Pooler v. Esquir

Filing 75

DECISION AND ORDER denying 64 Motion for Sanctions. Signed by Hon. Leslie G. Foschio on 8/16/2017. (SDW)(Copy of Decision and Order mailed to pro se Plaintiff at Shawangunk Correctional Facility). Modified on 8/16/2017 (SDW).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
MR. KEITH POOLER,
Plaintiff,

DECISION
and
ORDER

v.
JAMES D. ESQUIR,
JOHN STAGE,
MATTHEW PORTER,
ROBERT BARGESSER,
JEFFREY POWER,
R.N. SEELEY,

14-CV-465S(F)

Defendants.
______________________________________

APPEARANCES:

KEITH POOLER, Pro Se
11-A-1736
Clinton Correctional Facility
Box 2001
Dannemora, New York 12929
ERIC T. SCHNEIDERMAN
New York State Attorney General
DENETRA D. ROBERTS
Assistant Attorney General, of Counsel
350 Main Street, Suite 300A
Buffalo, New York 14202

In this prisoner civils rights case, Plaintiff alleges that while housed at the N.Y.
Department of Corrections and Community Supervision’s (“DOCCS”) Elmira
Correctional facility, Plaintiff was assaulted by Defendants Stage, Porter, Bargesser,
and Power, denied due process by Defendant Esquir, and denied medical treatment by
Defendant Seeley in violation of Plaintiff’s rights under the Eighth and Fourteenth
Amendments. By papers filed May 5, 2017, Plaintiff requests substantial monetary
damages ($50,000) and restoration of lost good behavior time as sanctions pursuant to

Fed.R.Civ.P. 37(a)(2) and (b)(2). (Dkt. 64). Plaintiff’s request is based on Defendants’
alleged failure to provide truthful answers to Plaintiff’s interrogatories regarding
Defendant Seeley’s denials that Plaintiff required medical treatment following the
assault, failure to provide truthful information to Plaintiff regarding the circumstances of
Defendant Seeley’s separation from a nurse position at Elmira, which Plaintiff alleges
was on account of serious misconduct, failure to produce background information
created by DOCCS regarding Defendant Seeley’s purported resignation for failure to
provide medical treatment of Plaintiff, the reason for Defendant Power’s separation from
DOCCS, Defendants’ failure to produce a copy of a surveillance videotape showing
Plaintiff was in need of medical treatment after being escorted to the SHU following the
alleged assault and examined by Defendant Seeley, and the failure of Plaintiff’s prisoner
counselor to request a subpoena pursuant to Fed.R.Civ.P. 45 to compel production of
the putative videotape copy which Plaintiff had requested (“Plaintiff’s motion”). By
Declaration of Denetra D. Roberts, Assistant N.Y. Attorney General, filed May 30, 2017
(Dkt. 71) (“Defendants’ Response”), Defendants contend that Plaintiff’s motion should
be considered a motion to compel discovery that, according to the Scheduling Order
(Dkt. 51) for this case, was required to be filed not later than February 28, 2017 and, as
such, Plaintiff’s motion is untimely. Defendants further oppose Plaintiff’s motion on the
ground that Defendants lack possession, custody or control over the videotape as
required for production under Fed.R.Civ.P. 34(a), that no videotapes responsive to
Plaintiff’s demands exist, and that Defendants responded fully to Plaintiff’s requests by
serving responses to Plaintiff’s interrogatories and document requests on March 31,
2017 (see Dkts. 62, 63). In Plaintiff’s Response, filed July 16, 2017 (Dkt. 72), Plaintiff

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reiterates Plaintiff’s contentions in support of Plaintiff’s motion.
There is no merit in Plaintiff’s motion. First, the only basis for relief pursuant to
Rule 37 is upon a party’s filing of a motion to compel discovery as stated in Rule 37.
See Fed.R.Civ.P. 37(a)(1) (“a party may move for an order compelling discovery).
Thus, unless Plaintiff’s motion is treated as one to compel discovery, there is no basis
for granting any sanctions pursuant to Rule 37 against Defendants as Plaintiff requests.
However, as Defendants note, the cut-off for motions to compel in this case, February
28, 2017, has passed and Plaintiff provides no reason to extend such deadline after the
fact as required by Fed.R.Civ.P. 6(b)(1)(A) (good cause and excusable neglect required
to extend deadline after required deadline has passed). Accordingly, Plaintiff’s motion,
properly treated as a motion to compel, is untimely and, as such, should be DENIED.
Further, it is basic that discovery of relevant information that a requested party
represents does not exist cannot be compelled. Gross v. Lunduski, 304 F.R.D. 136,
141 (W.D.N.Y. 2014) (citing Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130,
138 (2d Cir. 2007)).
Finally, it is well-settled that where a party requesting answers to interrogatories
served pursuant to Fed.R.Civ.P. 33 is dissatisfied with the truthfulness or accuracy, as
opposed to a lack of completeness of such answers, the court does not determine the
credibility of the answers, as the final determination of factual disputes is reserved to the
trier of fact. See Sheehy v. Ridge Tool Co., 2007 WL 1020742, at *2 (D.Conn. Apr. 2,
2007) (“Interrogatories serve to lock-in a respondent’s answers and may be used in the
future to test that respondent’s credibility at trial.”). See also Farinaro v. Coughlin, 1993
WL 485729 at *8, n. 11 (S.D.N.Y. Nov. 23, 1993) (noting pro se plaintiff’s interrogatory

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answers that were inconsistent with plaintiff’s testimony at bench trial, could be
considered in assessing plaintiff’s credibility). Moreover, Defendants responded to
Plaintiff’s requests regarding the circumstances of Defendant Power’s and Seeley’s
separation from DOCCS stating that Power retired and Seeley resigned. See Dkt. 62.
Although it is incorrect that Defendants lack possession, custody, or control over any
videotape requested by Plaintiff, see Gross, 304 F.R.D. at 142-43 (where defendants
through representation by N.Y. Attorney General have practical ability to obtain
requested records from DOCCS, defendants deemed to have control of such
documents for purposes of Rule 34(a) and plaintiff not required to proceed by subpoena
pursuant to Rule 45) (citing caselaw), where, as here, Defendants deny the existence of
the videotape Plaintiff requests, see Dkt. 71 at 8 (May 11, 2017 Letter to Plaintiff from
Denetra D. Roberts, N.Y.S.A.A.G. (“No videotapes exist.”)), no relief to Plaintiff pursuant
to Rule 37 is available. Even if Defendants did not have practical control of the
purported videotape, it was also Plaintiff’s responsibility to seek such evidence by
issuing a Rule 45 subpoena to DOCCS. Defendants do not serve as guarantors of
assistance provided to prisoner-plaintiffs. Therefore, Defendants’ alleged failure to
provide a copy of the particular videotape Plaintiff seeks is not a ground for sanctions
under Rule 37(b). As Plaintiff’s motion is wholly without merit, the court need not
consider the propriety of Plaintiff’s requested sanctions.

CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt. 64) is DENIED.

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SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: August 16, 2017
Buffalo, New York

ANY APPEAL OF THIS DECISION AND ORDER MUST BE TAKEN BY
FILING WRITTEN OBJECTION WITH THE CLERK OF COURT NOT
LATER THAN 14 DAYS AFTER SERVICE OF THIS DECISION AND
ORDER IN ACCORDANCE WITH FED.R.CIV.P. 72(a).

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