Romano v. Ulrich et al
Filing
58
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 55 Motion to Appoint CounselPlaintiff's Motion to Compel (Docket No. 34) is denied in part as stated in the Order. Plaintiff's Motion to appoint counsel (Docket No. 55) is denied.Copy of Order mailed to plaintiff at Elmira Correctional Facility by Chambers. So Ordered. Signed by Hon. Hugh B. Scott on 11/22/2016. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY ROMANO,
Plaintiff,
Hon. Hugh B. Scott
13CV633W
v.
Order
KEVIN ULRICH, et al.,
Defendants.
Before the Court is defendants’ submission of their personnel records for in camera
inspection by this Court (see Docket No. 42; see also Docket No. 34, Pl. Motion to Compel).
This Court ordered defendants to submit their personnel records for in camera inspection to
determine which items (if any) would be produced to plaintiff (Docket No. 45), with the records
marked with Bates numbering for better identification of individual items. Following
assignment of this case to Judge Elizabeth Wolford (Docket No. 36), this case was referred by
Judge Wolford for pretrial proceedings (Docket No. 38).
While this motion is pending, plaintiff’s pro bono counsel orally moved to withdraw and
that request was granted (Docket No. 52). Plaintiff later moved again (cf. Docket Nos. 3, 11,
motions; Docket Nos. 4, Order denying appointment, 12, 21-22, Order granting appointments)
for appointment of new pro bono counsel (Docket No. 55). This Order also considers this
motion. Later, while this motion was pending, defendants moved for summary judgment
(Docket No. 56); that motion is pending before Judge Wolford.
BACKGROUND
This is an inmate’s civil rights action (commenced originally pro se). Plaintiff here
alleges that, on February 17, 2011, eleven corrections officers at Attica Correctional Facility took
turns assaulting him (see Docket No. 1, Compl.; Docket No. 4, Order of Oct. 15, 2013, at 1-2).
After appointing counsel for plaintiff (Docket No. 20), plaintiff served his First Request
for Production of Documents, with one request seeking “all documents relating to each
Defendant’s employment history with DOCCS, including, without limitation, complete
employment and/or personnel files, resumes, qualifications, drug tests, as well as all documents
relating to each Defendant’s disciplinary record, training, activities, and/or position history while
employed by DOCCS,” (Docket No. 34, Ex. A, Request No. 6). Some of these personnel files
have a covering notice that “the attached documentation contains personal identifying
information on a Department of Corrections and Community Supervision employee and is
intended only for the official use of the individual or entity to whom it is addressed. Any
unauthorized disclosure, dissemination, distribution or copying of this documentation is strictly
prohibited. This documentation must be secured from inmate access” (e.g., Bates Personnel
No. 000437).
Plaintiff’s counsel later moved to withdraw, which was granted (Docket No. 52).
Plaintiff then moved for appointment of new pro bono counsel (Docket No. 55).
To date, this Court received and reviewed nine1 of the eleven defendants’ personnel
records.
1
Defendants Jeffrey Hazard, Brian Feeney, Jeffrey Lacapruccia, Kevin Ulrich, Joseph Cinaci, Rory Bell,
Gregory Carney, Jeffrey Miller, and Mark Cunningham.
2
DISCUSSION
I.
Discovery
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.
Civ. P. 26(b)(1).
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
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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.
Defendants here essentially seek a protective Order as to what (if anything) they need to
produce from their respective personnel files, seeking a determination of items from those files
that are relevant to this action and (implicitly) the manner for any production that is ordered.
After completing in camera review, certain classes of documents within each defendant’s
personnel file are relevant to this action and should be produced to plaintiff’s counsel. Some of
those documents include probationary and training evaluations of defendants, memoranda
acknowledging their receipt of the employees’ manual or familiarity with facility’s features.
Attached to this Order is a spreadsheet listing particular Bates number pages that ought to be
produced if plaintiff had counsel. Also reviewed, but deemed not relevant in this case are the
assignment memoranda, data forms (where employees disclosed addresses, contact information
and the like), copies of photo identification cards, pension benefit forms, and firearm permit
applications. Documents that postdate the February 2011 incident also generally were deemed
irrelevant. Defendants should produce these documents that contain information that is to be
redacted consistent with Federal Rule of Civil Procedure 5.2(a) as necessary to delete references
to Social Security numbers, birth dates, financial account numbers, and (if identified) minor’s
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names. This pattern of disclosure can inform defendants as to the two defendants’ (Gary
Coviello and Daniel Leonard) personnel records that were not provided for in camera inspection.
Ideally, this production should be plaintiff’s attorneys’ eyes only out of respect for
defendants (and DOCCS’s) concern about disseminating sensitive personnel information of
corrections staff to an inmate, without prejudice to plaintiff (through counsel) raising objections
to this limitation. A problem arises, however, that with plaintiff currently proceeding pro se and
this Court has yet to act on plaintiff’s renewed motion for appointment of pro bono counsel
(Docket No. 55, discussed below), the personnel records plaintiff seeks would have to go directly
to him, raising the security concerns defendants made in seeking in camera inspection before any
records are produced to an inmate. Therefore, absent appointment of new pro bono counsel,
plaintiff’s motion to compel production of these personnel records is denied in part; actual
production of documents (even with redactions noted above for producing to counsel) to plaintiff
is denied, but defendants will produce to plaintiff a privilege log (based initially on the Bates
numbered documents listed on the attached spreadsheet, and like documents in these personnel
files), identifying documents that would have been produced to counsel under the terms of this
Order so plaintiff learns of the existence of that document.
II.
Re-Appointment of Pro Bono Counsel
Plaintiff renews (see Docket Nos. 3, 11) his application for appointment of pro bono
counsel (Docket No. 55). This Court has found two firms to represent plaintiff, but one attorney
learned of a conflict and a breakdown in attorney-client communication with the second firm led
to plaintiff’s renewed application (see Docket Nos. 52, 54).
5
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants,
Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).
Assignment of counsel in this matter is clearly within the judge’s discretion, see In re MartinTrigona, 737 F.2d 1254 (2d Cir. 1986). The factors to be considered in deciding whether or not
to assign counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d
Cir. 1986). Counsel may be appointed in cases filed by indigent plaintiffs where it appears that
such counsel will provide substantial assistance in developing petitioner’s arguments, the
appointment will otherwise serve the interests of justice, and where the litigant has made “a
threshold showing of some likelihood of merit,” Cooper v. A. Sargenti Co., 877 F.2d 170, 174
(2d Cir. 1989). As noted by Magistrate Judge Payson of this Court, “the Court must consider the
issue of appointment [pro bono of counsel] carefully, of course, because ‘every assignment of a
volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a
deserving cause,’” Pagan v. Sheppard, No. 13CV6150, 2013 U.S. Dist. LEXIS 145367, at *3
(W.D.N.Y. Oct. 3, 2013) (Payson, Mag. J.) (quoting Cooper, supra, 877 F.2d at 172). Also this
very Court has observed that
“there is a cost to the Court in expended good will with the bar in using multiple
appointments of counsel on a single case, especially appointment for a difficult
litigant. Finding attorneys to accept these cases, cf. [Fed. R. Civ. P. 83.1(g)], is
difficult and, having been handled by other counsel, makes the case more difficult
to reassign,”
Ashcroft v. Department of Corr., No. 05CV488, 2008 U.S. Dist. LEXIS 7624, at *12-13
(W.D.N.Y. Sept. 18, 2008) (Scott, Mag. J.). It is a “wasteful expenditure of scarce resources,”
Smolen v. Corcoran, No. 10CV6040, 2013 U.S. Dist. LEXIS 113302 (W.D.N.Y. Aug. 12, 2013)
6
(Telesca, J.), to have multiple appointments of pro bono counsel for the same litigant, see
Ashcroft, supra, 2008 U.S. Dist. LEXIS 7624, at *12-13.
The Court has reviewed the facts presented herein in light of the factors required by law.
Based on this review, plaintiff’s motion for appointment of counsel is DENIED WITHOUT
PREJUDICE AT THIS TIME. While plaintiff’s circumstances makes self-representation
difficult, his behavior with appointed counsel makes expending the scarce resource of volunteer
attorney time problematic. This case is at the end of the discovery stage, ordinarily a stage
where counsel’s assistance is less critical. But in this case, the personnel records sought by
plaintiff would have been provided through counsel (to meet defense security concerns). While
these items (training records and employee evaluations) would have been discoverable through
attorneys’ eyes only, this Court finds that the materials reviewed in camera discussed above may
be of minimal assistance to plaintiff and appointment of new counsel at this time is not
warranted. Plaintiff would be provided a privilege log from defendants, and he can argue about
production to him directly of those items. Therefore, the absence of appointed counsel at this
time would not prejudice him. Factually, this case differs from Ashcroft, supra, wherein this
Court appointed a new attorney for the plaintiff; there, the issue was plaintiff’s access to court
was solely through counsel and his condition and situation were such that the only access that
plaintiff had was through appointed counsel and his condition and situation were such that the
only access that plaintiff had was through appointed counsel, id. at *1-2, 4 (plaintiff was
allegedly blind and sensitive to light, such that wraparound sunglasses and other equipment were
ordered for plaintiff in order for him to attend telephone conferences with the Court). Also, in
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Ashcroft, new counsel was readily found, see id. at *15. His renewed request is denied at this
time.
CONCLUSION
For the reasons stated above and based upon this Court’s in camera review, so much of
plaintiff’s motion to compel (Docket No. 34; see Docket No. 42) seeking the pages identified
from defendants’ reviewed personnel files would be produced to plaintiff’s counsel redacted as
necessary under Rule 5.2(a); these items are produced for attorneys’ eyes only. Absent counsel,
however, plaintiff’s motion to produce is denied in part. Instead of production of these
documents directly to plaintiff while an inmate, defendants shall produce a privilege log
identifying the documents listed by Bates number in the attachment to this Order and like
documents from the defendants’ personnel files.
Defense counsel shall contact Chambers and arrange for retrieval of the in camera
files from Chambers. Unless their personnel files contain items not seen in the first nine
defendants’ files, the files of defendants Coviello and Leonard need not be produced for in
camera inspection; defendants, however, shall include items from those files that should be
revealed in the privilege log for other defendants’ personnel files. If, however, defendants are
unsure which documents from Coviello and Leonard’s files need to be listed in the privilege log,
they may submit those files for in camera inspection.
8
Plaintiff’s renewed motion for appointment of pro bono counsel (Docket No. 55) is
denied.
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
November 22, 2016
Attach.: spreadsheet of Bates numbered pages that ought to be produced
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A
Bates No.
Personnel 000
1
2-10
11-17
18
20-22
23-36, 129-45
39, 148
50
52-54, 161-63
60-64
66
67
72
75
86-89
90-91
94-97
98-101
102-05
106-08
109-19
120-26
127
B
193-203
204-05
206-07
208-09
210-11
212-13
214-15
236-37
240
246
255, 273
270
278-79
302-03
304-06
308-15
316-18
319-26
328
329
330-47
348-49
353
357
358
361-62
366
368
374
415-16
418
419-34
437
453
454
455
456-61
463-92
500-03
544
547
553
567
569
579-608
609-16
642
651-52
656
665-66
676
678-79
689
694
697
714-38
754
762
765
779-80
790
799-800
803
807
808
809
814-45
846-52
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