Gambino v. Payne et al

Filing 135

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 121 MOTION for Discovery MOTION for Sanctions filed by David August Gambino, 111 Cross MOTION to Compel Plaintiff to execute a Certification of Identity Cross MOTION to Amend/Correct Scheduling Order filed by Geoski, Rebald, Greenwald, Williams, Rankin, Payne, 105 MOTION for an order of protection filed by David August Gambino, 113 MOTION to Compel filed by David Aug ust Gambino, 107 MOTION to Amend/Correct 11 Amended Complaint, filed by David August Gambino,THIRD AMENDED SCHEDULING/CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire c ontents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)Plaintiff's Motion (Docket No. 105) for a protective Order is denied; defendants' cross-motion (Docket No. 111) to compel execution of Certification of Identity is granted, plaintiff to execute by 8/2/2015; plaintiff's Motion (Docket No. 107) for leave to amend the Complaint is granted in part, with plaintiff serving and filing the Amended Complaint by 7/16/2015; plaintiff's motions to compel (Docket Nos. 113, 121) are denied without prejudice.Scheduling Order (Docket No. 85) is amended as follows:Motions to Join Parties/Amend Pleadings due by 7/16/2015. Discovery completed by 9/30/2015. Dispositive Motions due by 12/29/2015. Motions terminated: 111 Cross MOTION to Compel Plaintiff to execute a Certification of Identity Cross MOTION to Amend/Correct Scheduling Order filed by Geoski, Rebald, Greenwald, Williams, Rankin, Payne, 121 MOTION for Discovery MOTION for Sanctions filed by David August Gambino, 113 MOTION to Compel filed by David August Gambino, 107 MOTION to Amend/Correct 11 Amended Complaint, filed by David August Gambino, 105 MOTION for an order of protection filed by David August Gambino.Copy of Order mailed to plaintiff at Cumberland Correctional Institution by Chambers.So Ordered. Signed by Hon. Hugh B. Scott on 7/2/2015. (DRH) Modified on 7/2/2015--add service of plaintiff (DRH).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID AUGUST GAMBINO,
Plaintiff,
Hon. Hugh B. Scott
12CV824A
v.
Order

CAPTAIN PAYNE, et al.,
Defendants.

Before the Court is a series of motions: (a) from plaintiff proceeding pro se seeking to
compel production (Docket Nos. 113, 121); (b) from plaintiff seeking leave to amend the
Complaint (Docket No. 107); (c) from plaintiff seeking a protective Order (Docket No. 105); and
(d) from defendants cross-moving to compel (Docket No. 111). Each motion had its briefing
Schedules (Docket Nos. 106, 108, 112, 116, 119) but ultimately all motions were deemed
submitted (without oral argument) on June 5, 2015 (Docket No. 116). Due to these motions, the
deadlines of the current Scheduling Order (Docket No. 85) were held in abeyance pending
resolution of these motions (Docket Nos. 112, 116; cf. Docket No. 106).
Separately, this Court denied plaintiff’s apparent motion to compel responses to his state
Freedom of Information Law requests to non-parties (Docket No. 124; cf. Docket No. 123).
Also pending are two sanctions motions filed by plaintiff (Docket Nos. 93, 126),
asserting either fraud on the Court or perjury by defendants in not disclosing information about
defendants and Niagara County Jail employees. Judge Arcara set a briefing schedule for the first

motion (Docket No. 98; cf. Docket No. 95 (this Court’s initial schedule, superseded by
Judge Arcara’s schedule)). This Court then set briefing for the second Motion (Docket No. 126;
see Docket No. 1281) and it will be addressed in a separate Report & Recommendation (given
the relief sought).
BACKGROUND
This is a civil rights action commenced by plaintiff, proceeding pro se as an inmate. On
August 30, 2012, plaintiff filed his original Complaint (Docket No. 1), alleging that defendants
exposed plaintiff’s naked body in violation of his Jewish religious beliefs in modesty, that
plaintiff endured corporal punishment and suffered sexual abuse while in Niagara County
custody (Docket No. 11, Am. Compl). Plaintiff was in Niagara County’s custody while awaiting
disposition of his federal charges, see United States v. Gambino, No. 09CR372A. In 2012, when
the incidents in this case allegedly occurred, plaintiff was awaiting sentencing, see id., Docket
No. 605, sentencing adjourned to April 5, 2012; see also id., text minute entry Nov. 20, 2013,
sentencing held. Plaintiff is currently in custody in a federal facility in Maryland but was
formerly in McKean Federal Correctional Institution in Pennsylvania. According to the Court’s
docket, plaintiff relocated to Maryland on or about March 24, 2015.
This Court granted plaintiff’s in forma pauperis motion on his initial Complaint (Docket
No. 2), dismissing the First Claim and granting him leave to amend some of the remaining
claims (Docket No. 6). Plaintiff then filed his Amended Complaint (Docket No. 11, asserting
claims that survived this in forma pauperis review) and defendants answered (Docket Nos. 14,
58).
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Responses to that motion are due by June 19, 2015, with any replies by July 1, 2015, and the motion
deemed submitted without oral argument on July 1, 2015, Docket No. 128.

2

Among the various motions filed in this action, plaintiff moved for a preliminary
injunction and to compel production (Docket Nos. 31, 32, 34, 33) while defendants cross-moved
to compel execution of authorizations (Docket No. 41). This Court entered a Report &
Recommendation (Docket No. 68, Dec. 24, 2014) which, pertinent to the pending motions,
granted defendants’ motion , giving plaintiff 45 days in which to execute them (id. at 9-10, 10).
Defendants sought authorizations from plaintiff to access his Federal Bureau of Prisons records
at McKean Federal Correctional Institution (“McKean”), which they claim were relevant to the
sincerity of his religious beliefs (id. at 9). Although initially opposing the authorizations,
plaintiff during oral argument stated that he had no objection to executing authorizations for his
medical, mental health, and commissary records at McKean (id.). This Court found the materials
sought in the authorizations to be relevant to this case, by establishing the sincerity of plaintiff’s
conversion to Judaism (id.). Judge Arcara adopted this Report (Docket No. 102, Order of
Apr. 22, 2015).
Plaintiff’s Motion for a Protective Order, Docket No. 105
First, plaintiff seeks a protective Order against production of “any and all” United States
Department of Justice files and records (Docket No. 105, Pl. Motion ¶ 1). Defense sought an
authorization from plaintiff to access these Justice Department files, but plaintiff contends that
the information sought is sensitive and private and the request is overly broad (id. ¶¶ 2-3).
Plaintiff contends that his federal criminal file was sealed and has no relevance to this civil
action (id. ¶ 4). Plaintiff returned authorizations editing “any and all” to limit it to medical2
records (id. ¶ 6).

2

Cf. Docket No. 105, Pl. Motion ¶ 6 editing defense authorizations to add word “MEDIAL.”

3

Defendants respond and support their cross-motion to compel (discussed in detail below)
(Docket No. 110). They note that this Court already granted their previous motion to compel
plaintiff to execute authorizations and the “Certification of Identity” they now seek plaintiff to
execute (without alteration) would facilitate obtaining the records already authorized by this
Court (id. ¶¶ 22-24, 28). Defendants argue that plaintiff’s concerns about this Certification of
Identity are unfounded, that the Certification is required for the Federal Bureau of Prisons to
produce the materials sought, since the Bureau views defendants’ requests as Freedom of
Information Act requests (id. ¶ 25). This Certification would not expand the authorizations
already allowed in this case for plaintiff’s federal prison medical and inmate records (id. ¶ 26).
Defendants contend that they would not seek information about plaintiff’s sealed criminal case
(id. ¶ 27).
Plaintiff replies that he believes these authorizations will invade his attorney-client
privilege and the sealed criminal prosecution, raising concerns that released information may
endanger his family (Docket No. 120, Pl. Response at 1-2). He remains concerned that the
authorizations and Certification’s use of the phrase “any and all” broadens the disclosure beyond
previous limits to now include (for example) plaintiff’s Department of Justice file and not merely
the McKean prison records (id. at 2-3), seeking an Order to modify or monitor the release of
information pursuant to these authorizations (id. at 3). Plaintiff does not object to Court
supervision of this discovery to avoid production of sensitive materials (id. at 4).
Plaintiff’s Motion for Leave to Amend Complaint, Docket No. 107
Plaintiff identified a defendant referred to only as “Kitchen Cook” as Theresa L. Lewis
and plaintiff seeks to amend the Complaint to formally allege claims against Lewis (Docket
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No. 107, Pl. Motion). Plaintiff also included with this motion Rule 27 notices of witnesses he
intends to depose (id.). but, as defendants note (Docket No. 109, Defs. Atty. Decl. ¶¶ 17-19),
Federal Rule of Civil Procedure 27 applies only to pre-action discovery, Fed. R. Civ. P. 27(a), or
pending an appeal, id., R. 27(b).
Defendants oppose granting leave because it is untimely under the deadlines of the
current Scheduling Orders (Docket No. 109, Defs. Atty. Decl. ¶¶ 8-11). They also argue that
plaintiff failed to comply with this Court’s Local Civil Rule 15(a), W.D.N.Y. Loc. Civ. R. 15(a),
by not submitting an unsigned copy of his proposed Amended Complaint (id. ¶¶ 13-16).
Defendants also object to plaintiff’s Rule 27 disclosure of witnesses intended to be deposed since
Rule 27 applies to pre-action discovery (id. ¶¶ 17-19).
In reply, plaintiff complains that defendants have not produced to him, including the
names of unidentified defendants, hence leading to plaintiff’s present (if tardy) motion for leave
to amend once one name was learned (Docket No. 122, Pl. Response at 1-2). Plaintiff argues
that defendants have stonewalled throughout this case, such as identifying and locating defendant
Corey Lewis (id. at 2-3), in effect excusing his late motion. Plaintiff also recently learned the
name of another defendant, an Officer Elliot, and will soon seek to serve this defendant (id. at 3).
Next, plaintiff is unsure what the “unsigned copy of the proposal” means under our Local Civil
Rules (id. at 4). Finally, plaintiff complains that defense stonewalling in failing to provide all
discovery has hindered his ability to advance this case (id. at 5).
Defendants’ Cross-Motion to Compel and to Amend the Scheduling Order, Docket No. 111
Defendants seek an unaltered Certification of Identity from plaintiff to obtain plaintiff’s
prison records from the Federal Bureau of Prisons (Docket No. 110, Defs. Atty. Decl. ¶ 4). They
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sought authorizations from plaintiff to obtain his prison medical and criminal records,
commissary orders, and visitor, mail and phone logs while plaintiff was housed at McKean (id.
¶ 8). As previously noted, this Court already authorized execution of plaintiff’s authorizations to
obtain his federal prison records (Docket No. 68, Report & Rec. of Dec. 24, 2014, at 10-11;
Docket No. 102, Order of Apr. 22, 2015 (adopting Report); Docket No. 110, Defs. Atty. Decl.
¶ 10). Defendants then submitted additional copies of the authorizations (Docket No. 110, Defs.
Atty. Decl. ¶ 11, Exs. A, I), but plaintiff did not execute them for non-medical records (id., ¶ 12,
Ex. B). Meanwhile, defendants submitted what authorizations they had to the Federal Bureau of
Prisons which treated them as Freedom of Information Act requests and required either notarized
signatures of plaintiff and express designation of third party access or plaintiff to execute a
Certification of Identity (id. ¶¶ 13-17, Exs. C, D, E, F. G). Plaintiff was given the Certification
of Identity but he altered it as he signed it (id. ¶ 18, Ex. H). Defendants then moved for an Order
compelling plaintiff to execute an unaltered Certification of Identity (id. ¶ 23).
Under the current Scheduling Order (Docket No. 85), the discovery deadline was June 5,
2015, but the deadlines were held in abeyance pending resolution of these motions (Docket
No. 112). Defendants contend that, first, they had not completed plaintiff’s October 2014
deposition and, second, that due to the problems with plaintiff’s authorizations and the
anticipated time to obtain documents from the Federal Bureau of Prisons upon properly executed
forms, the parties will need 90 days more to complete discovery (Docket No. 110, Defs. Atty.
Decl. ¶¶ 31-34).

6

Plaintiff’s Motions to Compel, Docket Nos. 113, 121
Finally, plaintiff filed two motions seeking to compel discovery and disclosure from
defendants (Docket Nos. 113, 121). In the first motion (dated May 11, 2015, and received
May 18, 2015), plaintiff generally complains that he has a limited amount of discovery from
defendants while he has produced fully to defendants (Docket No. 113, Pl. Notice of Motion
¶¶ 1-3). Defendants had produced only an incomplete list of names of employees and had not
identified the unnamed mental health employees (id. ¶ 4). In this motion, plaintiff seeks an
extension of time to allow defendants to produce (id. ¶ 5).
Defendants respond that the list of Niagara County jail employees was created in good
faith to identify those employed there during the relevant time period, January 1 to June 28, 2012
(Docket No. 118, Defs. Atty. Decl. ¶ 6; see Docket No. 91). They counter that plaintiff’s earlier
subpoenas (now deemed discovery demands) did not request the identities of “mental health
employees” plaintiff now appears to seek in this motion (Docket No. 118, Defs. Atty. Decl. ¶ 7),
but the employee list disclosed Cindy Quigley as a “Psych RN,” although Ms. Quigley was
employed by a contractor of Niagara County (id.; Docket No. 91). Defendants then identified
two other mental health employees, Dr. Samueal Adegbite and Jeanne Salada-Conroy, PNP
(Docket No. 118, Defs. Atty. Decl. ¶ 7). Defendants counter that their Interrogatory Answers
were complete (id.¶ 8) and fault plaintiff for failing to meet and confer to discuss plaintiff’s
concerns (id. ¶¶ 9, 10) and did not give defendants notice of the deficiencies (id. ¶ 11). Finally,
defendants object to plaintiff’s motion that it seeks information that is not relevant or reasonably
calculated to lead to discovery of relevant evidence, see Fed. R. Civ. P. 26(b)(1) (id. ¶ 12).

7

In plaintiff’s second motion to compel (Docket No. 121, received June 1, 2015), plaintiff
again complains that he has not received any requested documents and defendants had not
objected to the requests, focusing on defendants’ failure to identify unknown defendants. Again,
plaintiff does not include with his motion the document requests served on defendants, but cf.
W.D.N.Y. Loc. Civ. R. 5.2(f) (contrary to the rule for represented litigants, cases with pro se
parties must file their discovery materials with the Court). He did file some Interrogatories
(Docket Nos. 71, 72), certain authorizations (Docket No. 86, manually filed), and subpoenas
(Docket No. 64) and a motion for summary judgment (Docket No. 75), these later deemed by
this Court to be discovery requests (Docket No. 88, Order or Mar. 2, 2015; Docket No. 89,
Report & Rec. of Mar. 5, 2015), but is not clear which discovery requests defendants have not
complied with. Defendants have filed discovery responses in this case (Docket Nos. 23, 70
(Rule 26(a) disclosures), 77, 78 (answers to Interrogatories), 91 (responses to plaintiff’s
discovery demands); see also e.g., Docket No. 30, defendants’ request for production of
documents from plaintiff).
This motion relates to his last motion (Docket No. 126) for sanctions because defendants
failed to identify and disclose the location of certain individual defendants. Plaintiff also notes
that defendants violated this Court’s earlier Valentin3 Order (Docket No. 131; see also Docket
No. 40, Order of Oct. 23, 2014).
Defendants respond to plaintiff’s second motion to compel that the defendants had
inadvertently overlooked plaintiff’s discovery demands and vowed to respond promptly (Docket
No. 130, Defs. Atty. Decl. ¶¶ 4-5, 9). They argue that plaintiff made no attempt to meet and

3

Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam).

8

confer or request responses to his discovery demands short of filing this motion, thus his motion
should be denied (id. ¶¶ 6, 8). Defense counsel contends that, had plaintiff done so, defendants
would have recognized the omission and complied (id. ¶ 7).
DISCUSSION
I.

Applicable Standards
A.

Protective Order

Under Rule 26(c), prior to obtaining a protective Order the movants must certify that they
have in good faith conferred or attempted to confer with the other affected parties in an effort to
resolve the dispute without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court
has power to protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20,
34 (1984). The appropriateness of a protective Order is a balance of the litigation needs of the
requesting party and the protectable interests of the party from whom discovery is sought.
Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in
issuing such a protective Order. Seattle Times, supra, 467 U.S. at 36.
B.

Motion to Compel

Discovery under the Federal Rules is intended to reveal relevant documents and
testimony, but this process is supposed to occur with a minimum of judicial intervention. See
8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure
§ 2288, at 655-65 (Civil 2d ed. 1994). “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons having knowledge of any discoverable matter.” Fed. R.

9

Civ. P. 26(b)(1) (effective Dec. 1, 2007). Initial disclosure includes producing “a copy of, or a
description by category and location of, all documents . . . that are in the possession, custody, or
control of the party and that the disclosing party may use to support its claims . . . .” Fed. R. Civ.
P. 26(a)(1)(B).
Federal Rule 26(b)(2)(i) allows this Court to limit the scope and means for discovery if
“the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive.” Under Rule 26(c),
this Court may issue a protective order to protect a party “from annoyance, embarrassment,
oppression, or undue burden or expense” by not having a proposed disclosure or discovery
device, or conditioning the time and manner of that discovery. Fed. R. Civ. P. 26(c)(1), (1)(B)(C); see id. R. 26(c)(1)(D) (limit the scope or the matters inquired into).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order
compelling discovery, with that motion including a certification that the movant in good faith
conferred or attempted to confer with the party not making the disclosure to secure that
disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Similarly, under Rule 26(c),
prior to obtaining a protective Order the movants must certify that they have in good faith
conferred or attempted to confer with the other affected parties in an effort to resolve the dispute
without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court has power to
protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984).
The appropriateness of a protective Order is a balance of the litigation needs of the requesting
party and the protectable interests of the party from whom discovery is sought. Mitchell v.

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Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such
a protective Order. Seattle Times, supra, 467 U.S. at 36.
C.

Leave to Amend the Complaint

Under Federal Rule of Civil Procedure 15(a) amendment of pleadings after the time to do
so as of right requires either consent of all parties (apparently not present here) or by leave of this
Court. Under Rule 15(a) motions for leave to amend the complaint are to be freely given when
justice requires. Granting such leave is within the sound discretion of the Court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330 (1971). “In the absence of any apparent or declared reason–such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.–the leave sought should, as the rules require, be ‘freely
given.’” Foman, supra, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)). Under this Court’s
Local Civil Rules, the movant seeking leave to amend is to submit “an unsigned copy of the
proposed amended pleading as an exhibit to the motion” with the proposal being “a complete
pleading superseding the original pleading in all respects” and with no portion of the original
incorporated by reference into the amendment, W.D.N.Y. Loc. Civ. R. 15(a). As a pro se party,
plaintiff need not present a “red-line” version of the amendment (that is, a draft comparison
document of the original with the changes indicated in “red-line”), id., R. 15(b). There is no
sanction, however, for the absence of an exhibit of the proposed amendment to the motion, cf.
W.D.N.Y. Loc. Civ. R. 5.2(i) (pro se litigants are to become familiar with and abide by Local

11

and Federal Rules, with failure to comply with the rules “may result in the dismissal of the case,
with prejudice”).
Where a plaintiff is proceeding pro se, leave to amend should be freely granted. Frazier
v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988) (pro se should be freely afforded opportunity to
amend).
II.

Application
A.

Plaintiff’s Motion for a Protective Order, Docket No. 105, and Defendants’
Cross-Motion to Compel, Docket No. 111

This Court addresses together the motions regarding plaintiff’s execution of Certification
of Identity to allow implementation of the authorizations previously ordered (Docket Nos. 102,
68). This process continues the discovery sought by defendants (Docket No. 41) through the
authorizations that this Court previously approved and found was relevant to this action (Docket
No. 68, Report & Rec. of Dec. 24, 2014, at 9-10; Docket No. 102, Order of Apr. 22, 2015). The
Certification here simply allows the Federal Bureau of Prisons to process the Freedom of
Information Act request by defendants to obtain plaintiff’s Federal Bureau of Prisons records
without more onerous submission of plaintiff’s notarized signature on already submitted
authorizations and notation that defendants as third parties can receive the materials sought.
To be clear, and as conceded by defendants (Docket No. 110, Defs. Atty. Decl. ¶¶ 25-27),
the authorizations issued in this case do not involve production of material from plaintiff’s
criminal case. Defendants here seek his prison records while at McKean. The Federal Bureau of
Prisons, an agency of the Department of Justice, construed defendants’ authorizations as a
Freedom of Information requests with the procedural panoply associated with such requests,
including confirmation that the inmate at issue is the correct and authorizing party for the
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disclosure. Plaintiff objects to the format of the Certificate of Identity. The Certification of
Identity is a Bureau of Prisons form (Docket No. 105, Ex. H) and not drafted by defendants.
That form contains the objectionable “any and all information” language. In the context of this
action, the documents authorized to be released are only those relevant to this action.
Furthermore, it is unlikely the Federal Bureau of Prisons has plaintiff’s criminal file to raise his
present concern.
Thus, plaintiff’s motion for a protective Order against executing the Certification of
Identity (Docket No. 105) is denied and defendants’ cross-motion to compel its execution
(Docket No. 111) is granted. Plaintiff is to execute the Certification of Identity (without
alteration) within approximately thirty (30) days of entry of this Order, or by August 3, 2015.
B.

Leave to Amend the Complaint, Docket No. 107

Plaintiff seeks to amend the Complaint to name a John/Jane Doe defendant over
defendants’ objection, but failed to file a draft of the proposed amended pleading. It appears that
plaintiff has identified the “Kitchen Cook” and merely needs to substitute her name (Theresa
Lewis) for Kitchen Cook wherever referenced in the original Complaint. Our local rule merely
requires a moving party to submit the draft of the amended pleading, to show the Court and
parties what the movant now intends to allege and against which parties, W.D.N.Y. Loc. Civ.
R. 15(a), and to avoid piecemeal amendments where separate documents (the original pleading,
and amendments) might contain all the allegations.
This Court will excuse the pro se plaintiff from failing to file with his motion his
proposed Amended Complaint, but cf. W.D.N.Y. Loc. Civ. R. 5.2(i) (discussed below), rather
than denying the motion and having plaintiff file a new motion with the required papers attached.
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As a result, leave for plaintiff to serve and file an Amended Complaint (Docket No. 107) is
granted in part. Since this Court does not have plaintiff’s proposed amendment, plaintiff may
amend provided he merely renames the “Kitchen Cook” to be Ms. Lewis at the relevant portions
of the Complaint. Plaintiff may not amend the Complaint further (such as to identify other
unnamed defendants or augment or amend claims) without leave of this Court by a further
motion. Upon such a motion for leave, plaintiff shall include a draft of the amended Complaint
that would replace the current pleading before this Court so that all will know what plaintiff
proposes to allege, W.D.N.Y. Loc. Civ. R. 15(a). Plaintiff is to serve and file his Amended
Complaint by July 16, 2015, or within fourteen (14) days of entry of this Order.
C.

Plaintiff’s Motions to Compel, Docket Nos. 113, 121

Next, this Court considers jointly plaintiff’s two motions to compel (Docket Nos. 113,
121). Both motions argue generally that defendants have failed to produce, but without
presenting the discovery requests at issue. Apparently, plaintiff is focused on disclosure of the
unnamed defendants or employees at the Niagara County Jail, including “mental health
employees” at that facility (cf. Docket Nos. 126, 131). There has been extensive motion practice
on the identification of the John/Jane Doe defendants (Docket Nos. 44, 66, 75, 126, 131; see
Docket No. 88, Order of Mar. 2, 2015), including the present motion discussed above granting
plaintiff leave to amend the Complaint (Docket No. 107).
A greater threshold hurdle, however, is the good faith certification requirement of
Rule 37 before a motion to compel can be granted. Rule 37 requires a party moving to compel to
state his attempts to confer in good faith with the non-responsive opponent prior to making the
motion, Fed. R. Civ. P. 37(a)(1); see also Brown v. UConn Med. Group, No. 3:12CV1305, 2014
14

U.S. Dist. LEXIS 84121, at *7-8 (D. Conn. June 20, 2014) (denying pro se plaintiff’s motion to
compel where plaintiff failed to certify good faith attempts to resolve discovery dispute with
defendants). This may be logistically difficult if the discovering party (as here) is incarcerated
and proceeding pro se, but the requirement is not waived because of that status, see Fox v. Poole,
No. 06CV148, 2007 U.S. Dist. LEXIS 64779 (W.D.N.Y. Aug. 31, 2007) (Scott, Mag. J.)
(denying incarcerated pro se plaintiff’s motion for sanctions for failing to respond to discovery
demands); Nowlin v. Lusk, No. 11CV712, 2014 U.S. Dist. LEXIS 10341, at *16 (W.D.N.Y. Jan.
28, 2014) (Scott, Mag. J.) (citing cases, denying incarcerated pro se plaintiff’s motion to compel
for not making good faith attempts to resolve dispute short of motion practice). This rule only
requires the movant to certify that he tried to resolve the matter prior to making the motion, with
indications of the attempts made. An exchange of letters, for example, wherein plaintiff and
defense counsel discuss plaintiff’s concerns (or plaintiff’s attempts to raise them) and
certification of that exchange would have satisfied the Rule 37 requirement.
Here, plaintiff did not certify even that he attempted to resolve these issues before
moving. According to defendants, plaintiff did not tell defense counsel that they did not respond
to plaintiff’s outstanding discovery demands (Docket No. 130, Defs. Atty. Decl. ¶ 6). Plaintiff,
proceeding pro se and remotely from this District, may be excused for not following all of the
requirements of motion practice in this Court, but under the rules of this Court plaintiff is to
“become familiar with, follow, and comply with” the rules, W.D.N.Y. Loc. Civ. R. 5.2(i).
Again, had plaintiff written to defense counsel and asked about the discovery demands, his
motion to compel would be favorably received and (according to defendants, id.¶ 7) defendants
would have been reminded and produced.
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For the reason of plaintiff’s failure to certify his attempts to resolve this dispute short of
motion practice, and the vagueness of his requests, his motions to compel (Docket Nos. 113,
121) are denied. This denial, however, is not on the merits of what defendants produced (or yet
to produce, cf. Docket No. 130, Defs. Atty. Decl. ¶¶ 7, 9) and this motion may be renewed if
plaintiff first attempts to confer with defense counsel and fails to work out a satisfactory
resolution. As for plaintiff’s second motion and defendants’ assurance that they would now
comply, further Court intervention should not be necessary.
III.

Amended Scheduling Order
Within defendants’ cross-motion, they seek to extend the Scheduling Order by 90 days,

due to the anticipated time necessary to have the authorizations submitted to the Bureau of
Prisons and the records released (Docket No. 110, Defs. Atty. Decl. ¶¶ 33-34). Plaintiff also
seeks extension of this schedule (see Docket No. 113, Pl. Motion ¶ 5) to allow time for defense
compliance with discovery. This Court agrees that the Scheduling Order needs to be revisited
(cf. Docket Nos. 112, 116, 106).
Given the resolutions of the pending motions (discussed above), defendants’ crossmotion (Docket No. 110, Defs. Atty. Decl. ¶ 5) to extend discovery and other Scheduling Order
deadlines by 90 days (id. ¶ 34), and plaintiff’s motion generally requesting an extension of the
Scheduling Order (Docket No. 113, Pl. Motion ¶ 5), the Second Amended Scheduling Order
(Docket No. 85) that was held in abeyance pending resolution of these motions (Docket
Nos. 112, 116) needs to be re-established and new deadlines set.
As a result (and as ordered above), plaintiff is to file and serve his Amended Complaint
by July 16, 2015, or fourteen (14) days from entry of this Order; plaintiff is to execute the
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Certification of Identity by August 2, 2015, or within thirty (30) days of entry of this Order;
discovery is now to be completed by September 30, 2015, or ninety (90) days from entry of this
Order; dispositive motions by December 29, 2015, or ninety (90) days from the new discovery
deadline. If no dispositive motions are filed by December 7, 2015, the parties are to contact the
Chambers of Judge Arcara by January 8, 2016, or 10 days after the motion deadline, to schedule
a pretrial conference and set a trial date.
With this schedule, plaintiff has time to serve his Amended Complaint, conduct discovery
(for example, the witnesses he intends to depose) and defendants should have received the
Freedom of Information Act request materials from the Federal Bureau of Prisons regarding
plaintiff’s McKean records and obtained those records and completed whatever discovery results
from those items. This Court, however, does not comment at this time as to the means or
methods plaintiff may use to complete his discovery. As both parties note (e.g., Docket No. 122,
Pl. Response at page 3 of 8 ¶ 6; Docket No. 109, Defs. Atty. Decl. ¶ 12; Docket No. 110, Defs.
Atty. Decl. ¶ 30), there has been delays in prosecuting this case. It is hoped that no further
motion practice will occur to delay this action further.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 105) for a protective Order is
denied; defendants’ cross-motion to compel execution of the Certification of Identity (Docket
No. 111) is granted, plaintiff is to execute the Certification of Identity (without alteration)
within thirty (30) days of entry of this Order; plaintiff’s motion (Docket No. 107) for leave to
amend the Complaint is granted in part, as specified above; plaintiff’s motions (Docket

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Nos. 113, 121) to compel are denied without prejudice. Plaintiff is to serve and file his
Amended Complaint (as described above) within fourteen (14) days of entry of this Order.
An amended Scheduling Order (cf. Docket No. 85) (as stated above) is so ordered.
This Court will address in a separate Report & Recommendation the last remaining
motion, plaintiff’s motion for sanctions (Docket No. 126; see Docket No. 128).
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
July 2, 2015

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