Orraca v. Washborn et al
Filing
29
DECISION AND ORDER denying 18 Motion to Compel. Signed by Hon. Jeremiah J. McCarthy on 9/15/11. (Court has mailed a copy of this D&O to plaintiff). (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JOSE ORRACA (93-A-9300),
Plaintiff,
DECISION AND ORDER
v.
10-CV-00494(S)(M)
WASHBORN, et al.,
Defendants.
_______________________________________
This action has been referred to me by Order of Hon. William M. Skretny for
supervision of pretrial proceedings in accordance with 28 U.S.C. §636(b)(1) [11].1 Before me
is plaintiff’s motion to compel discovery [18]. Oral argument was held on September 7, 2011
[28]. For the following reasons, plaintiff’s motion is denied, without prejudice.
BACKGROUND
Plaintiff commenced this action pursuant to 42 U.S.C. §1983, alleging that
while he was housed at Southport Correctional Facility (“Southport”), defendants violated his
rights by confiscating and opening his legal mail outside of his presence and confiscating his
personal mail. Complaint [1]. He moves to compel production from defendants of “every
copy of the legal documents confiscated from [him]” [18]. According to plaintiff, he
“submitted [a] request for these documents . . . several times to the defendants pursuant to
Rule 34. . . but have [sic] not . . . received confiscated . . . papers that are legal and cannot be
duplicated. Id.
1
Bracketed references are to the CM/ECF docket entry.
In response, defendants argue that plaintiff’s motion is not predicated on any
discovery request, and that even treating his letter postmarked July 21, 2011 (served after the
July 5, 2011 motion to compel) as a discovery request seeking the confiscated mail, they have
sufficiently responded to it by representing in their discovery response [24] that they “are no
longer in possession of any of plaintiff’s previously confiscated documents”. Murphy
Declaration [25], ¶¶8-9.
ANALYSIS
“[I]n the absence of proof of demands actually being served upon defendants, a
motion to compel their response is premature.” Fox v. Poole, 2006 WL 2528535, *2
(W.D.N.Y. 2006)(Scott, M.J.). There is nothing before me establishing that plaintiff’s motion
to compel disclosure of the confiscated documents was preceded by a document demand
seeking such discovery. Even assuming that plaintiff’s motion was not premature, I would
deny it, since defendants have represented in a discovery response that they are not in
possession of any responsive documents [24].
Changing course from what he initially sought in his motion, plaintiff’s reply
seeks disclosure of the “book log entry of all legal mail sent to plaintiff at Southport
Correctional Facility” [26]. I “will not consider new arguments in reply papers.” Precisionir
Inc. v. Clepper, 693 F.Supp.2d 286, 297 (S.D.N.Y. 2010). Even if plaintiff had sought this
relief in his initial motion, I would deny it as premature because there is no indication that
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plaintiff served a document demand seeking this discovery. See Fox, 2006 WL 2528535 at
*2.
CONCLUSION
For these reasons, plaintiff’s motion to compel [18] is denied, without
prejudice to refiling after proper discovery demands are made.
SO ORDERED.
Dated: September 15, 2011
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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