Nelson v. Gleason et al

Filing 66

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER finding as moot 42 Motion ; denying 42 Motion for Sanctions; granting in part and denying in part 42 Motion to Compel; denying 50 Motion ; denying 62 Mo tion to CompelPlaintiff's Motion (Docket No. 42) denied as moot, save production of a duplicate copy of defense initial disclosure filed with the Court. Court Clerk is instructed to copy and send to plaintiff defendants' in itial disclosures (Docket Nos. 28, 36).Plaintiff's remaining discovery motions (Docket Nos. 50, 62) are denied.Defendants' motion to extend their time to respond to 5/15/2017 (Docket No. 45, Defs. Atty. Decl. 4) is granted, nunc pro tunc.Copy of Order mailed to plaintiff at Clinton Correctional Facility by Chambers.So Ordered. Signed by Hon. Hugh B. Scott on 7/13/2017. (DRH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LIONELL NELSON,
Plaintiff,
Hon. Hugh B. Scott
14CV870A
v.
Order

LARRY GLEASON,
CARLETON BRINK, and
GARY BELZ,
Defendants.

Before the Court are plaintiff’s motions (Docket Nos. 42, 50, 62). First, plaintiff moves
to enforce a prior Order (this Court’s Scheduling Order, Docket No. 12) requiring defendants
Larry Gleason, Carleton Brink, and Gary Belz to produce initial disclosure (Docket No. 42).
Plaintiff also seeks sanctions against defendants for deliberately disregarding the Scheduling
Order in not providing initial disclosure and for making allegedly false representations (Docket
No. 42). He also moved to compel defendants to answer Interrogatories (id.). Then, plaintiff
moves to compel responses to his Requests for Admissions and seeks discovery sanctions for
discovery he deems to be evasive (Docket No. 50). Later, he again moved to compel answers to
his Interrogatories (Docket No. 62) and for production of documents (id.), while stating his
response to defendants’ objections to discovery (id.).
As for plaintiff’s first motion, responses were due by April 21, 2017, with replies initially
due by April 28, 2017 (Docket No. 43), but defendants sought to extend plaintiff’s reply to

May 5, 2017, due to their late service of their response (Docket Nos. 47 (motion), 48 (Order
granting defense motion), 49 (Order granting extension of reply deadline)). Defendants
submitted their response (Docket No. 45) and plaintiff replied (Docket No. 54).
Within their response to plaintiff’s first motion, defendants also requested the extension
of time, until May 5, 2017, to answer his Interrogatories (Docket No. 45), which this Court had
not addressed. Now seeing little prejudice to plaintiff (and that defendants had served answers,
Docket Nos. 46 (Belz, filed April 21, 2017), 51 (Gleason, filed May 5, 2017), 56 (Brink, filed
May 15, 2017), even though the last answer was after the May 5 deadline sought), defendants
motion for that extension (see Docket No. 45, Defs. Atty. Decl. ¶ 4) is granted nunc pro tunc,
but to the date of the last served answer, or May 15, 2017; and so much of plaintiff’s second
motion (Docket No. 50) objecting to the timing of defense answers to these Interrogatories, is
denied.
Regarding plaintiff’s second discovery motion (Docket No. 50), he was ordered to file
with this Court his Requests for Admissions, see W.D.N.Y. Loc. Civ. R. 5.2(f) (requiring filing
of discovery in pro se cases), by June 2, 2017; responses then were due by June 16, 2017, with
replies due by June 26, 2017 (Docket No. 57). These two motions were deemed submitted,
without oral argument, on June 26, 2017 (Docket No. 57). Plaintiff’s third motion to compel had
responses due by June 14, 2017 (Docket No. 64). All motions thus were submitted (without oral
argument) on June 26, 2017 (see Docket No. 57).
BACKGROUND
Plaintiff, proceeding pro se as an inmate at Southport Correctional Facility, alleged that
defendant corrections officers came into plaintiff’s cell on October 16, 2011, and threw plaintiff

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against the cell wall and grabbed him by the throat and mouth to compel him to open his mouth.
Defendants allegedly then handcuffed plaintiff and took him to the shower where plaintiff was
punched. The defendants were seeking drugs plaintiff allegedly had from an earlier visit.
Defendants then allegedly stripped searched plaintiff for the contraband. In all, plaintiff alleges
that defendants deprived him of his rights under the Eighth Amendment to be free from
unjustified use of force (id. ¶ 51) and the failure of defendant Corrections Sergeant Belz to
protect him from the codefendants (id. ¶¶ 54-55).
He moved for leave to proceed in forma pauperis (Docket Nos. 2, 3), which was granted
while this Court dismissed plaintiff’s official capacity claims (Docket No. 4, Order of May 14,
2015, at 1-2). The time for defendants’ to serve their Answer was extended (Docket No. 12; cf.
Docket No. 5), and defendants duly filed their Answer on September 30, 2016 (Docket No. 17).
On September 30, 2016, a Scheduling Order was entered, with discovery to be completed by
March 28, 2017 (Docket No. 18). After motion practice regarding plaintiff’s attempts to obtain
entry of default against defendants (Docket Nos. 20, 22, 27, 33) plaintiff’s Interrogatories to
defendants (Docket Nos. 29-31), and plaintiff’s initial disclosure (Docket No. 32), that schedule
was extended (see Docket No. 40) with discovery to be completed by May 24, 2017 (Docket
No. 41). After additional discovery responses (as detailed below), and, upon defense request for
extension (Docket No. 60), the schedule was further extended and discovery deadline now is
August 18, 2017 (Docket No. 63).
Given that these motions involve discovery responses deemed owed, a discourse into the
filings of discovery in this action is in order, see W.D.N.Y. Loc. Civ. R. 5.2(f). This discussion
will track the three motions to compel filed by plaintiff.
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Plaintiff’s First Motion (Docket No. 42)
The first Scheduling Order was an inmate Scheduling Order (Docket No. 18); an
exception from Rule 26(a) allows this Court to order the parties (primarily defendants) to
exchange initial disclosures (id. ¶ 3), with these disclosures due by November 29, 2016 (id.).
Under this District’s Local Civil Rule 5.2(f), in an incarcerated pro se action such as this “all
discovery materials . . . shall be filed with the Court, W.D.N.Y. Loc. Civ. R. 5.2(f); see id. R.
5.2(f)(1) (defining “discovery” required to be filed). Plaintiff filed his Interrogatories posed to
each defendant (Docket Nos. 29-31).
Defendants filed their disclosures on November 29, 2016 (Docket No. 28), with attached
documents, and then refiled just the initial disclosure on January 17, 2017 (Docket No. 36), with
proof of service of both filings attached (Docket Nos. 28, 36).
Plaintiff moved to enforce the initial Scheduling Order and its requirement of production
of initial disclosure, seeking sanctions for defendants’ non-disclosure (Docket No. 42).
Defendants argue that the motion should be denied because plaintiff made no attempt to confer
about the discovery dispute prior to moving (Docket No. 45, Defs. Atty. Decl. ¶ 3). After noting
that one of the defendants submitted his answers to plaintiff’s Interrogatories (id. ¶ 4 & n.1;
Docket No. 46, Belz Ans. to Interrog.), defendants recounted the materials produced with their
initial disclosure (Docket No. 45, Defs. Atty. Decl. ¶ 5) and notes the absence of a Use of Force
or Unusual Incident Report for this incident (id. ¶ 6). Defendants also sought an extension of
time (until May 5, 2017) to answer plaintiff’s remaining Interrogatories (Docket No. 45, Defs.
Atty. Decl. ¶ 4).

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Plaintiff replied pleading that he did not know of the meet and confer requirement prior
to moving to compel disclosure but he disputes whether there is a meet and confer requirement
either under Rule 26(a) or after serving Interrogatories (Docket No. 54, Pl. Decl. ¶ 3). He claims
that defense counsel’s response was back dated to hide defendants’ continued tardiness (id. ¶ 5).
Plaintiff continues to seek production of the Inspector General report (id. ¶ 6) which defendants
as a matter of policy refuse to produce to inmates directly due to security concerns (see Docket
No. 45, Defs. Atty. Decl. ¶ 5). But defense counsel offered a method for plaintiff to review the
Inspector General’s Report (Docket No. 45, Defs. Atty. Decl. ¶ 5) but does not state what that
procedure is.
Meanwhile, plaintiff served and filed his document demand (Docket No. 44; see Docket
No. 45, Defs. Atty. Decl. ¶ 7); defendants stated that they were endeavoring to produce the
sought materials by May 5, 2017 (Docket No. 45, Defs. Atty. Decl. ¶ 7).
Plaintiff’s Second Motion (Docket No. 50)
While the first motion was pending, plaintiff also moved for sanctions against defendants
for their failure to answer his Requests for Admissions, for filing duplicate documents, and other,
purported evasive actions (Docket No. 50). While setting defendants’ response deadline, this
Court also noted that plaintiff had not filed the Request for Admissions at issue, as would be
required for discovery requests from a pro se inmate litigant under this Court’s Local Rule
5.2(f)(1)(G) nor was it included with his moving papers, and gave plaintiff until June 2, 2017, to
file copies of the Request (Docket No. 57). Plaintiff never filed the Request and defendants did
not respond to this motion.

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Plaintiff’s Third Motion (Docket No. 62)
Finally, plaintiff moved defendants to produce specified responses to his document
production (Docket No. 62; see Docket No. 44). Plaintiff earlier noted that defendants Gleason
and Brink had not served answers to Interrogatories as of May 9, 2017 (Docket No. 55, Pl.
Response ¶ 2), although they later did serve and file their answers (Docket Nos. 51 (Gleason’s
Answer, dated May 5, 2017), 56 (Brink’s Answer, dated May 15, 2017). Defendants’ motion for
nunc pro tunc service of these Answers was granted above. Regarding objections raised by
defendants under New York Civil Rights Law § 50-a to production of defendants’ personnel
records, plaintiff proposes to have this Court conduct an in camera review of the sought files to
identify documents that could be produced (Docket No. 62, Pl. [3d] Motion to Compel ¶¶ 4, 9).
Again, defendants respond that plaintiff failed to meet and confer regarding what was and
was not produced in his document demand (Docket No. 65, Defs. Atty. Decl. ¶ 3). After noting
objections to producing documents not in their custody, possession, or control (id. ¶ 6),
defendants state that they produced logbook entries to plaintiff and noted that no Use of Force
report or Unusual Incident Report were created (id. ¶ 7). They also contend that plaintiff’s
request for any and all rules and regulations on how to conduct an investigation of prisoners was
overly broad and requested that plaintiff narrow that request (id. ¶¶ 8-9), after producing
Department of Corrections and Community Supervision directives regarding use of physical
force, unusual incident reports, reporting inmate attitude and behavior, and other matters (id.
¶ 9). Finally, defendants addressed some concerns stated by plaintiff regarding Interrogatory
answers (id. ¶¶ 10-16).

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DISCUSSION
I.

Applicable Standards
Rule 26(a) is usually not applicable to inmate cases, Fed. R. Civ. P. 26(a)(1)(B)(iv)

(exemption from initial disclosure for action brought without an attorney by a person in custody)
unless so ordered by this Court, id., R. 26(a)(1)(A). It is under this provision that this Court
issues Scheduling Orders in pro se inmate actions without holding a Scheduling Conference and
requiring the parties to exchange initial disclosure, as was done in this case (Docket No. 18).
Under this Court’s Local Civil Rule, discovery for pro se cases is to be filed with this Court,
unlike discovery in represented actions, W.D.N.Y. Loc. Civ. R. 5.2(f). The purpose of this filing
is ensure that discovery is provided to pro se inmate litigants and for the Court to be aware of
what was (and was not) produced, given the unequal means most defendants have as compared
with pro se inmate plaintiffs.
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) (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

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duplicative, or is obtainable from some other source that is more convenient, less burdensome, or
less expensive.”
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).
II.

Initial Disclosures (Docket No. 42)
Defendants filed their initial disclosure made to plaintiff (Docket Nos. 28 (with attached

exhibits), 36), with certificates of service upon plaintiff at Clinton Correctional Facility (id.) back
in November 2016, when required by the Scheduling Order (cf. Docket No. 18). Plaintiff’s
objection to not receiving it has no basis for compelling defendants to respond (again). Since
these disclosures with appended documents are filed with this Court and to ensure that plaintiff
has these documents, the Court Clerk is asked to send a copy of Docket No. 28 to plaintiff.
Otherwise, plaintiff’s motion (Docket No. 42) to compel this disclosure is deemed moot.
III.

Plaintiff’s Other Discovery Demand (Docket No. 42)
The remaining outstanding issue is production of an Inspector General’s report on the

incident, IAD-11-1506. Defense counsel offered an unstated method for having plaintiff inspect
these documents; defendants shall produce the report to plaintiff pursuant to this method.
Therefore, plaintiff’s first motion (Docket No. 42) is granted in part, deemed moot where
already produced or to be furnished by copy from the Court Clerk.

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IV.

Plaintiff’s Requests for Admissions (Docket No. 50)
This Court next turns to plaintiff’s second discovery sanction motion (Docket No. 50).

He seeks responses to his Requests for Admissions (id.). Plaintiff has not filed a copy of the
Request, W.D.N.Y. Loc. Civ. R. 5.2(f) (cf. Docket No. 57). Thus, this Court cannot determine
on this record what was being asked, whether (for example) it is cumulative of discovery
obtained by other methods. Absent that documentation (and also lacking a defense response to
this motion), plaintiff’s motion (Docket No. 50) is denied.
V.

Plaintiff’s Third Motion to Compel (Docket No. 62)
Plaintiff also proposes in camera inspection of defendants’ personnel and internal affairs

files. In Evans v. Murphy, No. 12CV365, Docket No. 46, 2013 U.S. Dist. LEXIS 72825, at *13(W.D.N.Y. May 22, 2013) (Scott, Mag. J.), this Court discussed New York Civil Rights Law
§ 50-a and an inmate litigant’s access to correction officer defendants’ personnel records. There,
the inmate plaintiff moved to compel from the individual corrections officers production of their
respective personnel records and internal affairs records in accordance with § 50-a, id. at *11.
Defendants argued that they were not in possession of those records, only the Department of
Corrections and Community Supervision had those records, id. at *13. This Court then noted
that it
“cannot compel a non-party to produce documents based upon a Rule 34
discovery demand served upon a party. The Court can only compel the
defendants to produce documents that are withing [sic] their possession, custody
or control. The Court is also aware that the information in personnel files is
considered privileged under New York State law. In federal civil rights cases,
issues of privilege are governed by federal, not state, law. It is undisputed that
under federal law, New York Civil Rights Law § 50-a does not prohibit discovery
of police personnel documents. Martin v. Lamb, 122 F.R.D. 143, 146 (W.D.N.Y.
1988). That does not mean that the state statute is to be given no effect.
According to the New York State Court of Appeals, the legislative intent
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underlying the enactment of §50-a was enacted to prevent time consuming and
perhaps vexatious investigation into irrelevant collateral matters in the contest of
a civil or criminal action, and to avoid embarrassment and harassment of
testifying officers by cross-examination concerning ‘unsubstantiated and
irrelevant’ matters in their personnel files. See Matter of Capital Newspapers v.
Burns, 67 N.Y.2d 562 (1986). Generally, the Court will direct the production of
documents contained in the personnel file of an officer only if the documents are
relevant and involved disciplinary action taken against the officer. See Diaz v.
Goord, 2007 WL 2815735 (W.D.N.Y. 2007)(Payson, M.J.)(directing disclosure of
documents relating to disciplinary action imposed on the defendants in connection
with allegation of excessive force); Wright v. Goord, 2008 WL 2788287
(W.D.N.Y. 2008)(Payson, M.J.)(directing search of personnel files for documents
relating to disciplinary action taken against defendants based upon the use of
excessive force). It is unlikely that documents relating to unsubstantiated claims
of excessive force would lead to admissible evidence. See Crenshaw v. Herbert,
409 Fed. Appx. 428 (2d. Cir. 2011)(the district court did not abuse its discretion
by denying plaintiff’s motion to compel production of defendant’s personnel file;
the court properly relied on defense counsel’s affirmation that the file contained
no relevant disciplinary records; even if evidence of a prior substantiated
excessive force investigation existed, on the facts of the particular case before us
such evidence would be inadmissible to show that defendant acted violently in
this instance). Crenshaw, 409 Fed. Appx. at 430 citing Fed. R. Evid. 404(b). See
also DiRico v. City of Quincy, 404 F.3d 464 (1st Cir. 2005)(district court in
arrestee's § 1983 action against police officer for injuries sustained in arrest did
not plainly err in excluding evidence of an earlier arrest by officer that resulted in
a complaint of use of excessive force; evidence had no special relevance to any
issue in action, evidence relating to a single, unsubstantiated claim of use of
excessive force had limited probative value, and admission would have created
danger that jury would render verdict on improper basis that officer was prone to
engaging in violent behavior.).”
Evans, supra, 2013 U.S. Dist. LEXIS 72825, at *13-15 (emphasis in original). In that case, the
defendant officers were ordered to produce for in camera inspection “only those documents in
their possession, custody or control which relate to any claims of excessive use of force
involving any of the individual defendants which has been substantiated upon the conclusion of
an internal administrative investigation or court proceeding,” id. at *16.
As in Evans, the individual correction officers here do not possess, control or have in
their custody their personnel or internal affairs records. But unlike that decision, this Court will
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not compel these defendants to produce for in camera review documents they do not possess or
control. If they have access to their personnel or internal affairs files, they would be required to
produce documents that “relate to any claims of excessive use of force involving any of the
individual defendants which has been substantiated upon the conclusion of an internal
administrative investigation or court proceeding,” id., which is a more limited category of
documents than the individual officers’ personnel or internal affairs files, in any documents meet
these criteria. Plaintiff’s motion to compel production of defendants’ personnel and internal
affairs files (Docket No. 62) thus is denied.
VI.

What Remains
Discovery still must be completed (as previously ordered, Docket No. 63) by August 18,

2017. Both sides did not seek a further extension of this discovery deadline and sufficient time
remains to complete discovery. This Court, of course, will entertain any motion to the contrary.
Defendants are to furnish the Inspector General’s report, IAD-11-1506, to plaintiff in the
manner proffered by defense counsel. Plaintiff’s remaining motions to compel are denied.
VII.

Plaintiff’s Motion for Discovery Sanctions
A.

Standards

Recovery of reasonable discovery costs under Rule 37 occurs if the motion to compel is
granted or disclosure is made after filing that motion, Fed. R. Civ. P. 37(a)(5)(A), and plaintiff as
movant here attempted in good faith to obtain discovery; nondisclosure was not substantially
justified; and other circumstances would not make an award of expenses unjust, id.,
R. 37(a)(5)(A)(i), (ii), (iii). If a motion to compel is partially granted, and after giving the parties
an opportunity to be heard, this Court may apportion reasonable motion expenses, id.,
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R. 37(a)(5)(C). If the motion to compel is denied, however, the opposing party may receive
reasonable defense costs associated with the motion, provided that the motion was not
substantially justified or other circumstances would not make the imposition of those costs on the
movant unjust, id., R. 37(a)(5)(B).
B.

Application

As defendants correctly notes, plaintiff has not attempted to meet with the defense to
resolve his discovery disputes short of motion practice. The first time might be excused because,
as he noted in his response (Docket No. 54, Pl. Decl. ¶ 3) he was not aware of the requirement.
But for his third motion (Docket No. 62), plaintiff was aware of the obligation as he noted in his
prior response. In Evans, supra, 2013 U.S. Dist. LEXIS 72825, at *12 n.6, this Court went
further and found that Rule 37’s certification process did not apply to pro se litigants at all.
Plaintiff prevailed only in part on his first motion to compel (obtaining a copy of the
initial disclosure filed with this Court and access to the Inspector General’s report pursuant to
proffered defense procedures). He is denied the other relief sought in that motion and in the two
subsequent motions. Thus, the partial prevailing provision of the rules (Fed. R. Civ.
P. 37(a)(5)(C)) applies or, if taking each motion separately, the denied motion sanction rules
(Fed. R. Civ. P. 37(a)(5)(B)) apply. Under the latter rules, normally the focus would be on
defendants’ opposition costs. But plaintiff here is proceeding pro se as an inmate granted leave
to sue in forma pauperis (Docket No. 4 (Order); see Docket Nos. 2, 3 (motions)). This
constitutes a circumstance in which imposition of defendants’ motion defense costs unjust.
Therefore, under either Rule 37(a)(5)(C) or 37(a)(5)(B), no award of costs will be
imposed for these motions.
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CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 42) to enforce provisions of
the Scheduling Order (Docket No. 18) for defendants to produce initial disclosures is denied as
moot, save duplication of the initial disclosure filed by defendants. The Court Clerk is
instructed to duplicate and send defense initial disclosure (Docket Nos. 28, 36) to plaintiff.
Defense counsel shall produce to plaintiff the Inspector General’s report, as he proposed to do.
Plaintiff’s second discovery motion (Docket No. 50) is denied (regarding objections to
the timing of defendants’ answers to Interrogatories) and denied as to other relief sought.
Plaintiff’s third motion to compel (Docket No. 62) is denied. No award of costs for these
motions (either pursuing the successful motion or defending the unsuccessful ones) shall be
awarded.
Defendants’ motion (see Docket No. 45, Defs. Atty. Decl. ¶ 4) seeking to extend their
time to answer plaintiff’s then outstanding Interrogatories is granted, nunc pro tunc, to
May 15, 2017, thus making their served Interrogatory Answers (Docket Nos. 51, 56) timely.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
July 13, 2017

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