Nowlin v. 2 jane doe female et al

Filing 61

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 56 Letter, 47 MOTION to Compel filed by Quintin A. Nowlin, 53 Order on Motion to Compel, 60 Reply/Response, filed by 2 jane doe female, City o f Rochester, Kenneth Coniglio, Jr., Rochester Police Officers, Arresting Rochester Police Officer ID: ROC2122, The Rochester New York Police DepartmentRochester defendants' letter response (Docket No. 60) filed with permission of Chambers.Plaintiff's fee application and manner of payment (Docket No. 56) is granted.So Ordered. Signed by Hon. Hugh B. Scott on 7/9/2013. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINTIN A. NOWLIN,
Plaintiff,

v.

Hon. Hugh B. Scott
11CV712S

2 JANE DOE FEMALE ROCHESTER NEW YORK
POLICE OFFICERS, et al.,

Order

Defendants.

Before the Court was plaintiff’s motion to compel (Docket No. 47) production of initial
disclosure from Rochester defendants1, which was granted (Docket No. 53). The Order granting
relief also allowed plaintiff to file for his reasonable motion expenses (primarily copying and
postage) (Docket No. 53, Order of June 19, 2013, at 8-9); familiarity with that Order and
underlying proceedings is presumed. Presently before the Court is plaintiff’s letter application
(Docket No. 56)2, wherein he seeks $5.28 but payable in pre-paid postage (either in postage paid
or on pre-stamped envelopes).
The Rochester defendants were to respond to this application and the unusual method of
payment sought by July 8, 2013 (Docket No. 57), and the application was deemed submitted
without oral argument on that date. On July 8, 2013, the Rochester defendants wrote (Docket

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These defendants include the City of Rochester, its Police Department, “Arresting Police
Officer ID ROC2122,” and Kenneth Coniglio, Jr., Docket No. 14, Rochester Defs. Ans. This is
to distinguish them from the “Monroe County defendants,” the County, its Sheriff O’Flynn, and
Deputy R. Pozzuolo.
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Also pending and to be addressed separately is plaintiff’s motion to dissolve a stay of
discovery Order to allow discovery from the Monroe County defendants, Docket No. 58.

No. 603) that the City of Rochester is agreeable to send plaintiff $5.28 worth of postage in prestamped business-sized envelopes, sending twelve of these envelopes to plaintiff, with a total of
$5.52 in postage (with first-class postage currently at $.46) (id.).
Federal Rule of Civil Procedure 37 provides that a successful discovery movant may
recover his reasonable motion expenses. The ususal analysis under this rule determines whether
the amount sought is reasonable and whether the opponents’ failure to produce was “substantially
justified or other circumstances make an award of expenses unjust,” Fed. R. Civ. P. 37(b)(2)(C).
Plaintiff here seeks to recover $5.28 (Docket No. 56), without objection from the
Rochester defendants. Although he did not state specifically what expenses he claimed, it can be
presumed that it was either for copying or postage expenses, the two categories of expenses the
Court initially considered reasonable for this pro se plaintiff to claim (see Docket No. 53, Order
of June 19, 2013, at 8) and from the manner in which plaintiff seeks reimbursement.
Unusually, plaintiff seeks the $5.28 in pre-paid postage rather than in cash. Rule 37 does
not dictate the manner in which payment of discovery sanctions or reasonable motion costs are to
be made. Plaintiff has not explained any hardship in him receiving money (either directly or in
his inmate account) that would warrant having his expenses reimbursed in this particular manner.
The Rochester defendants, however, have not objected to this method of payment and in fact
have forwarded the sought postage in pre-stamped envelopes that exceed the $5.28 sought.
Given that these defendants have made this payment already, plaintiff’s unusual request is
granted. Plaintiff, however, is cautioned that he can not complain later if for whatever reason he

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This letter submission is deemed acceptable for filing.
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does not receive these envelopes or he finds that he cannot use the envelopes for mailing larger
items that he otherwise could have paid for had he had the full amount in cash.
Plaintiff’s fee application (Docket No. 56) is granted and the Rochester defendants
sending the envelopes with pre-paid postage meets this obligation.
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
July 9, 2013

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