Torres v. Artus et al
REPORT AND RECOMMENDATIONS RE: 131 MOTION for Summary Judgment filed by Aljaz Gundroo, Heather Amerlink, Nancy Olsen, Alan Herdzik, Karen Crowley, Rosalyn Killinger, Dale A. Artus, Rick Apollo, Thomas Sticht, Colleen Reitz, Dennis J. Grzywna, Jacqueline Levitt, Mandip Panesar, Suan Schumacher, Kelly Smith.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72.Signed by Hon. Hugh B. Scott on 5/23/2017. (GAI)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Hon. Hugh B. Scott
Report & Recommendation
Decision & Order
SUPERINTENDENT DALE A. ARTUS,
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C)
(Docket No. 18, May 22, 2014) for dispositive motions. The instant matters before the Court are
(a) the motion of defendants (Docket No. 131) for summary judgment; (b) plaintiff’s motions
seeking compelled discovery (Docket Nos. 134 (Request for Admissions), 135 (Answers to
Interrogatories)); (c) plaintiff’s motion seeking to suspend briefing for defendants’ motion for
summary judgment (Docket No. 133; see Docket No. 144); and (d) plaintiff’s motion to compel
(Docket No. 139). Responses to defendants’ motion were due by April 10, 2017, with reply by
April 24, 2017 (Docket No. 132), but the reply deadline was extended to May 11, 2017 (Docket
No. 140) to conclude all briefing of the motions together (id.). As for plaintiff’s motion to
suspend briefing of the summary judgment and his motions to compel, the defense response was
due by April 6, 2017, with reply due by April 21, 2017 (Docket No. 136). This Court there
recognized that, under Rule 56(d), a summary judgment opponent can respond that he cannot
present facts to oppose the motion and presumed plaintiff’s motions to compel raised that
inability to respond (id.; see also Docket No. 144). Plaintiff also was directed to show his good
faith attempts to obtain the sought discovery and was to do so by April 6, 2017 (Docket
No. 136). Plaintiff then filed his motion to compel (Docket No. 139). Responses to this motion
were due May 4, 2017, and replies to all motions were then due by May 11, 2017 (Docket
No. 140). This Court later indicated that plaintiff’s discovery motions would be resolved first
and then defendants’ summary judgment motion (id.).
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 alleges in this action eleven causes of action.
(Docket No. 1, Compl.) 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 regional medical unit. For example, in the Ninth Claim,
plaintiff alleges that defendants, on various dates in 2012, denied him access to the Wende main
law library while he was housed at the RMU, a maximum security unit, for dialysis treatment
(Docket No. 1, Compl. at 20). He claims that he grieved these denials (id.). 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 and he seeks a preliminary
injunction to grant him access to the law library (Docket No. 1, Compl. 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
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 (Docket Nos. 12, 14) contained in
the Complaint, as well as served their Answer to the Complaint (Docket No. 15). Plaintiff also
moved for access to the Wende law library while being hospitalized at the RMU (Docket
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); familiarity with this Report is presumed. Absent any
objections, then Chief Judge William 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).
The current Scheduling Order (Docket No. 107, First Amended Scheduling Order, dated
Mar. 23, 2016) concluded discovery on April 22, 2016 (see Docket No. 136).
Defendants then moved to dismiss certain claims because they were time barred (Docket
No. 83). That motion was granted and those claims were dismissed (Docket No. 100, Order; see
Docket No. 92, Report & Rec.).
Defendants’ Motion for Summary Judgment
Defendants now argue that they provided plaintiff with adequate medical care (Docket
No. 131, Defs. Memo. at 9-13). They contend that plaintiff was afforded access to the law
library through law clerks and such access was adequate and reasonable accommodation under
the Americans with Disabilities Act and the Rehabilitation Act (id. at 13-15). Defendants argue
that plaintiff only made conclusory allegations of violations of his rights under the First, Fourth,
Sixth, Eighth, and Fourteenth Amendments (id. at 15-17) and that certain grievances raised by
plaintiff fail to state a constitutional violation (id. at 17-25).
Plaintiff’s Motions to Compel and Response to Defendants’ Summary Judgment Motion
Instead of attempting to address defendants’ contentions, plaintiff moved to compel
answers to his Request for Admissions (Docket No. 134) and to his Interrogatories (Docket
No. 135). He also moved to suspend defendants’ motion until plaintiff’s motions to compel were
addressed (Docket No. 133).
Plaintiff appears to have served his discovery demands with his motions to compel, with
his Requests for Admission for individual defendants to respond to dated “March 2017” (Docket
No. 134). Plaintiff’s Interrogatories attached to his second motion to compel are dated
March 19, 2017 (Docket No. 135).
Defendants respond that these discovery demands are untimely (Docket No. 138, Defs.
Atty. Decl. ¶¶ 5, 12) and unduly burdensome (id. ¶¶ 5, 8). They note the extensive document
production given to plaintiff to date (id. ¶¶ 6-7, 10, 14) and the extensions of time granted for
completion of discovery (id. ¶¶ 9-11, 15). Defendants contend that plaintiff was aware of the
factual issues and had discovery sufficient to respond to their motion (id. ¶¶ 12-13, 16-17; see
Docket No. 137, Defs. Atty. Decl. ¶¶ 8-9), concluding that their motion is based upon plaintiff’s
medical record, documents produced to them months ago (Docket No. 138, Defs. Atty. Decl.
In his motion to compel, plaintiff argues that he served a motion to compel back in March
2016 which has yet to be adjudicated (Docket No. 139, Pl. Motion ¶4 a); cf. Docket No. 108, Pl.
Reply, wherein plaintiff made his declaration pertaining to defendants’ response to a motion to
Summary judgment is appropriate only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed. R. Civ. P. 56(a) (effective
Dec. 2010). The party seeking summary judgment has the burden to demonstrate that no
genuine issue of material fact exists. In determining whether a genuine issue of material fact
exists, a court must examine the evidence in the light most favorable to, and draw all inferences
in favor of, the non-movant. Ford, supra, 316 F.3d at 354. “A dispute regarding a material fact is
genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir.) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)), cert. denied, 522 U.S. 864 (1997).
While the moving party must demonstrate the absence of any genuine factual dispute, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), the party against whom summary judgment is sought,
however, “must do more than simply show that there is some metaphysical doubt as to the
material facts. . . . [T]he nonmoving party must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986) (emphasis in original removed); McCarthy v. American Intern. Group, Inc.,
283 F.3d 121, 124 (2d Cir. 2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir.
2002). The opponent to summary judgment may argue that he cannot respond to the motion
where it shows, by affidavit, “that, for specified reasons, it cannot present facts essential to
justify its opposition,” Fed. R. Civ. P. 56(d). If so, this Court may deny summary judgment,
allow the opponent to conduct discovery, or provide other relief, id.
The Local Civil Rules of this Court require that movant and opponent each submit “a
separate, short, and concise” statement of material facts, and if movant fails to submit such a
statement it may be grounds for denying the motion, W.D.N.Y. Loc. Civ. R. 56(a)(1), (2)
(effective Jan. 1, 2011). The movant is to submit facts in which there is no genuine issue, id.
R. 56(a)(1), while the opponent submits an opposing statement of material facts as to which it is
contended that there exists a genuine issue to be tried, id. R. 56(a)(2). Each numbered paragraph
in the movant=s statement will be deemed admitted unless specifically controverted by a
correspondingly numbered paragraph in the opponent’s statement, id. Each statement of material
fact is to contain citations to admissible evidence to support the factual statements and all cited
authority is to be separately submitted as an appendix to that statement, id. R. 56(a)(3).
As with pleadings, the filings of a pro se plaintiff in response to a summary judgment
motion are to be liberally construed, see Haines v. Kerner, 404 U.S. 519 (1972) (per curiam).
Method for Decision of Pending Motions
Although plaintiff’s motions can be decided by this Court by an Order, these motions are
related to plaintiff’s ability to respond to defendants’ dispositive motion. As a result, plaintiffs’
motions (including those seeking to suspend briefing of defendants’ summary judgment motion)
will be addressed in this Report & Recommendation.
Defendants’ Summary Judgment Motion
Discovery was to conclude by April 22, 2016 (Docket No. 107). Despite plaintiff’s
means for seeking discovery after defendants moved, plaintiff clearly indicates that he cannot
address the merits of defendants’ motion without discovery. Under Rule 56(d), this Court may
defer consideration of defendants’ summary judgment motion or deny it or allow plaintiff time to
conduct discovery or other appropriate relief, Fed. R. Civ. P. 56(d) (see also Docket No. 136).
Defendants counter that the evidentiary record had been produced to plaintiff months ago to
allow him ample opportunity to respond to their motion (Docket No. 142). Given that plaintiff is
proceeding pro se, the Court will exercise some discretion in excusing plaintiff’s belated
discovery demands and in recognizing the need for a more flexible approach to disclosure.
Therefore, under Rule 56(d), defendants’ motion for summary judgment should be denied
without prejudice to allow plaintiff to conduct discovery sufficient to give him material to
respond to the motion (see Docket No. 140). Plaintiff’s motion to suspend briefing of
defendants’ motion is now deemed moot since consideration first of plaintiff’s other motions to
compel in effect suspended that briefing. At the conclusion of this Report, a new briefing
schedule for defendants’ summary judgment motion will be entered.
Plaintiff’s Motions to Compel Discovery
A party needs to first serve discovery demands before moving to compel their production,
see Moore’s Federal Practice Civil § 37.05 (2017) (“a motion to compel may only be made
after discovery has been sought unsuccessfully”); United States v. Mottolo, 605 F. Sup. 898, 915
(D.N.H. 1985) (motion to compel was premature when questions sought to be compelled were
not propounded before the motion); Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1310 (3d
Cir. 1995) (plaintiff failed to engage in discovery but brought motion to compel after defendant
moved for summary judgment); Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th Cir. 1991) (pro
se party’s motion to compel dismissed as premature); see also Moore’s Federal Practice, supra,
§ 37.04 (“with respect to discovery probes or deposition questions, however, only the party that
propounded the discovery request or question has standing to move to compel compliance,”
citing Fed. R. Civ. P. 37(a)(3)(B)). Here, plaintiff’s motions to compel contained
contemporaneous discovery demands and lacked any reference of prior requests. Since these
demands were not served, there is nothing to compel. Furthermore, under Rule 37, plaintiff
needed to certify his good faith efforts to obtain these Interrogatory answers and responses to
Admissions prior to moving to compel, Fed. R. Civ. P. 37(a)(1).
Although plaintiff’s belated discovery demands can forestall defendants’ summary
judgment motion (because plaintiff’s inability to respond to the motion absent the discovery
sought), this Court is not required under Rule 56(d) to order that discovery. This Court has the
discretion on how to deal with plaintiff’s inability to respond to the summary judgment motion,
see also Williams v. R.H. Donnelly Corp., 368 F.3d 123, 126 n.1 (2d Cir. 2004) (no abuse of
discretion in denying more time for discovery where discovery could have obtained earlier).
Defendants’ motion is based (in part) upon plaintiff’s medical record (which plaintiff has
obtained in discovery), while plaintiff’s Requests for Admissions (see Docket No. 134) and to a
degree his Interrogatories (see Docket No. 135) focus on plaintiff’s medical care. Answering
these devices would be duplicative of the paper record already provided to plaintiff. Plaintiff’s
several motions to compel (Docket Nos. 134, 135, 139) are denied.
But considering plaintiff is an inmate proceeding pro se, he will need time with the
renewed briefing for defendants’ summary judgment motion to review the paper medical record
to find material issues of fact (if any).
Following disposition of these motions and assuming adoption of this Report and
Recommendation, plaintiff should be given an opportunity to review the documentary evidence
already produced and determine if he could respond to defendants’ motion for summary
judgment. The new briefing schedule (set forth below in the Conclusion) should provide
plaintiff adequate time to review that record and formulate a response to defendants’ motion.
The new deadline runs from the latter of entry of this Report or disposition of any objections to
Based upon the above, it is recommended that defendants’ motion for summary judgment
(Docket No. 131) be denied without prejudice. Plaintiff’s motion to suspend briefing of this
motion (Docket No. 133) is denied as moot. His motions to compel (Docket Nos. 133 (request
for Admissions) 134 (Answers to Interrogatories), 139) are denied.
Briefing of defendants’ motion for summary judgment is renewed as follows: plaintiff’s
response due thirty (30) days from the later of entry of this Report or determination of any
objection to this Report; defendants’ reply is due fourteen (14) days following plaintiff filing his
response to this motion. The motion for summary judgment will be deemed submitted, without
oral argument (unless otherwise scheduled by this Court) seven (7) days after defendants’
deadline to reply in this motion.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report &
Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the
Report & Recommendation to all parties.
ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk
of this Court within fourteen (14) days after receipt of a copy of this Report &
Recommendation in accordance with 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b) (effective
December 1, 2009) and W.D.N.Y. Local Civil Rule 72.3(a).
FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION
WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME
WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT’S
ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v.
Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir. 1995); Wesolak
v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The District Court on de novo review will ordinarily refuse to consider arguments, case
law and/or evidentiary material which could have been, but was not, presented to the Magistrate
Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale
Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Civil Rule 72.3(a)(3),
“written objections shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for such objection and shall be
supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3) may
result in the District Court’s refusal to consider the objection.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
May 23, 2017
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