Torres v. Artus et al
Filing
106
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting in part and denying in part 74 Motion to CompelSo much of plaintiff's motion seeking compelled responses to his initial discovery dema nds are denied as discussed in this Order.Plaintiff's supplemental discovery demands shall be responded to by defendants by 4/22/2016.Copy of Order mailed to plaintiff at Wende Correctional Facility by Chambers.So Ordered. Signed by Hon. Hugh B. Scott on 3/22/2016. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ARMANDO TORRES,
Plaintiff,
Hon. Hugh B. Scott
14CV62S
v.
Order
SUPERINTENDENT DALE A. ARTUS, et al.,
Defendants.
Before the Court is pro se plaintiff’s motion to compel (Docket No. 74), responding to
the objections and responses to his discovery demands. This Court initially presumed that this
document was plaintiff’s response to discovery demands. During a status conference on
March 1, 2016, plaintiff renewed his motion to compel (Docket No. 102). This Court ordered
defendants to respond to the motion within ten days and the motion then would be deemed
submitted (id.). Defendants filed their response on March 11, 2016 (Docket Nos. 104, 1051).
While plaintiff’s motion was pending, defendants moved to dismiss claims against some
of them (Docket No. 83), which was granted (Docket No. 100; see Docket No. 92, Report &
Rec. of Aug. 21, 2015); familiarity with the Report and Recommendation of August 21, 2015, is
presumed.
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Apparently defendants refiled their response to include all defendants. This Court will cite to the latter
document, Docket No. 105, filed on behalf of more parties.
BACKGROUND
This is a pro se civil rights and Americans With Disabilities Act, 42 U.S.C. §§ 12101, et
seq., action in which plaintiff, an inmate currently held in the Wende Regional Medical Unit
(“RMU”) due to his medical condition, seeks access to the Wende Correctional Facility
(“Wende”) law library (contained in a separate building) or reasonable accommodation for his
disability to afford him that access. Plaintiff alleged eleven causes of action. Plaintiff complains
here about events from December 2009 and various dates in 2010, 2011, and 2012 for
misdiagnoses, mistreatment of different ailments he suffered while incarcerated, and placement
in the RMU. Subsequent motions sought to supplement these claims with events from 2013 and
2014 (Docket Nos. 40, 43). Plaintiff is physically unable to walk to the Wende law library.
Within his Complaint (id., Docket No. 1) is his request for preliminary injunction to grant him
access to the law library (id. at 22-23). He essentially claims that defendants deprived him of
reasonable accommodations for his kidney ailment (in violation of the Americans with
Disabilities Act) and misdiagnosed and mistreated that (and other conditions).
Plaintiff filed the original Complaint on January 30, 2014 (Docket No. 1). He then
moved for in forma pauperis status (Docket No. 2), which was granted (Docket No. 5).
Defendants responded to the preliminary injunction requests contained in the Complaint (Docket
Nos. 12, 14), as well as served their Answer to the Complaint (Docket No. 15).
Plaintiff moved for a preliminary injunction and temporary restraining Order (Docket
No. 16) and this Court recommended denying injunctive relief and granting plaintiff’s motion to
amend the Complaint (Docket No. 50). Absent any objections, then-Chief Judge William
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Skretny adopted this Report (Docket No. 53). Plaintiff later moved for reconsideration (Docket
No. 55) but this motion was denied (Docket No. 58).
Meanwhile, plaintiff’s first motion to supplement this Complaint (Docket No. 31) was
granted in part, denied in part (Docket No. 40), which was affirmed by Chief Judge Skretny
(Docket No. 45). Plaintiff filed his notice of appeal from this interlocutory Order (Docket
No. 47) but later wrote to the Court of Appeals to withdraw the appeal (Docket No. 52), which
that court dismissed (Docket No. 63). Plaintiff also filed a second motion to supplement this
Complaint, to allege incidents from 2013 (Docket No. 43); that motion was denied but plaintiff
was to file and serve an Amended Complaint as with fully exhausted claims as well as claims
originally alleged by November 25, 2014 (Docket No. 49). This Court issued a Scheduling
Order, with discovery scheduled to be completed by May 1, 2015, and ordering parties to
exchange initial disclosure (Docket No. 54).
Plaintiff’s Motion to Compel
On January 8, 2015, plaintiff filed his document production demands that he served upon
defendants, seeking 93 categories of documents (Docket No. 60). Defendants sought an
extension of time to respond to these demands (Docket No. 64) noting the “voluminous nature of
the demand” consisting of 93 paragraphs of demands with multiple demands sought from
21 defendants, which was granted (Docket No. 65). On March 25, 2015, defendants served and
filed their responses to these demands (Docket No. 66, hereinafter “Defs. Discovery Response”;
see Docket No. 74, Pl. Motion to Compel, Ex.). Defendants filed a 30-page response with over
400 documents attached as responsive to plaintiff’s demands (Docket No. 66, Defs. Discovery
Response; see Docket No. 105, Defs. Atty. Decl. ¶ 9). In addition to initial disclosure provided
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to plaintiff (Docket No. 62), defendants produced over 4,600 pages of medical records to
plaintiff (Docket No. 105, Defs. Atty. Decl. ¶ 9). On April 9, 2015, defendants supplemented
these responses (Docket No. 69), in a 5-page document, with over 230 pages of attached
documents.
On May 18, 2015, plaintiff filed his motion to compel (Docket No. 74). Essentially,
plaintiff objects to the objections raised by defendants to various demands. During the status
conference of March 1, 2016, plaintiff still sought the policy of Elmira Correctional Facility
(“Elmira”) on the use of restraints for medical transport of inmates; investigation reports from
the New York State Education Department Office of Professions as to defendant Nancy Olsen or
the State Commission of Corrections.
Specifically, plaintiff compels production on Request #1-3, 7-8, 10, 12, 13-15, 18, 19, 2325, 34, 37, 39-41, 42, 43, 60, 62, 65, 66, 67, 69, 75, 82, 78, 79, 80, 81, 87, 90, and 91(see
generally Docket No. 74; Docket No. 105, Defs. Atty. Decl. ¶¶ 10-14, 16, 20-24, 26, 28-32, 35,
43-53). Requests #1-3 involve communications arising in Grievance WDE #32054-09.
Requests #7-8 seek Department of Corrections and Community Supervision (“DOCCS”) policies
on use of restraints on inmates during medical transport. Request #10 sought DOCCS
investigative reports on hemodialysis policies. In Request #12, plaintiff wants “all or any”
DOCCS Pro #3A diet preparation guides when providing “all modified diets”. Requests #13-15
seek federal, state or local laws and regulations regarding handling and disposal of infectious
waste. Next, plaintiff wants in Request #18 any and all investigation matters pertaining to
defendant Olsen with the New York State Education Department, Office of Professions. In
Request #19, plaintiff wants produced documents for Grievance WDE#33369-10 and the alleged
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misconduct of Olsen, but now argues that the wrong Bates numbered documents were produced
but plaintiff eventually found the grievance, as he did for documents responsive to Request #33.
Request #23-25 seek investigation reports from the State Education Department, the United
States Department of Health and Human Services, and Prisoners Legal Services. Request #34
sought investigation reports by the State Health Department in a particular investigation. In
Request #37, plaintiff seeks DOCCS directives or policy regarding the use of ice chips by
dialysis inmates. In Requests #39-41, plaintiff seeks investigations he presented to the
Department of Health, State Commission of Correction, and the State Professional Misconduct
Enforcement System, while in Request #42 plaintiff seeks similar reports from the Commission
of Correction. Request #43 seeks investigation reports from a particular Department of Health
investigator for his complaint in October 2011. Request #60 seeks plaintiff’s medical records
from the Erie County Medical Center from 2009 to present. Request #62 seeks internal
memoranda on typewriting supplies furnished in the RMU. (See generally Docket No. 74, Ex.)
In Request #65, plaintiff seeks Naphcare Inc.’s medical records of his care from 2009.
Request #66 seeks DOCCS agreements and proposals for reconstruction of Wende Correctional
Facility under the Americans with Disabilities Act. Plaintiff in Request #67 seeks the rear
arsenal sign in/sign out logs for Wende from 2009 to note the entry and departure of certain
Naphcare employees (mostly current defendants save Ginger Booth, John Lascala, and Timothy
Gorny). Plaintiff seeks mental health referrals and interviews in 2013 in Request #69. In
Request #75, plaintiff asks for “all and any Erie County medical [sic] Center Hemodialysis Unit
Fresenius Operation Instruction Manual.” Request #82 seeks any and all restrictions on dialysis
patients at Elmira. Request #78 seeks DOCCS contract with Naphcare Inc., including Naphcare
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employee “roast list” and employment hours, while Request #79 seeks similar DOCCS contracts
with Naphcare including treatment in the Erie County Medical Center. In Request #80, plaintiff
wants DOCCS “shop folder” from 2008 to present. Request #81 seeks policies regarding
restraining dialysis inmates in Elmira when these inmates are transported. In Request #87,
plaintiff wants the RMU third floor logs from 2012-14. Request #90 seeks diagrams or outlines
of Wende, depicting (for example) the law library and its work station capacity, gym area bath,
and A-Block and D-Block. Finally, Request #91 seeks the RMU operation manual. (See
generally id.)
For these inadequately answered requests, plaintiff generally argues that defendants or
defense counsel have access to the sought items and that the items sought are relevant to his
claims (see generally Docket No. 74).
Plaintiff included additional demands in this motion (id. at 13-15), seeking internal
Naphcare reprimands from 2009-15; list of Naphcare equipment in the dialysis unit; redacted
inmate grievances on Wende-Naphcare hemodialysis unit; redacted reports of other inmates with
fistula or catheter infections from 2012-13; Naphcare/Wende Dialysis Unit nurse station logs
from 2010-15 for complaints about the cleanliness of that facility; Wende operation manuals for
the dialysis unit and the law library; approvals for construction of the Dialysis Unit from the
Health Department or other approving agencies (id.). During a status conference on July 14,
2015, plaintiff complained that defendants had not received their discovery responses.
Defendants responded that they fully complied with plaintiff’s demands. Plaintiff was to report
at the next conference, on August 27, 2015, whether he had received discovery. (Docket
No. 82.) Given defendants later motion to dismiss (Docket No. 83), the August 27 conference
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was canceled, subject to rescheduling after that motion was considered (Docket No. 88), which
eventually was held on March 1, 2016 (Docket No. 102). Defendants did not file additional
discovery responsive to plaintiff’s supplemental requests (despite further supplementing their
responses to plaintiff’s initial round of discovery requests, Docket No. 85) and did not address
these supplemental requests in response to this motion.
Meanwhile, defendants respond to the motion generally that they complied with
plaintiff’s discovery demands and made appropriate objections to them (Docket No. 105, Defs.
Atty. Decl. ¶ 8). As for plaintiff’s Requests #1-3, defendants argue that they produce documents
related to Grievance WDE #32054-09 in DOCCS possession (id. ¶ 10). Plaintiff’s produced
medical record contained correspondence plaintiff sought with DOCCS medical personnel (id.).
Defendants also argue that this grievance was alleged in the First and Second Causes of Action,
claims that were dismissed as time barred (id.).
As for plaintiff’s request for a policy regarding restraining inmates in medical transport,
his Requests #7 and 8, defendants counter that no such policy exists and provided Directive 4933
(id. ¶ 11; Docket No. 66, Defs. Discovery Response at 6). Similarly, there was no policy for
hemodialysis (Docket No. 105, Defs. Atty. Decl. ¶ 12) (Request #10).
Defendants state that they produced the Pro #A diet prescribed for plaintiff (Request
#12), with production of all other Pro #A diet plans being burdensome (Docket No. 105, Defs.
Atty. Decl. ¶ 13).
On Requests #13-15, defendants next claim they produced regulations regarding handling
and disposal of infectious waste (Docket No. 105, Defs. Atty. Decl. ¶ 14).
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Defendants claimed they produced Olsen’s reports (Request #18) in their supplemental
response (Docket No. 105, Defs. Atty. Decl. ¶ 16; see Docket No. 69, at 233-34 (responding to
Request #31, Bates Nos. 5582-84).
On Request #19, defendants initially produced the sought grievance records (Docket
No. 74, Ex., Response to Request #19, Bates Nos. 4677-4889). They now contend that, despite
the error in Bates numbering, plaintiff found the relevant records produced to him (Docket
No. 105, Defs. Atty. Decl. ¶ 20; see also Docket No. 74, Ex., Bates Nos. 5317-25, responsive to
Request #33, instead of produced Bates No. 5254-5530; id., Pl. Affirm. at 6).
On Request #23-25, 34, 39-42, and 75, defendants argue that plaintiff seeks documents
from them that are in the possession and control of third parties (most state agencies other than
DOCCS) and not in defendants’ possession or control (Docket No. 105, Defs. Atty. Decl. ¶¶ 2122, 24, 26, 44; see id. ¶¶ 28 (Request #43), 17-19), see, e.g., New York v. AMTRAK, 233 F.R.D.
259, 266 (N.D.N.Y. 2006) (fact Attorney General’s office represents defendant does not subject
all state agencies to discovery). They suggest that plaintiff could seek these materials from their
sources via FOIL (e.g., Docket No. 105, Defs. Atty. Decl. ¶ 19), at least from the New York
State agencies. On Request #43, defendants also stated that they produced the sought Fidell
letter (id. ¶ 28).
Regarding plaintiff’s Erie County Medical Center records, defendants responded that
they were seeking those records (Docket No. 74, Ex., Defs. Response to #60).
On Request #62, defendants argue that no responsive records exist (Docket No. 105,
Defs. Atty. ¶ 30).
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As for Requests #65 and 69, defendants argue that that these records were produced with
his medical records (Docket No. 105, Defs. Atty. Decl. ¶¶ 31, 43). Defendants claimed they also
produced the Naphcare contract with DOCCS (id. ¶ 46; Request #78).
On the various logbooks plaintiff seeks (Requests #67, 87), defendants claim these
Requests were overly broad and burdensome, as are plaintiff’s request for proposals for
Americans with Disability Act reconstruction of Wende (Request #66) (Docket No. 105, Defs.
Atty. Decl. ¶¶ 35, 50-51, 32). Defendants next claim sever other categories of requests were
overly broad or burdensome, involving facilities other than Wende (Requests #82, 79, 80-81, 87,
91) (Docket No. 105, Defs. Atty. Decl. ¶¶ 45, 47-49, 50-51, 53).
Defendants object, due to security concerns, to producing diagrams of Wende to an
inmate plaintiff (Docket No. 105, Defs. Atty. Decl. ¶ 52; Request #90).
Defendants also note that some of plaintiff’s requests are for dismissed causes of action
and hence should be denied as moot (e.g., Docket No. 105, Defs. Atty. Decl. ¶¶ 10, 15).
DISCUSSION
I.
Standards
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
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and the identity and location of persons having knowledge of any discoverable matter.” Fed. R.
Civ. P. 26(b)(1) (effective Dec. 1, 2007).
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.
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.
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II.
Plaintiff’s Initial Requests
Many of plaintiff’s requests and defendants’ objections and responses are common and
can be considered together.
A.
Already Produced Items
First, plaintiff’s motion to compel materials defendants have produced (either in initial
disclosure or in response to plaintiff’s requests, including materials produced over objection) is
denied (Request #1-3, 13-15, 18, 19, 43, 65, 69, 78). Defendants claim that they ordered
plaintiff’s Erie County Medical Center records (Docket No. 105, Defs. Atty. Decl. ¶ 29; Request
#60) and it was produced in their second supplemental discovery filed with the Court (Docket
No. 85). Defendants produced 500 pages of that record. Thus, plaintiff’s motion to compel
production of this request (Request #60) is denied.
B.
Defendants’ Lack of Documents and Third Party Documents
Alternatively, although the New York State Attorney General’s office represents
defendants here as well as various state agencies (cf. Docket No. 74, Pl. Affirm. at 6), those
agencies are not parties to this action to compel defense counsel here to produce documents from
them in this case. State agencies are not “entities of each other” as plaintiff argues (id.). Some
of plaintiff’s Requests also are directed to non-New York State agencies that are not represented
by the Attorney General’s office, such as the United States Department of Health and Human
Services (Request #24) and Prisoners Legal Services (Request #25). Discovery under Federal
Rule 34 is from parties to the litigation only, Fed. R. Civ. P. 34(a)(1) (a party may serve on “any
other party a request” to produce items “in the responding party’s possession, custody, or
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control”). Plaintiff’s motion to compel production of these non-parties’ materials (Request #2325, 34, 39-41, 42, 43, 62) is denied.
Where defendants assert that no responsive documents exist, plaintiff’s motion to compel
their production (Request #10, 37) is also denied. The parties must rest on defendants’ assertion
that these items do not exist or are not in defendants’ possession, custody, or control, with the
parties aware of their Rule 26(e)(1) supplementation obligations.
C.
Overbroad, Burdensome and Irrelevant Production
Plaintiff claims stem from being in the RMU at Wende. It is irrelevant to this case the
fact that plaintiff previously was housed at Elmira (or other facilities) and received different
treatment there. Therefore, plaintiff’s motion to compel production of irrelevant materials, such
as the rules in Elmira, is denied (Requests #82, 75, 81). Similarly, compelling production of
those requests that were overly broad (such as any and all documents in a particular criterion)
(Requests #12, 66, 67, 79, 80, 81, 87, 91) is also denied.
D.
Special Diet Guides (Request #12)
Plaintiff requested any and all Pro #3A diet guides although he was prescribed a special
diet due to his dialysis. Plaintiff has not shown the relevance of other modified diets. He argues
that the diet he was provided did not meet the standard that other facilities (including the Erie
County Medical Center) would provide for end stage renal disease program (Docket No. 74, Pl.
Affirm. at 5, Request #12). Production of other DOCCS provided special or modified diets are
not relevant to plaintiff’s claim. Other modified diets are diagnosis-specific and would not
reflect what a proper end stage renal disease diet should be. Plaintiff’s motion to compel this
production (Request #12) is denied.
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E.
Diagrams of Wende (Request #90)
Plaintiff’s request (Request #90) seeking diagrams of Wende is denied. Defendants’
security concerns of providing floor plans to an inmate are legitimate, see Diaz v. Goord,
No. 04CV6094, 2007 U.S. Dist. LEXIS 71057, at *6 (W.D.N.Y. Sept. 25, 2007) (Payson, Mag.
J.), reconsideration denied, 2010 U.S. Dist. LEXIS 65352 (W.D.N.Y. July 1, 2010), aff’d,
2013 U.S. Dist. LEXIS 90836, at *9, 37 (W.D.N.Y. June 25, 2013) (Siragusa, J.). In Diaz, the
plaintiff was an inmate proceeding pro se and he sought production of diagrams of B-Block of
Attica Correctional Facility but defendants opposed on security grounds, Diaz, supra, 2007 U.S.
Dist. LEXIS 71057, at *5-6. Magistrate Judge Payson believed that “defendants’ legitimate
security concern outweigh any possible relevance of the diagrams requested,” denying plaintiff’s
motion, reasoning that plaintiff could draw his own diagrams or testify to the distances and
dimensions at issue in that case, id. at *6. A similar security concern exists here for providing
diagrams of cell blocks, the law library, gym areas, and docks of Wende to an inmate (see
Docket No. 105, Defs. Atty. Decl. ¶ 52). Regardless of the relevance of such diagrams to
plaintiff’s claims (regarding the distances between RMU and Wende’s law library or Americans
with Disability Act reconstruction work at Wende), plaintiff has not overcome the security
concerns raised by defendants. Plaintiff’s motion to compel these diagrams (Request #90) is
denied.
III.
Plaintiff’s Supplemental Requests
Defendants do not address plaintiff’s supplemental requests (cf. Docket No. 74, Pl.
Motion at 13-15); either in responding to the motion or in filed discovery responses (cf. Docket
Nos. 105, 85). Defendants are to respond to plaintiff’s supplemental requests made in this
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motion (Docket No. 74, Pl. Motion at 13-15) by April 22, 2016, or 30 days from entry of this
Order. This response may include any applicable objections to production, including noting
whether the sought items were already produced to plaintiff (with citation to the produced items).
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 74) to compel is denied.
Defendants are to respond to plaintiff’s supplemental requests (id. at 13-15) by April 22, 2016.
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
March 22, 2016
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