memorandum of Law in Opposition (Doc. No.
45) (“Plaintiff’s Reply Supporting Amendment”), with exhibits A through F (“Plaintiff’s
Amendment Exh(s). __”).
On February 3, 2011, Plaintiff filed a motion to compel (Doc. No. 50) (“Plaintiff’s
Motion to Compel”), supported by the attached Affidavit in Support of Motion to Compel
(Fed.R.Civ.P. 37) (“Plaintiff’s Affidavit Supporting Discovery”), and exhibits (“Plaintiff’s
Discovery Exhibits”). On February 23, 2011, Defendants filed in opposition to Plaintiff’s
Motion to compel the Declaration of Assistant Attorney General Kim S. Murphy (Doc.
No. 59) (“Murphy Declaration”), with attached exhibits A and B (Murphy Declaration
Exh(s). __”). On March 7, 2011, Plaintiff filed in further support of Plaintiff’s Motion to
Compel Plaintiff’s Reply Affirmation (Doc. No. 62) (“Plaintiff’s Reply Supporting
Discovery”). Oral argument was deemed unnecessary.
Based on the following, Plaintiff’s motion to amend is DENIED in part and
GRANTED in part; Plaintiff’s motion to compel is DISMISSED as moot in part,
GRANTED in part, and decision is RESERVED in part.

4

FACTS2
On November 9, 2007, Plaintiff was transferred from Auburn Correctional Facility
to Southport Correctional Facility (“Southport” or “the correctional facility”). After being
processed at Southport, Plaintiff was provided with a jumpsuit into which Plaintiff was to
change and then report to OMH. According to Plaintiff, when he complained that the
jumpsuit was too small and requested a larger size, Defendants Chapman,
Deburgomaster, and Gilboy assaulted Plaintiff and then subjected Plaintiff to a false
misbehavior report in connection with the assault (“the misbehavior report”). Plaintiff
maintains that after the November 9, 2007 incident, he was placed on B-Block, 3
Company, 1 cell, where Plaintiff was denied meals, prompting Plaintiff to declare
himself on a hunger strike on November 13, 2007. On November 16, 2007, Plaintiff
prepared a statement declaring his reasons for the hunger strike, including the alleged
November 9, 2007 assault, threats by corrections officers, and the filing of the
misbehavior report.
On November 19, 2007, Plaintiff was interviewed by Defendants Deputy
Superintendent of Administration Bridge and a psychologist regarding Plaintiff’s hunger
strike, transferred to the correctional facility’s infirmary, and served with an order to
show cause and petition filed by Defendant Southport Superintendent Napoli in state
court seeking an order allowing DOCS to force-feed Plaintiff and to allow Plaintiff’s
blood to be drawn for testing to ascertain whether a proper level of electrolytes was
maintained throughout Plaintiff’s hunger strike. The order to show cause was

2

Taken from the pleadings and m otion papers filed in this action.
5

supported by affidavits prepared by Defendants Napoli, Dr. Haluska, DOCS Regional
Medical Director Dr. Trabout, and Bridge. Plaintiff maintains the order to show cause
was filed to retaliate against Plaintiff for filing inmate grievances and for exercising his
religion, and that Plaintiff was not necessarily on a “hunger strike,” but was fasting to
protest Defendants’ alleged deprivation of his religious rights.
On November 29, 2007, Plaintiff attended a hearing on the order to show cause
in state court (“Show Cause Hearing”), subsequent to which an order (“the court order”)
was issued permitting DOCS to force-feed Plaintiff. In accordance with DOCS Directive
# 4309, Defendants DOCS Commissioner Fischer, and Deputy DOCS Commissioner
LeClaire were provided with regular updates regarding the force-feeding of Plaintiff. On
December 6, 2007, Plaintiff agreed to eat and to allow his blood to be drawn and tested
by DOCS medical staff to ascertain the electrolytes level, and Plaintiff was released
from the infirmary.
On December 27, 2007, Plaintiff was again transferred to the correctional
facility’s infirmary and held in isolation where Plaintiff maintains he was subjected to
repeated harassment by the medical staff, including unnecessary monitoring of
Plaintiff’s weight and vital signs which was permitted under the court order, but which
Plaintiff asserts was not then necessary because Plaintiff had discontinued his hunger
strike and resumed eating. Plaintiff maintains the transfer back to the infirmary was
intended to isolate and separate Plaintiff from his legal work and to retaliate against
Plaintiff for commencing another legal action.
On March 19, 2008, Plaintiff filed inmate grievance # SPT-43500-08 (“the Inmate
Grievance”), complaining that the toilet, water, and lights in Plaintiff’s prison cell had not
6

functioned since March 14, 2008, that he was assaulted by several unidentified
corrections officers on January 18, 2008 while returning from the shower to his cell, and
that on January 28, 2008, while Plaintiff was showering, Defendant Chapman made
verbal threats to Plaintiff regarding a written complaint made by Plaintiff pertaining to
the January 18, 2008 assault. On March 21, 2008, Defendant Chapman moved
Plaintiff to a different area of the correctional facility, a move which Plaintiff maintains
was to retaliate against Plaintiff for filing the Inmate Grievance on March 19, 2008.
Plaintiff maintains that while being escorted to his new cell, he was assaulted by
Chapman and several other corrections officers.
On April 24, 2008, to protest the January 18, 2008 assault, the January 28, 2008
threat, the five-day deprivation of a toilet, water and lights in his cell, and the March 21,
2008 assault, Plaintiff commenced a second hunger strike and was transferred to the
infirmary where Plaintiff was force-fed. Plaintiff explained to Defendant Bridge, DOCS
medical staff and OMH staff that Plaintiff’s hunger-strike was actually a religious
expression of fasting to protest the alleged assaults and mistreatment, and that he
voluntarily consumed water, but the force-feeding continued. On August 6, 2008,
Plaintiff was transferred to University Hospital in Syracuse for insertion of a “PEG tube”3
pursuant to a request by Dr. Trabout. On August 7, 2008, Plaintiff was transferred to
Walsh Regional Medical Unit (“Walsh RMU”), at Mohawk Correctional Facility in Rome,
New York, where he was force-fed through the PEG tube until August 11, 2008, when
Plaintiff was re-assigned to Kosher (Alternative) Meal Status and discontinued his

3

A percutaneous endoscopic gastronom y tube or “PEG tube” is a tube inserted through the skin,
guided and placed with the aid of a cam era, into the stom ach to perm it feeding.
7

hunger strike, but remained in Walsh RMU.
On August 20, 2008, the physician who inserted Plaintiff’s PEG tube refused to
remove it, but stated he would reconsider whether to remove Plaintiff’s PEG tube in four
months. Plaintiff complained that he was being denied his Kosher Cold Alternative Diet
(“CAD”) meals and, on December 15, 2008, Defendant Nurse Administrator Henderson
spoke with Plaintiff about the alleged denial of his CAD meals. Plaintiff filed a
grievance regarding the denial of his CAD meals, which was denied. Despite the fact
that Plaintiff did not engage in any further hunger strikes after resuming eating on
August 11, 2008, Plaintiff remained at Walsh RMU until April or May 2009, when the
PEG tube was removed and Plaintiff was transferred to Shawangunk Correctional
Facility on May 20, 2009.

DISCUSSION
1.

Motion to Amend
Plaintiff seeks to amend the Complaint to add four claims for relief, including (1)

Defendants withheld from Plaintiff good time credits to retaliate against Plaintiff, in
violation of the First and Fourteenth Amendments (“Proposed Fifth Claim”); (2) common
law tort claims for assault and battery, abuse of process, medical malpractice,
negligence, and fraud (“Proposed Sixth Claim”); (3) religious discrimination based on
interference with Plaintiff’s kosher diet in violation of the First, Fourth, Eighth, and
Fourteenth Amendments and 42 U.S.C. § 1981 (“Proposed Seventh Claim”); and (4)
conspiracy to have Plaintiff force-fed, in violation of 42 U.S.C. §§ 1981, 1985, and 1986
(“Proposed Eighth Claim”). Defendants maintain the four proposed new claims should
8

be denied as futile. Defendant’s Memorandum Opposing Amendment at 3.
Fed.R.Civ.P. 15 provides that leave to amend a pleading “shall be freely granted
when justice so requires.” An amended complaint may be filed pursuant to
Fed.R.Civ.P. 15(a) where the new allegations do not unduly prejudice an opponent, are
not the result of undue delay or bad faith, and are not futile. Foman v. Davis, 371 U.S.
178, 181 (1962). Absent a showing that significant additional discovery burdens will be
incurred or that the trial of the matter will be significantly delayed, amendment should
be permitted. Block v. First Blood Associates, 988 F. 2d 344, 350 (2d Cir. 1993).
Where a requested pleading amendment is futile, "it is not an abuse of discretion
to deny leave to amend" to the moving party. Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir.1993). See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106
F.3d 11, 18 (2d Cir. 1997) (“Leave to amend need not be granted . . . where the
proposed amendment would be futile.”) (internal citation and quotation marks omitted).
A determination that a proposed claim is futile is made under the same standards that
govern a motion to dismiss under Rule 12(b)(6). A.V. By Versace, Inc. v. Gianni
Versace, S.p.A., 160 F.Supp.2d 657, 666 (S.D.N.Y.2001). “A proposed amendment to
a pleading would be futile if it could not withstand a motion to dismiss pursuant to Rule
12(b)(6).” Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d
Cir. 2003). See Jones v. New York Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d
Cir. 1999) (holding an amendment is futile "if the proposed amended complaint would
be subject to 'immediate dismissal' for failure to state a claim or on some other
ground.").
Further, although a motion to amend a complaint brought pursuant to Fed. R.
9

Civ. P. 15(a) provides that leave to file an amended complaint “shall be freely given,”
this standard “must be balanced against the requirement under Rule 16(b) that the
Court’s scheduling order ‘shall not be modified except upon a showing of good cause.’”
Grochowski v. Phoenix Construction, 318 F.3d 80, 86 (2d Cir. 2003) (quoting Fed. R.
Civ. P. 15(a) and 16(b)). See Carnrite v. Granada Hospital Group, Inc., 175 F.R.D. 439,
447 (W.D.N.Y. 1997) (a Rule 16(b) scheduling order “shall not be modified except upon
a showing of good cause”). Here, however, Plaintiff’s Motion to Amend was filed on
October 12, 2010, well before the January 14, 2011 deadline for moving to amend set
forth in the October 12, 2010 Scheduling Order (Doc. No. 32). As such, Plaintiff’s
Motion to Amend was timely filed in accordance with the Scheduling Order which need
not be amended upon a showing of good cause, and the court considers whether
Plaintiff’s proposed claims could withstand a motion to dismiss pursuant to Rule
12(b)(6) such that the claims are not futile.
On a motion to dismiss under Rule 12(b)(6), two recent Supreme Court cases
require application of “a ‘plausibility standard,’ which is guided by ‘[t]wo working
principles.’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and quoting Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct.
1937, 1949 (2009)). “First, although ‘a court must accept as true all of the allegations
contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’” Harris, 572 F.3d at 72 (quoting Iqbal, 129 S.Ct.
at 1949). “‘Second, only a complaint that states a plausible claim for relief survives a
motion to dismiss,’ and ‘[d]etermining whether a complaint states a plausible claim for
10

relief will . . . be a context-specific task that requires the review court to draw on its
judicial experience and common sense.’” Id. (quoting Iqbal, 129 S.Ct. at 1950).
Despite Twombly, courts remain obligated to liberally construe a pro se complaint.
Harris, 572 F.3d at 72 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 570). As such, the court considers whether Plaintiff’s proposed
new claims are sufficiently plausible to survive a motion to dismiss and are not futile.

A.

Proposed Fifth Claim

In particular, insofar as Plaintiff seeks to assert the Proposed Fifth Claim alleging
a loss of good time credits, Plaintiff maintains that on December 11, 2007, Southport’s
Time Allowance Committee (“TAC”) served Plaintiff with notice advising Plaintiff to
appear at a Time Allowance Hearing to determine whether a portion or all of Plaintiff’s
good time allowance should be withheld. At the hearing, held on December 28, 2007,
Plaintiff explained to TAC Chairman J. Colvin (“Colvin”) that Plaintiff’s OMH records
were incomplete and contained erroneous information, that Plaintiff’s hearing assistant,
Corrections Counselor Sandra Hess (“Hess”), failed to retrieve several documents
Plaintiff requested for use in the hearing, and that Plaintiff was denied the opportunity to
present documented OMH evidence and confidential testimony. Following the hearing,
the TAC issued a written report recommending all of Plaintiff’s good time credits,
totaling six years, be withheld based on Plaintiff’s overall poor disciplinary history and
Plaintiff’s failure to complete Aggression Replacement Treatment (“ART”). The TAC’s
11

recommendation was affirmed by Defendant Napoli on January 2, 2008, and DOCS
Director of Special Housing Unit (“SHU”) Donald Selsky (“Selsky”), affirmed the decision
on January 11, 2008 (“the TAC Decision”). Plaintiff seeks to sue as Defendants to the
Proposed Fifth Claim Colvin, Napoli, and SHU Director Selsky.
Defendants argue the Proposed Fifth Claim is futile because a determination in
Plaintiff’s favor on this claim would necessarily imply that invalidity of the TAC Decision
to withhold Plaintiff’s good time credits. Defendants’ Memorandum Opposing
Amendment at 5-6. Plaintiff has not proffered any argument in further support of his
Proposed Fifth Claim.
Insofar as Plaintiff is seeking restoration of his good-time credits, the sole
remedy for such request is a writ of habeas corpus. Edwards v. Balisok, 520 U.S. 641,
643-44 (1997) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding the sole
remedy in federal court for a prisoner seeking restoration of good-time credits is a writ
of habeas corpus)). As such, Plaintiff’s request to amend the Complaint to seek
restoration of his good-time credits is futile.
Furthermore, Plaintiff’s proposed assertion that the procedures at the Time
Allowance Hearing deprived Plaintiff of due process in violation of the Fourteenth
Amendment is also futile. Specifically, § 1983 claims challenging the procedures
employed at a disciplinary hearing, including a Time Allowance Hearing challenged
here, are subject to the same limitations announced in Heck v. Humphrey, 512 U.S.
477 (1994). Edwards, 520 U.S. at 646. As relevant, in Heck, the Supreme Court held
that where the nature of the procedural challenge would, if successful, necessarily imply
the invalidity of the resulting judgment, no claim under § 1983 can proceed until and
12

unless the judgment is overturned. Heck, 512 U.S. at 486 (“the hoary principle that civil
tort actions are not appropriate vehicles for challenging the validity of outstanding
criminal judgments applies to § 1983 damages actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always
applied to actions for malicious prosecution.”).
As relevant to the instant case, in Edwards, the Supreme Court extended Heck
to claims challenging the procedures used in a prison disciplinary hearing resulting in a
deprivation of an inmate’s good-time credits. Edwards, 520 U.S. at 644-46. With
regard to the instant case, ”[t]he principal procedural defect complained of would, if
established, necessarily imply the invalidity of the deprivation of [Plaintiff’s] good-time
credits,” the claim is barred until and unless Plaintiff proves the challenged sentence,
here, the withholding of six years of good-time credits, has been overturned in a habeas
corpus proceeding. Edwards, 520 U.S. at 646. Plaintiff’s proposed allegations in
support of his denial of due process claim in connection with the Time Allowance
Hearing include that his prison disciplinary hearing record before TAC Chairman Colvin
both contained erroneous information, and was incomplete because Hess, Plaintiff’s
hearing assistant, failed to retrieve several requested by Plaintiff and that Plaintiff was
denied the opportunity to present documented OMH evidence and confidential
testimony.
Because a prison inmate’s statutory good-time credits are a protected liberty
interest, any prison disciplinary hearing at which the determination is made to deprive
the inmate of such credits must comport with constitutional due process of law.
Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (citing Ponte v. Real, 471
13

U.S. 491, 495 (1985)). At issue in Kingsley was a prisoner’s petition for writ of habeas
corpus seeking reinstatement of good-time credit revoked following a disciplinary
hearing at which the inmate plaintiff was arbitrarily denied the right to present evidence,
including witness testimony. Kingsley, 937 F.2d at 27. “These due process safeguards
include the right to call and present witnesses in [Plaintiff’s] defense.” Kingsley, 937
F.2d at 30 (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). A prisoner’s right to call
witnesses and present evidence in disciplinary hearings may be denied if permitting the
prisoner’s request “would be unduly hazardous to institutional safety or correctional
goals,” or if the requested evidence would be irrelevant or unnecessary. Id. (internal
citations omitted). Nevertheless, “[t]he burden is not upon the inmate to prove the
official’s conduct was arbitrary and capricious, but upon the official to prove the
rationality of the position.” Id. at 30-31. Moreover, where the disciplinary hearing
decision, notwithstanding the plaintiff’s success on an evidentiary challenge, is still
supported by “some evidence” of the inmate’s guilt, the plaintiff’s success on the
evidentiary challenge would not necessarily imply the invalidity of the conviction, such
that the plaintiff would not be required to first obtain, through a habeas proceeding, a
decision reinstating the good-time credits. Edwards, 520 U.S. at 648.
In the instant case, Plaintiff’s factual allegations in support of the Proposed Fifth
Claim include that TAC Chairman Colvin’s decision to revoke Plaintiff’s six years of
good-time credits was supported not only by the nature of the incidents at issue in this
action, but also Plaintiff’s “overall poor disciplinary history” and Plaintiff’s “failure to
complete the ‘Aggression Replacement Treatment.’” Proposed Fifth Claim, Proposed
Amended Complaint ¶ 9. As such, even if Plaintiff were to succeed in establishing that
14

he was denied the opportunity to present at the Time Allowance Hearing evidence
favorable to Plaintiff, other evidence in the record, including Plaintiff’s DOCS
disciplinary record pertaining to other disciplinary incidents involving Plaintiff, as well as
references to Plaintiff’s acceptance into, and failure to complete Anger Replacement
Treatment, an anger management program, may qualify as “some evidence” to support
the decision to revoke Plaintiff’s good-time credits, an issue not resolvable on the
instant motion and, thus, would not necessarily imply the invalidity of the TAC Decision
revoking Plaintiff’s good time credits. In such case, Plaintiff would not be required to
have the TAC Decision overturned prior to bringing this claim, but could seek to recover
under § 1983 at least nominal damages for the deprivation of constitutional due
process.
Accordingly, Plaintiff’s Proposed Fifth Claim alleging deprivation of due process
with regard to the procedures employed during Plaintiff’s Time Allowance Hearing is not
futile.
Plaintiff’s Motion to Amend to add the Proposed Fifth Claim is DENIED insofar
as Plaintiff seeks reinstatement of his good time credits, but is GRANTED as regards
Plaintiff’s challenge that the procedure by which his good-time credits were revoked
failed to comport with constitutional due process requirements.

B.

Proposed Sixth Claim

Plaintiff seeks to add a Sixth Claim asserting numerous Defendants and
proposed defendants committed state common law torts including assault and battery
and negligence by Defendants Chapman, Deburgomaster, Gilboy, and Esgrow, based
15

on the incidents alleged in connection with the First Claim, abuse of process, medical
negligence, malpractice, and fraud by proposed defendants Bill Vertowski and Denise
Fuller based on incidents alleged with regard to the Second and Third Claims,
negligence against proposed defendants Colvin and Selsky as to the incidents asserted
in the Proposed Fifth Claim, and medical negligence and negligent supervision against
Defendants Antonsen and Henderson with regard to the allegations of the Second
Claim. In opposing the Proposed Sixth Claim, Defendants assert that because all
Defendants and proposed defendants are DOCS employees, they are immune from
liability for such claims based on New York Corrections Law (“N.Y. Corr. Law”)4 § 24 (“§
24"). Defendants’ Memorandum Opposing Amendment at 7-11. In further support of
the Motion to Amend, Plaintiff argues that the Supreme Court has ruled § 24
unconstitutional. Plaintiff’s Reply Supporting Amendment at 8-10.
As relevant, New York Corrections Law § 24 provides
1.

No civil action shall be brought in any court of the state, except by the
attorney general on behalf of the state, against any officer or employee of
the department, in his personal capacity, for damages arising out of any
act done or the failure to perform any act within the scope of the
employment and in the discharge of the duties by such officer or
employee.

2.

Any claim for damages arising out of any act done or the failure to
perform any act within the scope of the employment and in the discharge
of the duties of any officer or employee of the department shall be brought
and maintained in the court of claims as a claim against the state.

N.Y. Corr. Law § 24[1] and [2].
In other words, exclusive jurisdiction for the New York common law claims Plaintiff

4

References to N.Y. Corr. Law are to McKinney’s 2003.
16

seeks to add lies in the New York Court of Claims as a claim against New York.
Plaintiff maintains that the Supreme Court has recently held § 24
unconstitutional. Plaintiff’s Reply Supporting Amendment at 8-10 (citing Haywood v.
Drown, __ U.S. __, 129 S.Ct. 2108 (2009). In Haywood, the Supreme Court held that
§ 24 violates the Supremacy Clause of the United States Constitution, stating “having
made the decision to create courts of general jurisdiction that regularly sit to entertain
analogous suits, New York is not at liberty to shut the courthouse door to federal claims
that it considers at odds with its local policy.” Haywood, 129 S.Ct. at 2117. Although
the Supreme Court held § 24 unconstitutional insofar as it barred federal § 1983 claims
in state court, the issue in the instant case, i.e., whether § 24 precludes Plaintiff’s
proposed New York common law claims in this court, was not before the Supreme
Court in Haywood and, thus, was not addressed.
Moreover, the Second Circuit has held that the immunity from suit in state court
provided to DOCS employees by § 24 extends to suits for tort claims based on state
law against DOCS employees in federal court. Baker v. Coughlin, 77 F.3d 12, 14 (2d
Cir. 1996). The Second Circuit determined that “by its plain terms, § 24 governs the
substantive rights of corrections officers by conferring upon them an immunity from
liability for activities that fall within the scope of the statute,” and corrections officers
“are entitled to invoke the benefits of § 24 irrespective of the forum in which [the
plaintiff] chooses to pursue [his] claims.” Id. at 15-16. Accordingly, where state claims
would have been dismissed pursuant to § 24 by a New York court, the district court
must also dismiss such claims. Id. at 16.
As such, because Defendants would be entitled to immunity under § 24 on
17

Plaintiff’s proposed New York common law claims in state court, Defendants are
likewise entitled to that same immunity in this court. Baker, 77 F.3d at 16. Plaintiff’s
Proposed Sixth Claim is thus futile and Plaintiff’s Motion to Amend to assert the claim is
DENIED.

C.

Proposed Seventh Claim

Plaintiff’s Proposed Seventh Claim asserts all Defendants violated 42 U.S.C. §
1981, by discriminating against Plaintiff based on the fact that Plaintiff is an AfricanAmerican Jew and an African-American qualified person with a disability, in violation of
Plaintiff’s rights under the First, Fourth, Eighth and Fourteenth Amendments. Proposed
Amended Complaint, Proposed Seventh Claim ¶ 1. In support of this claim, Plaintiff
asserts that Defendants Antonsen and Henderson denied and withheld Plaintiff’s
kosher CAD meals from Plaintiff while Plaintiff was being held in isolation in Walsh
RMU and force-fed. Id. ¶ 2. Defendants oppose the Proposed Seventh Claim on the
basis that the March 25, 2010 Order dismissed with prejudice all of Plaintiff’s claims
alleging violations the First Amendment and the RLUIPA concerning Plaintiff’s kosher
diet, arguing that Plaintiff cannot attempt to reinstate such claims by alleging religious
discrimination on the basis that he is an African-American Jew. Defendants’
Memorandum Opposing Amendment at 10. Defendants also assert that no relief is
available to Plaintiff under § 1981 which prohibits discrimination with regard to a
contractual relationship, which is absent in the instant case. Id. at 10-11. Finally,
Defendants argue that insofar as Plaintiff asserts a claim based on being an “AfricanAmerican Qualified Person with Disability” in connection with the denial of his kosher
18

diet while being force-fed as a result of Plaintiff’s hunger strikes, Plaintiff also fails to
state a claim under § 1981. Id. at 11.
In further support of his Proposed Seventh Claim, Plaintiff argues that the
allegations of the First, Second and Third Claims state that Defendants discriminated
against Plaintiff in violation of 42 U.S.C. § 1981, based on the fact that Plaintiff is an
African-American Jew with a disability, by subjecting Plaintiff to physical assaults, filing
false misbehavior reports against Plaintiff, causing Plaintiff to go on a hunger strike, and
then seeking to have Plaintiff force-fed during which time Plaintiff was denied his kosher
CAD meals, all to discriminate against Plaintiff based on Plaintiff’s religion and race.
Plaintiff’s Reply Supporting Amendment at 1-5.
Section § 1981 provides that “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by white
citizens. . . .” 42 U.S.C. § 1981(a). In the instant case, however, Plaintiff fails to allege
in support of his Proposed Seventh Claim that he was denied any right to contract, to
sue, to be a party to a legal action, or to give evidence in a court of law, nor does
Plaintiff specify any law or proceeding for the security of persons or property to which
he was denied the full and equal benefit. Even a liberal construction of the Proposed
Amended Complaint establishes only the absence of any factual allegations that,
broadly construed as required in light of Plaintiff’s pro se status, Haines v. Kerner, 404
U.S. 519, 520 (1972) (allegations of pro se complaint are held to less stringent
standards than formal pleadings drafted by attorneys), could support a claim under §
19

1981. As such, Plaintiff’s Motion to Amend is DENIED with regard to the Proposed
Seventh Claim.

D.

Proposed Eighth Claim

Plaintiff’s Proposed Eighth Claim asserts Defendants conspired to have Plaintiff
force-fed, in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986.5 Proposed
Amended Complaint, Proposed Eighth Claim, ¶¶ 1 and 2. According to Plaintiff,
proposed defendant Vertowski violated Plaintiff’s rights by testifying, in agreement with
other Defendants and on behalf of OMH, at the November 29, 2007 Show Cause
Hearing in support of force-feeding Plaintiff. Propose Seventh Claim ¶ 1. Plaintiff
further maintains that proposed defendant Denise Fuller violated Plaintiffs’ civil rights by
entering into an agreement with other Defendants to uphold and extend Plaintiff’s force
feeding from April 2008 through August 2008 to retaliate against Plaintiff for filing
inmate grievances and commencing other litigation against Defendants, and to
discriminate against Plaintiff based on his status as an African-American Jewish
qualified person with a disability. Id. ¶ 2.
Defendants oppose the Proposed Eighth Claim on the basis that Plaintiff makes
only conclusory assertions of racial or religious-based discrimination which are
insufficient to support a civil right conspiracy claim. Defendants’ Memorandum

5

Pursuant to 42 U.S.C. § 1985, it is illegal for any state actor to conspire to interfere with any
person’s civil rights. Under 42 U.S.C. § 1986, liability m ay be im posed on any individual who, despite
knowledge of wrongs prohibited under § 1985, fails or neglects to take any action to prevent the
com m ission of such wrongs. Accordingly, absent a violation of § 1985, there can be no violation of §
1986. Further, although Plaintiff seeks to allege in his Proposed Eighth Claim that Defendants conspired
to discrim inate against him based on his race, religion and disability, insofar as Plaintiff references 42
U.S.C. § 1983, such claim s are repetitive of Plaintiff’s First, Second, Third and Fourth Claim s.
20

Opposing Amendment at 11-13. In further support of the Proposed Eighth Claim,
Plaintiff argues that the allegations on the First, Second and Third Claims that Plaintiff
was subject to excessive force, false misbehavior reports, procedurally deficient
disciplinary hearings, and force-feeding, and the fact that Plaintiff is an AfricanAmerican Jewish qualified person with a disability sufficiently alleges race and religionbased conspiracy to discriminate claims. Plaintiff’s Reply Supporting Amendment at 68.
“It is well settled that claims of conspiracy ‘containing only conclusory, vague, or
general allegations of conspiracy to deprive a person of constitutional rights cannot
withstand a motion to dismiss.’” Gallop v. Cheney, __ F.3d __, 2011 WL 1565858 (2d
Cir. Apr. 27, 2011) (quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993)). The
failure to allege any fact corroborating a meeting of the minds among the alleged
conspirators renders a conspiracy claim baseless. Id. Here, Plaintiff has failed to
allege any fact corroborating a meeting of the minds among any of the Defendants
establishing a conspiracy to deprive Plaintiff of any constitutional rights based on his
race, religion, or unspecified disability.
With regard to his race and religion, Plaintiff argues that both people of African
ancestry and Jewish ancestry are recognized as distinct races, as well as that
numerous people of African ancestry are also of Jewish ancestry, having descended
from the lost tribe of Israel, and submits numerous exhibits in support of his assertion.
Plaintiff’s Reply Supporting Amendment at 3-4; Plaintiff’s Amendment Exh. C (excerpts
from Wikipedia article (regarding the definition of “black people” as referring “to a racial
group of humans with skin colors that range from light brown to nearly black . . . . used
21

to categorize a number of diverse populations together based on historical and
prehistorical ancestral relations” and further estimating that “Israel is home to over
5,000 members of the African Hebrew Israelites of Jerusalem movement”), and The
Original African Heritage Study Bible, King James Version, Levitcus 17:10 (discussing
Jewish prohibition against consuming blood of humans or animals), and Deuteronomy
28:64-30:19 (discussing that because after the destruction of the Temple in Jerusalem
in 70 A.D., many African Hebrews traveled south to various points in Ethiopia, Egypt,
and the west coast of Africa, many Hebraic cultural traits are directly traceable to the
tribes of West Africa, and the Ashanti people of West Africa evolved from the ancient
Hebrews); and Exh. D (excerpts from Wikipedia article regarding Black Hebrew
Israelites (discussing that although “Black Hebrew Israelites . . . are groups of people
mostly of Black African ancestry situated mainly in the United States who believe they
are descendants of the ancient Israelites . . . . [t]hey generally are not accepted as
Jews by the greater Jewish community, and many Black Hebrews consider themselves
– and not mainstream Jews – to be the only authentic descendants of the ancient
Israelites.”)). The record, however, is devoid of any evidence indicating Defendants
dispute Plaintiff is an African American Jew.
Further, Plaintiff submits an excerpt from the transcript of Dr. Trabout’s testimony
given at the Show Cause Hearing to establish that Defendants were aware that Plaintiff
refused to allow his blood to be drawn to test Plaintiff’s electrolytes balance because
Plaintiff, under Jewish law, was prohibited from giving blood. Plaintiff’s Reply

22

Supporting Amendment at 3 (citing Dr. Trabout’s Tr.6 at 15-16). In particular, Dr.
Trabout, in response to questioning, testified that he himself is Jewish, but is unaware
of any restriction in the Jewish faith against having blood drawn. Dr. Trabout’s Tr. at
15-16. Significantly, Dr. Trabout’s testimony is consistent with the portions of The
Original African Heritage Study Bible Plaintiff submitted, which establish only a
prohibition against Jews drinking the blood of another human or an animal, but do not
address the drawing of blood for medical testing purposes.
Accordingly, Plaintiff has failed to establish there is any plausibility, Iqbal, 129
S.Ct. at 1949, to his proposed claim that Defendants conspired to discriminate against
him based on his race or religion, such that Plaintiff’s proposed Eighth Claim is futile.
Nor has Plaintiff met his burden of plausibility with regard to his disability discrimination
claim under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et
seq., (“the ADA”), prohibiting a “public entity” from discriminating against a “qualified
individual with a disability” on account of that individual’s disability. Significantly, 42
U.S.C. § 12132, which applies to inmates in state prisons, Pennsylvania Dept. of
Corrections v. Yeskey, 524 U.S. 206, 208 (1998), provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” Further, “[t]he term ‘qualified individual
with a disability’ means an individual who, with or without reasonable modifications to
rules, policies, or practices, . . . meets the essential eligibility requirements for the

6

References to “Dr. Trabout’s Tr.” are to the transcript of the testim ony of Dr. Trabout given at the

Show Cause Hearing, subm itted as Plaintiff’s Exh. A .
23

receipt of services or the participation in programs or activities provided by a public
entity.” 42 U.S.C § 12131(2). Although in the instant case Plaintiff has not specified
the alleged disability as the basis for Defendants’ disability-based conspiracy
discrimination, Plaintiff submits exhibits in an attempt to establish that Defendants
considered Plaintiff under a mental disability, but a fair reading of these exhibits
demonstrates otherwise.
In particular, Plaintiff submits a Memorandum from proposed defendant
psychologist Verbowski to, inter alia, Defendants Napoli, Dr. Haluska, and Bridge, dated
November 16, 2007 (“Nov. 16, 2007 Memorandum”),7 discussing Verbowski’s findings
from a mental health evaluation of Plaintiff. According to Verbowski, Plaintiff’s OMH
service level was 6, indicating Plaintiff was not then in need of any mental health
services. November 16, 2007 Memorandum at 1. Plaintiff was evaluated in connection
with Plaintiff’s hunger strike, which Plaintiff maintains was based on “complaints [ ]
centered on perceived threats and harassment by security staff that he believes are
retaliatory in response to his past grievances, complaints, and civil litigation.” Nov. 16,
2007 Memorandum at 1. Verbowski reported that Plaintiff sought as “relief” from his
hunger strike “having his complaints addressed by DOCS Legal Counsel; an admission
that staff’s conduct toward him are retaliation and in violation of his rights; and/or a
transfer to a facility out of this current ‘hub.’” Id. Verbowski noted Plaintiff had a history
of needing mental health services in 2005, but found no correlation between Plaintiff’s
hunger strike and any mental health status or symptoms, and no mental health

7

Plaintiff’s Exh. E.
24

treatment was indicated at that time. Id. Verbowski’s recommendation based on the
evaluation was that Plaintiff’s mental status was “clear” with “no evidence of delusional
or paranoid preoccupations, disorganized or illogical thinking,” that Plaintiff’s mental
status should continue to be evaluated for the duration of his hunger strike, but that no
treatment was indicated at that time. Id. at 4.
Similarly, in a Memorandum from proposed defendant Nurse Denise Fuller to,
inter alia, Defendants Napoli, and Bridge, dated April 28, 2008 (“April 28, 2008
Memorandum”),8 Fuller reports that although Plaintiff “is not an active patient, [Plaintiff]
has been seen daily by OMH clinical staff for consultative services, as well as by Dr. V.
Satti, Psychiatrist, on April 36, 2008.” April 28, 2008 Memorandum at 1. Plaintiff’s
“mental status exams have evidenced stability in mood, thought process, and an
absence of perpetual disturbance.” Id. Fuller concludes that “[a]t present, [Plaintiff’s]
behavior appears willful and does not appear to be a symptom of mental illness.” Id.
Plaintiff’s OMH level was 6 and, as such, no treatment was recommended, although
Plaintiff was to continue to be daily monitored by both medical and OMH personnel until
Plaintiff ended his hunger strike. Id.
In a later Memorandum from Fuller dated August 5, 2008 (“Aug. 5, 2008
Memorandum”),9 Fuller reports that Plaintiff’s “weight has remained stable since the
initiation of the feeding over objection. He continues to be fed over objection to date.”
Aug. 5, 2008 Memorandum at 1. Fuller continued that Plaintiff “is not an active patient,

8

Plaintiff’s Exh. F.

9

Plaintiff’s Exh. F.
25

but continues to be assessed daily by OMH clinicians and weekly by the consulting
psychiatrist.” Id. According to Fuller, Plaintiff’s “mental status has been consistently
unremarkable in the 3 months since initiating the hunger strike.” Id. Fuller concludes
that “[a]t present, his behavior appears willful and does not appear to be a symptom of
metal illness. He is an OMH level 6. He will continue to be monitored daily by both
medical and OMH personnel, until he rescinds the hunger strike.” Id.
Because nowhere within any of these exhibits is there any indication that
Defendants considered Plaintiff to be under a mental disability, these exhibits fail to
establish that it is plausible Plaintiff could succeed on claim that Defendants conspired
to discriminate against Plaintiff based on a disability, whether actual or perceived. See
Yeskey, 524 U.S. at 208-12 (permitting inmate plaintiff to maintain ADA claim based on
his exclusion, for health reasons, from prison boot camp program, the successful
completion of which would have led to plaintiff’s early release from prison); As such,
Plaintiff’s conspiracy claims are based on only the barest conclusory allegations which
are insufficient to withstand a motion to dismiss. According, Plaintiff’s Motion to Amend
is DENIED with regard to the Proposed Eighth Claim.

2.

Motion to Compel
Plaintiff seeks to compel Defendants to produce certain documents, e-mails,

memoranda, and videotapes in response to Plaintiff’s discovery request dated August
29, 2010. In particular, Plaintiff seeks to compel production of (1) his mental health
records; (2) e-mails and “to/from” correspondence concerning DOCS staff; (3) video
tapes depicting Plaintiff being force-fed between April 2008 and August 2008, and
26

Defendants’ cell-extraction of Plaintiff in preparation to force-feed Plaintiff; (4) unusual
incident reports prepared in connection with Plaintiff’s force-feeding between April and
August 2008, and (5) copies of DOCS Directives 4301 and 4302. Plaintiff’s Affidavit
Supporting Discovery ¶¶ 6 and 9. In response, Defendants assert that Plaintiff’s mental
health records recently were obtained and were being served on Plaintiff, but would not
be electronically filed to protect Plaintiff’s privacy, Murphy Declaration ¶ 4, that all
“to/from correspondence” and non-privileged e-mails contained in Plaintiff’s medical
records have been produced, id. ¶ 5, and that all Unusual Incident Reports concerning
Plaintiff’s hunger strikes have been produced. Id. ¶ 9. Because Plaintiff does not
dispute that Defendants have produced such requested discovery, Plaintiff’s Motion to
Compel, with regard to these requests, is DISMISSED as moot, and the court
addresses only the three remaining discovery requests at issue.
As relevant, Fed.R.Civ.P. 26(b)(1) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .”
Material that is not admissible at trial nevertheless is discoverable if it “appears
reasonably calculated to lead to the discovery of admissible evidence.” Id.
“Reasonably calculated” includes “‘any possibility that the information sought may be
relevant to the subject matter of the action.’” Daval Steel Products, a Div. of
Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991) (quoting
Morse/Diesel, Inc. v. Fidelity and Deposit Co. of Maryland, 122 F.R.D. 447, 449
(S.D.N.Y. 1988) (additional quotations omitted; italics in original). There are, however,
limits to discovery, including where the requested discovery is privileged, or would be
unduly burdensome to produce. Fed.R.Civ.P. 26(b). Once the possible relevance of
27

the requested discovery is established, “‘the burden shifts to the party opposing
discovery to show the discovery is improper.’” Woodward v. Mullah, 2009 WL 4730311,
at *1 (W.D.N.Y. Dec. 4, 2009) (quoting Condit v. Dunne, 225 F.R.D. 100, 106 (S.D.N.Y.
2004)). The party’s burden in opposing discovery “requires an evidentiary showing by
competent evidence and cannot be discharged by mere conclusory or ipse dixit
assertions.” AIU Ins. Co. v. TIG Ins. Co., 2008 WL 5062030, at *9 (S.D.N.Y. Nov. 25,
2008) (quoting Abu-Nassar v. Elders Futures Inc., 1991 WL 45062, at * 15 (S.D.N.Y.
Mar. 28. 1991) (internal citations and quotation marks omitted)).
In particular, the court addresses Defendants’ assertions that (1) certain e-mail
communications between DOCS Associate Counsel Nancy Heywood (“Heywood”) and
Defendants are shielded from disclosure by the attorney-client privilege, Murphy
Declaration. ¶¶ 5-6 and Exh. A,10 (2) Plaintiff’s request for videotapes of Defendants
force-feeding Plaintiff are overly broad and unduly burdensome given that Plaintiff
neither challenges the procedures or methods by which he was force-fed, nor asserts
that such videotapes are relevant or would establish any wrong-doing by Defendants,
id. ¶ 7, and (3) Plaintiff is not entitled to a copy of DOCS Directives 4301 and 4302
because “possession of these documents would jeopardize the good order, safety and
security of the facility.” Id. ¶ 9.
Defendants assert that the attorney-client privilege shields from disclosure three
e-mail communications from DOCS Associate Counsel Nancy Heywood (“Heywood”).

10

Murphy Declaration Exh. A is Defendants’ Privilege Log listing three e-m ails from Heywood to
either Defendant Bridge or Dr. Trabout withheld from disclosure on the basis of the attorney-client
privilege.
28

Murphy Declaration ¶ 5. In support of the asserted attorney-client privilege, Defendants
submit a privilege log (“Privilege Log”)11 listing three e-mails from Heywood, including emails dated April 25, 2008 to Defendant Bridge regarding “Phase II - Hungerstrike,”
December 20, 2007 to Defendant Dr. Trabout regarding “Reply to Hungerstrike Phase,” and November 20, 2007 to Bridge regarding “Hungerstrike - Phase II.”
Privilege Log. In further support of his Motion to Compel, Plaintiff asserts that the
Privilege Log does not list unusual incident reports and memoranda that should have
been prepared for Defendants Fischer and LeClaire in connection with Plaintiff’s forcefeeding while housed in Southport and Walsh R.M.U., and which have not previously
been provided to Plaintiff. Plaintiff’s Reply Supporting Discovery ¶ 3. Plaintiff further
maintains that Defendants’ Privilege Log fails to establish that the three listed e-mails
actually contain any legal information pertinent to the instant action. Id.
Insofar as any unusual incident reports and memoranda prepared for
Defendants Fischer and LeClaire in connection with Plaintiff’s force-feeding at
Southport and Walsh R.M.U. exist, they are relevant to, or likely to lead to evidence
relevant to the instant action and must be produced. With regard to the three e-mails
from Heywood listed in the Privilege Log, they must also be produced because
Defendants have failed to sufficiently establish the e-mails are attorney-client
communications shielded from disclosure, and have belatedly asserted the attorneyclient privilege as well as the Privilege Log.
In particular, the attorney-client privilege applies to communications made in

11

Murphy Declaration Exh. A.
29

confidence for the purpose of obtaining legal advice or services, and without a waiver of
the privilege. United States v. Int’l. Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.
1997) (citing In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731
F.2d 1032, 1036 (2d Cir. 1984)). The burden of establishing each element of the
privilege, including the absence of any waiver, is upon the party asserting the privilege.
Id. (citing United States v. Schwimmer, 892 F.2d 237, 234 (2d Cir. 1989)). Because the
attorney-client privilege limits the admissibility of relevant evidence in judicial and other
proceedings, however, it is strictly construed. Id. (citing In re Horowitz, 482 F.2d 72, 81
(2d Cir.) (citing 8 Wigmore, EVIDENCE §§ 2192 at 70, 554 (1961)), cert. denied, 414 U.S.
867 (1973)).
The mere fact that an attorney is consulted by a client does not render the
ensuing communications privileged if the purpose of the consultation is to obtain other
than legal advice or services. See In re County of Erie, 473 F.3d 413, 421 (2d Cir.
2007) (attorney consultation for purpose other than attaining legal advice is not
privileged); Reino de Espana v. American Bureau of Shipping, 2005 WL 3455782, at
*2-3 (S.D.N.Y. Dec. 14, 2005) (e-mails among a party’s executives and in-house
attorney containing “non-legal discussions of business-related issues” including “public
relations strategies,” not privileged particularly where employees outside legal
department are recipients and “legal issues do not predominate.”). Here, the brief
description of the withheld e-mails in the Privilege Log are insufficient to establish that
the purpose of the information contained within was actual legal advice given .
Furthermore, even assuming, arguendo, the attorney-client privilege did attach to
the three Heywood e-mails, Defendants’ failure to timely assert the privilege and to
30

provide a privilege log waives the privilege. When a party withholds relevant
information that is discoverable, pursuant to Fed.R.Civ.P. 26(b)(1), on the grounds of
privilege, a party is obligated to promptly provide the adverse party with notice of the
claimed privilege by preparing and serving a privilege log sufficiently describing the
withheld information to enable the adverse party to assess the validity of the asserted
privilege. Fed.R.Civ.P. 26(b)(5((A); see also W.D.N.Y. Local R.Civ.P. 26(f) (requiring
privilege log be furnished “at the time of the response [to discovery]”). A failure to
comply with this requirement results in a waiver of the asserted privilege in the withheld
information. See United States v. Construction Products Research, Inc., 73 F.3d 464,
473 (2d Cir. 1996) (failure to provide adequately detailed court-ordered privilege log
waives privilege); Bove v. The Allied Group, 2004 WL 5902631, *1 (W.D.N.Y. Oct. 28,
2004 (failure to provide privilege log complying with local rule waives privilege); A.I.A.
Holdings, S.A. v. Lehman Bros., Inc., 2000 WL 1538003, *3 n. 1 (S.D.N.Y. Oct. 17,
2000) (citing PKFinans Int’l. Corp. v. IBJ Schroder Leasing Corp., 1996 WL 525862, *3
(S.D.N.Y. Sep’t. 17, 1996) (“party’s failure to produce [privilege] log results in a waiver
of any privilege that might otherwise be asserted” (citing caselaw))).
Here, Defendants’ obligation to produce the three Heywood e-mails or a privilege
log listing the e-mails and asserting them shielded by the attorney-client privilege
accrued not later than 30 days after Plaintiff served his discovery requests on August
29, 2010. See PKFinans International Corporation v. IBJ Schroder Leasing
Corporation, 1996 WL 525862, *3 (S.D.N.Y. Sept. 17, 1996) (privilege log is timely
produced 30 days after the first request for the production of the subject documents).
Although Defendants responses to the discovery requests were filed on October 1,
31

2010, Defendants never provided Plaintiff with a privilege log until February 23, 2011
when Defendants attached the Privilege Log to the Murphy Declaration. Accordingly,
Defendants, by failing to timely produce the Privilege Log, have waived any privilege
that attached to the documents listed therein.
Plaintiff’s Motion to Compel the Heywood e-mails is GRANTED.
With regard to Plaintiff’s request for videotapes of Plaintiff being force-fed and
forcefully extracted from his cell between April and August 2008, Defendants admit that
videotapes of all such incidents exist, but that the request is overly broad and unduly
burdensome given that during that period of time, Plaintiff was subjected to three daily
force-feedings, and Plaintiff does not contend that any irregularity or other violation
occurred in connection with the cell-extractions and force-feedings. Murphy Declaration
¶ 7. In further support of their argument, Defendants also submit a letter from DOCS
Captain H. Hetrick (“Hetrick”) to Assistant Attorney General Murphy, dated February 23,
2011 (“Feb. 23, 2011 Letter”)12 explaining that there exist a total of 93 VHS-C tapes
covering the 99 days during which Plaintiff was force-fed. According to Hetrick,
because Southport is without any means of “high speed dubbing” of the video tapes,
fulfilling Plaintiff’s request would required one DOCS employee to spend 57 hours
viewing and manually copying each tape. Id.
In further support of the Motion to Compel, Plaintiff narrowed the videotaped
force-feedings and cell-extractions requested to April 29, 2008, May 24, 25, 27, 28 and
29, 2008, July 30, 2008, and August 5, 2008. Plaintiff’s Reply Supporting Discovery ¶

12

Murphy Declaration Exh. B.
32

4. According to Plaintiff, the cell-extractions and force-feedings occurring on these
dates were the subject of an inmate grievance, and the related videos depict Plaintiff
verbally expressing his willingness to drink the liquid nutrition, rather than be force-fed,
but that Defendants persisted in force-feeding Plaintiff. Id.
Fed. R. Civ. P. 26(b)(2)(C) provides for limiting any discovery where “the burden
or expense of the proposed discovery outweighs its likely benefit, considering the needs
of the case, the amount in controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the discovery in resolving the
issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii). Generalized objections that a discovery
request is unduly burdensome are insufficient; rather, the party objecting to the
requested discovery on the ground of undue burdensomeness must submit an affidavit
or offer other evidence revealing the nature of the burden. Cliffstar Corp. v. Sunsweet
Growers, Inc., 218 F.R.D. 65, 69-70 (W.D.N.Y. 2003) (“for a burdensomeness objection
to be sustained, a motion to compel on this ground must be opposed by an affidavit of a
person with knowledge of [the subject matter] explaining in reasonable detain the
factual basis for such objection.”). See also Burns v. Imagine Films Entertainment, Inc.,
164 F.R.D. 589, 592-93 (W.D.N.Y. 1996) (holding generalized objections that a
discovery request is burdensome without resort to specific reasons is insufficient to
justify refusal to respond).
Plaintiff’s narrowing of the number of video-taped force-feedings and cellextractions negates Defendants’ opposition to the requested discovery as overly broad
and unduly burdensome. Significantly, Defendants have not further responded in
opposition to Plaintiff’s argument in any way, much less to explain that copying even a
33

few days of the videotapes would also be unduly burdensome, nor have Defendants
denied that Plaintiff was force-fed despite offering to drink the liquid nutrition, or
asserted that drinking the liquid nutrition was not permitted. As such, Plaintiff’s request
for videotapings of the force-feedings and cell-extractions of April 29, 2008, May 24, 25,
27, 28 and 29, 2008, July 30, 2008, and August 5, 2008, is GRANTED.
Finally, with regard to Defendants’ assertion that production of DOCS Directives
4301 and 4302 “would jeopardize the good order, safety and security of the facility,”
Murphy Declaration ¶ 9 (citing Defendants’ October 1, 2010 Response to Plaintiff’s
Request for Production of Documents No. 20 (Doc. No. 42)), Defendants have failed to
provide any information as to how the production of the requested Directives would
jeopardize any correctional facility’s security, nor did Defendants, in their response to
Plaintiff’s Request for Production of Documents No. 20, provide such information, as
Defendants suggest by referring the court to such document. Moreover, the court is
unable to discern from the motion papers the substance of DOCS Directives 4301 and
4302.
Significantly, it is Defendants’ burden to establish that disclosure of the
requested DOCS Directives would, in fact, jeopardize the correctional facility’s safety or
security. See Medina v. Hunt, 2008 WL 398439, at * 5 (N.D.N.Y. Feb. 11, 2008)
(directing defendant DOCS employees to either produce within 30 days copies of
requested DOCS Directives, “or provide a specific and compelling reason for not doing
so because of institutional safety and security concerns.”). Defendants’ contention that
DOCS Directives 4301 and 4302 were withheld out of concerns for maintaining
institutional safety and security is important and should not be readily disregarded, even
34

if insufficiently presented. Accordingly, Defendants must, within 30 days of receipt of
this Decision and Order, either provide specific and compelling reasons, in the form of
an affidavit from someone with personal knowledge, detailing how providing Plaintiff
with copies of DOCS Directives 4301 and 4302 would compromise the correctional
facility’s safety and security, or produce DOCS Directives 4301 and 4302 to Plaintiff.
Should Defendants choose the former option, Defendants may also provide to the court
for in camera review copies of DOCS Directives 4301 and 4302. The court will consider
Defendants’ submissions in support of withholding DOCS Directives 4301 and 4302
prior to ruling on this request.
Accordingly, Plaintiff’s Motion to Compel is DISMISSED as moot in part, and
GRANTED in part. Further, the court is reserving judgment insofar as Defendants have
been directed either, within 30 days of receipt of this Decision and Order, to provide
sufficient reasons for withholding DOCS Directives 4301 and 4302 based on concerns
of institutional safety and security, or to provide Plaintiff with copies of the subject
DOCS Directives.

35

CONCLUSION
Based on the foregoing, Plaintiff’s motion to amend the complaint (Doc. No. 33),
is DENIED in part and GRANTED in part; Plaintiff’s motion to compel (Doc. No. 50) is
DISMISSED as moot in part, GRANTED in part, and decision is RESERVED in part.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

June 2, 2011
Buffalo, New York

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

36