Jackson v. Conway et al

Filing 26

ORDER re 19 MOTION to Compel filed by Joseph Jackson. Signed by Hon. Jeremiah J. McCarthy on 5/14/15. (Court has mailed a copy of this order to plaintiff).(DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JOSEPH JACKSON (05-B-1287),
ORDER
Plaintiff,
v.

13-CV-00004-RJA-JJM

CHRISTOPHER MONIN and ERIC
WAGNER,
Defendants.
_________________________________________
Plaintiff, an inmate, commenced this 42 U.S.C. §1983 action pro se against
defendants Christopher Monin and Eric Wagner, employees of the New York State Department
of Corrections and Community Supervision (“DOCCS”), alleging retaliation and excessive force
from a May 6, 2012 incident. Amended Complaint [8],1 Claim II.2 Before me is plaintiff’s
April 30, 2015 motion to compel [19] responses to his December 1, 2014 document demands and
interrogatories. Jackson Affidavit [19], p. 4 of 8, ¶5. Rather than setting a briefing schedule on
that motion, I scheduled conference for May 13, 2015 in an attempt to address the motion
informally. May 5, 2015 Text Order [20]. In advance of that conference, defendants filed
interrogatory responses [21, 22] and their response to plaintiff’s request for production of
documents [24].
At the May 13, 2015 conference I raised some preliminary issues concerning
defendants’ responses to plaintiff’s discovery demands that I wanted the parties to address, and

1

Bracketed references are to the CM/ECF docket entries.

2

All other claims and defendants have been dismissed. See May 28, 2014 Order [10].

upon further reflection, there are additional issues I would also like the parties to address.
Therefore, by May 28, 2015 defendants shall submit a letter brief addressing the following:
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Whether defendants have waived their objections to plaintiff’s discovery

demands by failing to timely respond to plaintiff’s document demands. See Land Ocean
Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 237 (W.D.N.Y. 1998) (“[A] failure to
respond or object to a discovery request in a timely manner waives any objection which may
have been available”).
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In response to plaintiff’s request for all grievances and unusual incident

reports against the defendants, they object that these requests are overly burdensome since
DOCCS does not maintain these materials sorted by staff involved or by subject matter. See [24],
Responses to Request Nos. 2 and 3. Defendants shall address whether it would be unduly
burdensome to produce these materials for the one-year period prior to the incident, especially
where DOCCS elects to maintain these records in a fashion that makes them burdensome to
retrieve. See Newman & Associates v. J.K. Harris & Co., LLC, 2005 WL 3610140, *1
(S.D.N.Y. 2005) (“[A] party’s failure to maintain its documents in a searchable manner does not
ordinarily justify its invoking what is, in effect, a self-created burden as an excuse not to produce
otherwise relevant documents”). Compare with Dorsey v. New York, 2011 WL 4529115, *1
(W.D.N.Y. 2011) (“It has been repeatedly held by this court that because inmate grievances and
complaints filed against DOCS employees are filed according to the inmates making the
grievances or complaints, the search required to identify the DOCS employees against whom
such grievances or complaints are made would be unduly burdensome and time-consuming, and
that such burden would outweigh any benefits provided by the requested discovery”).
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--

In response to many of plaintiff’s document requests, defendants object

that the documents sought are maintained by DOCCS, a non-party, and that they are not in the
possession, custody, or control of the individual defendants. See, e.g., [24], Responses to Request
Nos. 1 and 2. Defendants shall address whether this is a meritorious objection given the
relationship between the individual defendants and DOCCS and that the individual defendants
are sued in their official capacities (Amended Complaint [8], p. 3 of 27, ¶¶7, 8). See Gross v.
Lunduski, 304 F.R.D. 136, 141-44 (W.D.N.Y. 2014) (finding a similar objection to be without
merit).
Plaintiff may file a letter response to defendants’ submission by June 8, 2015 and
these submissions will be addressed at a conference scheduled for June 15, 2015 at 10:30 a.m.
Defendants’ counsel shall arrange for plaintiff’s telephonic participation in the June 15, 2015
conference and defendants’ counsel may also participate by telephone upon advance notice to
chambers. The court will initiate the call.

SO ORDERED.
Dated: May 14, 2015

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

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