Maldonado v. Fischer et al

Filing 63

ORDER denying 54 Motion to Dismiss or Compel Continued Deposition of Plaintiff. Signed by Hon. H. Kenneth Schroeder, Jr on 6/1/2016. (KER)(Mailed to Plaintiff)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANGEL MALDONADO, 03-R-2519,
Plaintiff,
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11-CV-1091Sr

SUSANNA MATTINGLY
Parole Officer,
Defendant.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #15.

Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983,
seeking to enjoin defendants from imposing sex offender conditions following his
release on parole on May 28, 2009; February 24, 2010 and September 29, 2010. Dkt.
#1. The third amended complaint alleges that the imposition of these sex offender
conditions by Parole Officer Susanna Mattingly during his release on parole from
September of 2010 through May of 2011 constituted a violation of the ex post facto
clause of the United States Constitution; a violation of plaintiff’s constitutional right to
substantive and procedural due process; and a violation of plaintiff’s First Amendment
right to association. Dkt. #52. Plaintiff pled guilty to a misdemeanor charge of sexual
misconduct on July 8, 1997; was found guilty of 1st degree scheme to defraud, 3rd

degree grand larceny, attempted petit larceny, compounding a crime, 2nd degree
harassment, tampering with physical evidence, bribing a witness, criminal
impersonation, aggravated harassment and 2nd degree bail jumping on April 25, 2003;
and is serving an indeterminate sentence of of 3½ to 7 years incarceration following
his conviction of 3rd degree grand larceny on August 21, 2012. Dkt. #18, ¶¶ 8-9 & Dkt.
#28, pp.4 & 8.

Currently before the Court is defendant Susanna Mattingly’s motion to
dismiss the third amended complaint pursuant to Rule 37(b) of the Federal Rules of
Civil Procedure as a sanction for plaintiff’s refusal to answer deposition questions
relating to his criminal convictions, parole violations, his relationship with Valerie Cole
and his career as a musician. Dkt. #54. In the alternative, defendant requests that
plaintiff be required to pay the costs of a second deposition and ordered to respond
completely to her questions. Dkt. #54.

Plaintiff opposes the motion on the ground that his responses to the
Assistant Attorney General’s questions could compromise his ability to defend himself
should his pending criminal appeals prove successful and his ability to pursue a civil
case against his former record label. Dkt. #58, ¶¶ 16 & 19. Plaintiff also argues that
none of the questions at issue in this motion had any bearing on Susanna Mattingly’s
decision to impose the sex offender conditions to his parole in 2009 and 2010. Dkt.
#58, ¶ 16. In the event that additional questioning is permitted, plaintiff asks the Court
to order it to be conducted by video conference so that he is not forced to travel for
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days in handcuffs. Dkt. #58, ¶ 14.

Rule 37(b) of the Federal Rules of Civil Procedure provides:
(1) If the court where the discovery is taken orders a
deponent to be sworn or to answer a question and the
deponent fails to obey, the failure may be treated as
contempt of court. . . .
(2) If a party . . . fails to obey an order to provide or permit
discovery . . . the court where the action is pending may
issue further just orders.
It is clear, however, that a Case Management Order permitting the deposition of a
person confined to prison is insufficient to justify dismissal of a complaint pursuant to
Rule 37(b)(2). Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986). Rather, the
appropriate procedure is to seek an Order from the Court directing plaintiff to answer
specified questions. Id.

Rule 26(b) of the Federal Rules of Civil Procedure provides that discovery
may be obtained “regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Upon consideration of these factors and review of the
deposition transcript, the Court finds no basis to compel plaintiff’s response to the
depositions questions at issue in this motion. Specifically, the Court questions the

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relevancy of plaintiff’s testimony regarding his parole violations and 2012 criminal
conviction to the question of whether it was appropriate to impose sex offender
conditions upon plaintiff in 2009 and 2010. To the extent that such information could be
relevant to the claims asserted against Ms. Mattingly, the Court is confident that it can
be proffered in a more reliable evidentiary form from sources that are readily available
to the defendant. Accordingly, defendant’s motion (Dkt. #54), is denied.

SO ORDERED.

DATED:

Buffalo, New York
June 1, 2016

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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