LionKingzulu v. Jayne et al

Filing 46

DECISION AND ORDER re 42 MOTION to Compel filed by Arkil LionKingzulu. Signed by Hon. Jeremiah J. McCarthy on 12/16/13. (Court has mailed a copy of this order to plaintiff).(DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
ARKIL LIONKINGZULU, (96-A-4462),
formerly known as ARKIL JOHNSON,

DECISION AND ORDER
12-CV-00845(A)(M)

Plaintiff,
v.
PAUL JAYNE, et al.,
Defendants.
___________________________________
This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial
proceedings [13].1 Before me is plaintiff’s motion to compel [42]. Oral argument was held on
December 12, 2013. For the following reasons, plaintiff’s motion is denied in part and my
decision is reserved in part pending review of defendants’ in camera submissions.

BACKGROUND
Plaintiff, an inmate, commenced this action pro se pursuant to 42 U.S.C. §1983,
alleging that he was subjected to excessive force by defendants on November 26, 2010, while
shackled in the draft area of the Southport Correctional Facility. Complaint [1]. On or about
November 3, 2013, plaintiff served his First Request for Production of Documents [31], and
defendants responded on or about November 19, 2013 [37]. Dissatisfied with certain aspects of
defendants’ production, plaintiff moves to compel the following items requested in his First
Request for Production of Documents:

1

Bracketed references are to the CM/ECF docket entries.

“1.

Watch commander log book entry pertaining to the incident on
November 26, 2010.

3.

Any and all rules, regulations, and policies of the New York Department
of Corrections in relation to when a prison guard is authorized to use force
against a prisoner.

4.

An inspection of Correction Law 137(5).

6.

Photographs of entire intake area/draft area.

7.

Production of policy statements.

8.

Production of prison rules and employee manual.

9.

Any and all complaints or grievances from 2011 to the present in relation
to defendants Jayne, Miller, Herrick, Marshall pertaining to excessive use
of force.

10.

Any and all policies, directives or instructions to staff concerning use of
force by Southport security staff.”2

In addition to the production of this discovery, plaintiff’s motion to compel seeks
“$10.000 as reasonable expenses”. Plaintiff’s Motion [42], p. 2.

ANALYSIS
Both Fed. R. Civ. P. (“Rule”) 37(a)(1) and Loc. R. Civ. P. 7(d)(4) require the
parties to meet and confer before moving to compel discovery. It is undisputed that plaintiff
failed to comply with this requirement before filing his motion. Plaintiff is cautioned that future

2

The paragraph numbering in plaintiff’s motion to compel generally corresponds to the
paragraph numbering of Plaintiff’s First Request for Production of Documents.

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failures to abide by this requirement do so may result in the denial of motions to compel
discovery.

A.

Request Nos. 1, 4 and 6
Defendants respond that there is no watch commander log book entry for an

incident on November 26, 2010 (Levine Declaration [43], ¶7) and no existing photographs of the
draft area. Id., ¶11.3 Based upon defendants’ representations, these aspects of plaintiff’s motion
are denied, as moot. To the extent that defendants have provided plaintiff with the text of
Correction Law §137(5), this aspect of plaintiff’s motion is also denied, as moot.

B.

Request Nos. 3, 8 and 10
Defendants shall produce for my in camera review unredacted copies of Directive

4944 ([43], Ex.A) and portions of the Employee Manual relating to the use of force.

C.

Request No. 7
Defendants respond that “there is no known document”, entitled “policy

statement”. Levine Declaration [43], ¶12. Therefore, this aspect of plaintiff’s motion is denied.

3

Although plaintiff explained at oral argument that he is seeking to have defendants take
photographs of the draft area, this was not requested in his discovery demand.

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D.

Request No. 9
Plaintiff seeks to compel production of “[a]ny and all complaints or grievances

from 2011 to the present in relation to defendants . . . pertaining to excessive use of force”. [42]
¶9. Defendants respond that grievances relating to alleged excessive force incidents after the
incident at issue are not relevant and that locating the grievances would be unduly burdensome
since the grievances are organized by inmate, rather than by the corrections officer involved.
Levine Declaration [43], ¶13. I agree with defendants.
“Prior complaints made against the defendants . . . are discoverable in §1983 civil
rights actions so long as the complaints are similar to the constitutional violations alleged in the
complaint or are relevant to the defendant’s truth or veracity.” Simcoe v. Gray, 2012 WL
1044505, *3 (W.D.N.Y. 2012) (Feldman, M.J.). However, plaintiff offers no explanation of the
relevance of complaints against defendants occurring after the alleged November 26, 2010
excessive force incident. See Morales v. Town of Glastonbury, 2011 WL 3490080, *2 (D.Conn.
2011) (limiting discovery of civilian complaints regarding excessive force against the defendants
to complaints prior to the date of the alleged incident); Messa v. Woods, 2008 WL 2433701,
*3-4 (N.D.N.Y. 2008) (same). In any event, even if plaintiff could establish the relevance of this
discovery, “the burden of searching all inmates’ files for grievances against specific defendants is
unduly burdensome”. Willey v. Kirkpatrick, 2011 WL 4368692, *5 (W.D.N.Y. 2011) (Payson,
M.J.). Therefore, this aspect of plaintiff’s motion is denied.

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CONCLUSION
For these reasons, plaintiff’s motion to compel [42] is denied, except to the extent
that it seeks production of an unredacted copy of Directive 4944 and portions of DOCCS’
Employee Manual relating to the use of force. Defendants shall produce these materials for my
in camera review. If I determine from my in camera review of these materials that production to
plaintiff is warranted, I will provide defendants with notice and an opportunity to be heard. I will
also defer my determination of plaintiff’s request for costs until the remaining aspects of his
motion are resolved.

SO ORDER
DATED:

December 16, 2013

/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge

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