Gambino v. Payne et al

Filing 304

DECISION AND ORDER (1) denying plaintiff's motion for sanctions 283 , (2) denying plaintiff's motion for reconsideration 293 ; (3) denying plaintiff's motion to stay all case management order deadlines pending the release of certain documents purportedly being held by the Bureau of Prisons 295 ; (4) denying plaintiff's motion to compel the Bureau of Prisons to produce documents 296 ; (5) granting in part and denying in part plaintiff's motion to compel defendants to produce documents; and (6) denying plaintiff's motion to stay this action pending the outcome of his interlocutory appeal to the Second Circuit 300 . The Fifth Amended Case Management Order 289 remains in effect. Signed by Hon. Michael J. Roemer on 10/5/2016. (RAZ) Copy of docket entry and Decision and Order mail to plaintiff at Fort Dix Correctional Facility.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
DAVID AUGUST GAMBINO,

12-CV-824-LJV-MJR
DECISION AND ORDER

Plaintiff,
-vCAPTAIN PAYNE, et al.,
Defendants.
_______________________________
This case has been referred to the undersigned for all pre-trial matters, including
the hearing and disposition of non-dispositive motions. (Dkt. No. 221). Before the
Court are six motions filed by plaintiff David August Gambino:

(1) a motion for

sanctions (Dkt. No. 283); (2) a motion for reconsideration (Dkt. No. 293); (3) a motion to
stay all case management order deadlines pending the release of certain documents
purportedly being held by the Bureau of Prisons, a non-party to this action (Dkt. No.
295); (4) a motion to compel the Bureau of Prisons to produce documents (Dkt. No.
296); (5) a motion to compel defendants to produce documents (Dkt. No. 298); and (6) a
motion to stay this action pending the outcome of Gambino’s interlocutory appeal to the
Second Circuit (Dkt. No. 300). 1
BACKGROUND
Plaintiff David August Gambino, a pro se inmate at the Fort Dix Federal
Correctional Institution, commenced this 42 U.S.C. §1983 action in 2012. (Dkt. No. 1).
Defendants include the County of Niagara and several current and former employees of

1

The Court set a briefing schedule on Gambino’s motion for sanctions and his motion to compel
defendants to produce documents, and both motions are now fully briefed. The Court did not request the
parties to brief the other four motions.

the Niagara County Jail. Gambino alleges to be a “self proclaimed adherent of the
Hebrew religion [who is] in the long process of conversion to Judaism.” (Dkt. No. 233 at
7). 2 Among other claims, Gambino alleges that while he was in the custody of the Jail
awaiting disposition of his federal criminal charges, defendants prohibited him from
covering exposed areas of the shower doors while he showered and tampered with his
kosher meals, all in violation of his religious beliefs. (Id. at 6-39). Gambino’s pending
motions are addressed below.
DISCUSSION
I.

Motion for Sanctions

In a prior motion for sanctions, Gambino accused defendants of failing to name
his mental health counselor, Anthony Massaro, in response to an interrogatory asking
defendants to identify employees of the Niagara County Jail.

(Dkt. No. 126).

In

opposition to that motion, defendants argued that they correctly declined to identify
Massaro because Massaro is an employee of the Niagara County Department of Mental
Health, not the Jail. (Dkt. No. 129 ¶14). In a Report and Recommendation dated July
21, 2015, Magistrate Judge Scott, the Magistrate Judge initially assigned to this action,
accepted defendants’ argument and recommended that Gambino’s motion for sanctions
be denied. (Dkt. No. 146 at 8, 12). 3 In late 2015 or early 2016, after Judge Scott had
issued his report and recommendation, defense counsel contacted Massaro regarding
Gambino’s lawsuit, and Massaro confirmed that he provided mental health counseling
to Gambino at the Jail on behalf of the Department of Mental Health. (Dkt. No. 294
¶17). Defense counsel thus had Gambino execute authorizations for the Department of
2

Page number citations for docketed items refer to the page number(s) assigned by CM/ECF.
Gambino’s objections to Judge Scott’s report and recommendation (Dkt. No. 158) remain pending
before the District Judge.
3

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Mental Health to release his treatment records.

(Id. ¶¶18-20).

Defense counsel

received the records from the Department in April 2016 and produced them to Gambino
shortly thereafter. (Id. ¶¶19-20). The instant motion seeks to sanction defendants for
not producing Massaro’s records at the outset of the litigation — specifically, as part of
their Fed. R. Civ. P. (“Rule”) 26(a) initial disclosures or as a supplement thereto. (Dkt.
Nos. 283, 297).

According to Gambino, defendants’ delay in producing Massaro’s

records “hindered [his] ability to seek justice” in this action. (Dkt. No. 283 at 6).
Sanctions are permitted if a party “fails to provide information or identify a
witness as required by Rule 26(a) or (e) . . . unless the failure was substantially justified
or is harmless.” Rule 37(c)(1). Under Rule 26(a), a party must, without awaiting a
discovery request, provide:
[A] copy — or a description by category and location — of all
documents, electronically stored information, and tangible
things that the disclosing party has in its possession,
custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.
Rule 26(a)(1)(A)(ii) (emphasis added).

Under Rule 26(e), a party must timely

supplement or correct a Rule 26(a) disclosure if the party learns that the disclosure is
incomplete or incorrect in some material respect. Rule 26(e)(1)(A).
Here, defendants were not in the possession, custody, or control of Gambino’s
mental health records until April 2016, when defense counsel obtained the records from
the Department of Mental Health pursuant to authorizations executed by Gambino. See
Nowlin v. 2 Jane Doe Female Rochester N.Y. Police Officers, No. 11CV712S, 2013 WL
3148308, at *4 (W.D.N.Y. June 19, 2013) (“The criminal records sought by plaintiff from
the [ ] defendants were not in defendants’ possession, custody or control and would not

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be until plaintiff executed the necessary releases to unseal them.”) (internal quotation
marks and citation omitted).

After defense counsel received the records from the

Department of Mental Health, he immediately produced them to Gambino. Defendants
could not have obtained the records prior to Gambino authorizing their release because
the Niagara County Sheriff’s Office is separate and distinct from the Department of
Mental Health, and Sheriff’s Office employees cannot access the Department of Mental
Health’s records.

(Dkt. No. 294-1 (Affidavit of Daniel M. Engert, Chief Deputy-Jail

Administrator at the Niagara County Jail) ¶7). 4

Therefore, because defendants

produced Gambino’s mental health records as soon as the records were in their
possession, custody, and control, see Rule 26(a)(1)(A)(ii) and (e)(1)(A), defendants
cannot be sanctioned under Rule 37(c)(1). If Gambino wished to receive his mental
health records at an earlier date, he could have made his own request to the
Department of Mental Health to release the records.

He did not have to wait for

defendants to obtain the records for him.
Gambino also seeks to sanction defendants for allegedly falsely stating to the
Court that Gambino never received mental health treatment at the Jail. (Dkt. No. 283 at
2-3 (listing defendants’ statements)). Gambino misconstrues defendants’ statements to
the Court. Defendants actually stated that a review of their own medical records did not
indicate that Gambino received mental health treatment at the Jail. (Id.). Defendants’
statements were not false because defendants did not have Gambino’s mental health
records at the time of the statements, making it plausible that their own records did not
4

The Department of Mental Health appears to be an arm of defendant County of Niagara, making
it possible that Massaro’s records were in the possession, custody, and control of the County from the
moment they existed. However, because the County was not named as a defendant in this action until
April 15, 2016, it cannot be sanctioned for failing to produce the records before that date. (See Dkt. No.
259 (order substituting the County of Niagara for the Niagara County Sheriff’s Office)).
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alert them to the fact that Gambino received mental health treatment at the Jail.
Therefore, Gambino’s motion for sanctions is denied in its entirety.
II.

Motion for Reconsideration

Gambino moves the Court to reconsider its prior order (Dkt. No. 288) denying his
motions to compel discovery, stay this action, and sanction defendants. (Dkt. No. 293). 5
The standard for granting reconsideration is strict. Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). “[R]econsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked —
matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court.”

Id.

“The major grounds justifying reconsideration are an

intervening change of controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks and citation
omitted). “A motion for reconsideration is not to be used as a means to reargue matters
already argued and disposed of by prior rulings or to put forward additional arguments
that a party could have made but neglected to make . . . .” Brown v. Middaugh, No. 96CV-1097, 1999 WL 242662, at *1 (N.D.N.Y. Apr. 21, 1999).
Gambino’s motion for reconsideration rehashes arguments already considered
and rejected by the Court.

Gambino has not identified an intervening change of

controlling law or any new evidence that might warrant reconsideration. The Court’s
prior order was correct in all respects and did not work a manifest injustice upon
5

Specifically, the Court’s prior order denied these six motions: (1) an “emergency motion to take
leave” (Dkt. No. 249); (2) a “motion to take leave due to plaintiff being transfered [sic]” (Dkt. No. 251); (3)
a motion to compel amended responses to certain requests for admission (Dkt. No. 265); (4) a motion to
compel documents (Dkt. No. 267); (5) a “motion for court order for immidiate relaese [sic] of mental health
records” (Dkt. No. 284); and (6) a motion for sanctions (Dkt. No. 93). (Dkt. No. 288).

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Gambino. Also without merit is Gambino’s argument that the Court erred by declining to
hear oral argument on his motions. There is no right to oral argument on motions in civil
actions. Blossom S., LLC v. Sebelius, No. 13-CV-6452L, 2014 WL 204201, at *1 n.1
(W.D.N.Y. Jan. 17, 2014). The Court carefully reviewed Gambino’s prior motions and
acted well within its discretion in opting not to hear oral argument on any of them. See
Katz v. Morgenthau, 892 F.2d 20, 22 (2d Cir. 1989) (“A district court’s determination not
to avail itself of . . . oral argument . . . rests squarely within its discretion.”) (citations
omitted). Therefore, Gambino’s motion for reconsideration is denied in its entirety.
III.

Motion to Stay All Case Management Order Deadlines Pending the
Release of Certain Documents Purportedly Being Held by the Bureau of
Prisons

This motion asks the Court to, in effect, stay the entire action pending the release
of certain legal materials that Gambino claims went missing when the Bureau of Prisons
transferred him from the Cumberland Federal Correctional Institution to the Fort Dix
Federal Correctional Institution. (Dkt. No. 295).
“[T]he power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Louis Vuitton Malletier S.A. v. LY USA,
Inc., 676 F.3d 83, 96 (2d Cir. 2012) (alteration in original) (quoting Landis v. N. Am. Co.,
299 U.S. 248, 254 (1936)). In deciding whether to grant a stay, the Court balances the
moving party’s need for a stay against the need “to secure the just, speedy, and
inexpensive determination of every action and proceeding.” Rule 1 (emphasis added);
see also Davidson v. Goord, 215 F.R.D. 73, 83 (W.D.N.Y. 2003).

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Gambino has not shown the need for a stay here. Since being transferred to Fort
Dix, he has filed several motions and other documents with the Court without the benefit
of the materials that purportedly went missing during his transfer. On the other hand,
there is a strong need to secure the just and speedy determination of this action. This
case has been pending for over four years, and the parties are on their Fifth Amended
Case Management Order. (See Dkt. No. 289). This litigation has to come to an end at
some point. The need to secure the just, speedy, and inexpensive determination of this
matter thus outweighs Gambino’s need for a stay, and his motion is denied.
IV.

Motion to Compel the Bureau of Prisons to Produce Documents

Gambino moves to compel the Bureau of Prisons to produce certain legal
materials that he contends went missing when he was transferred to Fort Dix. (Dkt. No.
296). The Court is without jurisdiction to grant Gambino’s requested relief because the
Bureau of Prisons is not a party to this action. See Yoonessi v. N.Y. State Bd. for Prof’l
Med. Conduct, No. 03-CV-871S, 2005 WL 645223, at *26 (W.D.N.Y. Mar. 21, 2005)
(“This Court is without jurisdiction to consider Plaintiff’s request for relief with respect to
those additional persons and/or entities against whom no action has been
commenced.”), aff’d, 162 F. App’x 63 (2d Cir. 2006). Accordingly, Gambino’s motion to
compel the Bureau of Prisons to produce documents is denied.
V.

Motion to Compel Defendants to Produce Documents

The instant motion to compel (Dkt. No. 298) relates to Gambino’s third cause of
action, which alleges in part that defendants tampered with his kosher meals when he
was incarcerated at the Jail (Dkt. No. 233 at 17-39). During the course of discovery,
Gambino learned that the Jail contracted with a company by the name of Trinity

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Services Group “to assist [the Jail] in preparing the menu for regular meals, special
meals and kosher meals.” (Dkt. No. 298 at 2-3). Gambino now moves to compel
defendants to produce “the Trinity Groups [sic] menu and nutrional [sic] value
information and any information on kosher food in any form” as well as the Jail’s
contract with Trinity Services Group. (Id. at 4-5).
Defendants state that they have already “produced everything in their possession
concerning (1) the kosher menu and/or meal plans used at the Niagara County Jail
between January 1, 2012 and June 29, 2012 and (2) the nutritional value of kosher
menu items provided to inmates between January 1, 2012 and June 29, 2012.” (Dkt.
No. 302 ¶29). 6 Because the Court has no reason to doubt defendants’ representation,
Gambino’s request for this information is denied. As for the Jail’s contract with Trinity
Services Group, defendants oppose its production solely on the basis that Gambino
allegedly never requested it during discovery.

(Id. ¶8).

Contrary to defendants’

argument, the contract falls within Gambino’s request for documents “relevant to [his]
kosher diet” (Dkt. No. 25 at 4) because the Jail contracted with Trinity Services Group to
assist it in preparing the menu for kosher meals (Dkt. No. 302 ¶24). Within twenty days
of entry of this order, defendants shall produce the contract(s) between the Jail and
Trinity Services Group for the period January 1 to June 29, 2012.
VI.

Motion to Stay this Action Pending the Outcome of Gambino’s
Interlocutory Appeal

On August 25, 2016, Gambino filed a notice of interlocutory appeal of “dismissed
claims.” (Dkt. No. 299). The notice does not specify any particular order or judgment;
6

Although a kosher menu produced by defendants bears the date August 19, 2015, defendants
state that this date represents the date on which the menu was e-mailed (presumably from Jail personnel
to defense counsel) in connection with defendants’ document production. (Dkt. No. 302 ¶16).
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rather, it generally objects to this Court’s handling of discovery. The instant motion
seeks to stay this action pending the outcome of the appeal. (Dkt. No. 300).
28 U.S.C. §1292 authorizes appeals of certain interlocutory orders, but that
statute does not apply here because this case does not involve an injunction,
appointment of a receiver, or an admiralty dispute, see 28 U.S.C. §1292(a), and the
Court has not entered an order certifying an appeal, see id. §1292(b). Absent any
apparent basis for an interlocutory appeal, the Court declines to stay this action pending
the outcome of the appeal. See Rivera v. Goord, 03CV830, 2006 U.S. Dist. LEXIS
90330, at *1-3 (W.D.N.Y. Dec. 14, 2006) (declining to stay proceedings pending
plaintiff’s interlocutory appeal where plaintiff did not appear to have any basis under 28
U.S.C. §1292 for taking an appeal).
CONCLUSION
For the foregoing reasons, (1) Gambino’s motion for sanctions (Dkt. No. 283) is
denied; (2) Gambino’s motion for reconsideration (Dkt. No. 293) is denied; (3)
Gambino’s motion to stay all case management order deadlines pending the release of
certain documents purportedly being held by the Bureau of Prisons (Dkt. No. 295) is
denied; (4) Gambino’s motion to compel the Bureau of Prisons to produce documents
(Dkt. No. 296) is denied; (5) Gambino’s motion to compel defendants to produce
documents (Dkt. No. 298) is granted in part and denied in part, as set forth herein; and
(6) Gambino’s motion to stay this action pending the outcome of his interlocutory appeal
to the Second Circuit (Dkt. No. 300) is denied. The Fifth Amended Case Management
Order (Dkt. No. 289) remains in effect.

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SO ORDERED.
Dated:

October 5, 2016
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge

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