Nelson v. Gleason et al
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 63 Text Order, Terminate Deadlines and Hearings, Set Deadlines/Hearings, 87 MOTION for Discovery Reopen Discovery filed by Lionell Nelson< /b>Plaintiff's Motion (Docket No. 87) to reopen discovery is granted; Motions terminated: 87 MOTION for Discovery Reopen Discovery filed by Lionell Nelson.As a result, Amended Scheduling Order (Docket No. 63) is amended as follows: Discovery completed by 6/27/2018, Motions due by 9/25/2018.So Ordered. Signed by Hon. Hugh B. Scott on 3/29/2018. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Hon. Hugh B. Scott
LARRY GLEASON, et al.,
Before the Court is plaintiff’s motion to reopen discovery pursuant to Federal Rule of
Civil Procedure 16(b)(4) (Docket No. 87). Under the current Amended Scheduling Order
(Docket No. 63), discovery was to be completed by August 18, 2017 (id.). On September 15,
2017, plaintiff moved for appointment of pro bono counsel (Docket No. 70; see Docket No. 73)
which was granted (Docket No. 83) and counsel appeared for him on November 1, 2017 (Docket
Responses to plaintiff’s pending motion were due by February 21, 2018, with replies due
by February 28, 2018, and the motion was deemed submitted without oral argument (Docket
No. 89). On January 23, 2018, this Court held a status conference where plaintiff noted his
motion and defendants stated their objections (Docket No. 90). Defendants sought additional
time to respond (Docket No. 91); that was granted and their response was due by March 7, 2018,
with replies due March 14, 2018 (Docket No. 92). Defendants submitted their attorney’s
declaration (Docket No. 93) and their Memorandum in response (Docket No. 94), while plaintiff
submitted his Reply Memorandum (Docket No. 95).
This is a civil rights action commenced initially by plaintiff pro se as an inmate in New
York State Department of Corrections and Community Services’ (“DOCCS”) custody. Plaintiff
sues defendant corrections officers for alleged excessive force, in violation of the Eighth
Amendment, and state tort claims for assault and negligence (Docket No. 1, Compl.). As an
inmate in Southport Correctional Facility (“Southport”) plaintiff claims that defendant
corrections officers came into his cell on October 16, 2011, and threw plaintiff 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).
Plaintiff 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). Defendants duly filed their Answer on September 30, 2016 (Docket
After the discovery deadline passed, defendants moved for summary judgment (Docket
No. 77). With the appearance of pro bono counsel, defense counsel sent a letter withdrawing this
motion (see Docket No. 85).
Plaintiff’s Motion to Reopen Discovery (No. 87)
Through counsel, plaintiff now moves to reopen discovery (Docket No. 87). He intends
to conduct limited document discovery, seeks audio and video recordings relevant to the
incident, depose several witnesses, and conduct other discovery as may become necessary
(Docket No. 87, Pl. Atty. Decl. ¶ 17). Despite plaintiff’s pro se conduct of this action prior to
appointment of pro bono counsel (see id. ¶¶ 4-5, 10-14, Exs. A-D), plaintiff did not seek certain
documents or depose witnesses (id. ¶¶ 11-14) or obtain video or audio recordings of plaintiff’s
October 16, 2011, visit with Jessica Medina which lead to the alleged incidents against him (id.
¶ 11, Ex. E). Plaintiff’s counsel originally prepared this motion to reopen discovery as a crossmotion to defendants’ (now withdrawn) summary judgment motion (id. ¶¶ 16, 9).
Plaintiff now seeks discovery reopened to depose the three defendants (id. ¶ 18). During
the January 23, 2018, status conference, defendants said they did not oppose this discovery
(Docket No. 90). Plaintiff also wants to depose nurse Mark Delauro, who examined plaintiff
after the alleged assault (Docket No. 87, Pl. Atty. Decl. ¶ 19). He seeks to depose Sergeant Joel
Ayers, who investigated plaintiff’s grievance from this incident (id. ¶ 20). As for documents
now sought, plaintiff seeks records related to inmate and witness Damon Holmes, who witnessed
plaintiff being lead to the shower and later heard the assault (id.¶ 21; see id. Ex. I, Holmes
Decl.). Plaintiff contacted defense counsel regarding reopening discovery and defense counsel
stated his opposition (id. ¶ 22, Ex. J).
Noting that plaintiff recently obtained pro bono counsel and this Court’s past position on
similar request (Docket No. 87, Pl. Memo. at 3, citing Williams v. Fischer, No. 13CV118,
2015 WL 3522431, at *3-4 (W.D.N.Y. June 4, 2015) (Scott, Mag. J.)); Tota v. Bentley,
No. 06CV514, 2008 WL 3540375, at *4-5 (W.D.N.Y. Aug. 12, 2008) (Scott, Mag. J.), plaintiff
urges that this Court reopen discovery. Considering the six factors used to determine whether
there is good cause to reopen, Williams, supra, 2015 WL 3522431, at *3, plaintiff concludes that
he has shown good cause (id. at 2-3, citing Young v. Southwest Airlines, 14CV1940, 2016 WL
3257008, at *2 (E.D.N.Y. May 4, 2016) (citations omitted)). First, a trial is not scheduled or
imminent; second, defendants oppose this request, but plaintiff argues that while this factor
favors the defense by itself this factor should not justify denial of his motion (id. at 3-4, 6).
Third, plaintiff asserts that defendants would not be prejudiced by this limited discovery (id. at
4); fourth, plaintiff believes he was diligent despite his incarceration in conducting discovery
prior to appointment of counsel (id.). Fifth, plaintiff contends that his discovery should be
foreseeable to defendants, since deposition of the opponents should be expected (id. at 4-5); and
sixth, plaintiff believes that deposing defendants (and the other limited discovery sought) would
lead to relevant evidence, namely ascertaining defendants’ credibility (yet to be tested since the
pro se plaintiff never examined defendants) (id. at 5). Since there were no disinterested nonparty eyewitnesses of the assault, plaintiff concludes that the case turns on the credibility of the
parties; without defendants’ deposition or production of visitor video or audio recordings that
assessment cannot occur (see id.).
Defendants object, pointing out that the discovery deadline has long passed (Docket
No. 94). Defendants contend plaintiff litigated extensively (Docket No. 93, Defs. Atty. Decl.
¶ 6), noting that defendants produced over 800 pages of documents to plaintiff (id. ¶¶ 7, 8-10).
Defendants discount the relevance of the visit prior to the incident to justify reopening discovery
(id. ¶ 11; see id. Ex. A). They argue that plaintiff has not demonstrated good cause for reopening
discovery in an over three-year-old case (Docket No. 94, Defs. Memo. at 4). Plaintiff could have
conducted written depositions rather than oral examination, but he did not chose to do so (id.).
Defendants argue prejudice from further delay in an over three-year-old case (id. at 5).
In reply, plaintiff argues he has shown good cause for reopening discovery (Docket
No. 95, Pl. Reply Memo. at 1-4).
Rule 16 Modification of Scheduling Order
Under Rule 16, a Scheduling Order “may be modified only for good cause and with the
judge’s consent,” Fed. R. Civ. P. 16(b)(4). Courts have construed the “good cause” requirement
“as the essential mechanism for cases becoming trial-ready in an efficient, just and certain
manner,” Kramer v. The Boeing Co., 126 F.R.D. 690, 692 (D. Minn. 1989); Rouse v. Farmers
State Bank, 866 F. Supp. 1191, 1198 (N.D. Iowa 1994), quoted in 3-16 Moore’s Federal
Practice—Civil § 16.14[a] (2018) (hereinafter “Moore’s”). While discipline and “pressure to
prepare that is deemed essential to timely case development and effective docket management,”
Moore’s, supra, § 16.14[a], are reasons for the good cause standard, as the commentator noted
“on the other hand, imposing too demanding a standard for changing these orders would be
unrealistic and could be counterproductive,” id. This Court has wide discretion in determining
whether good cause exists, id., § 16.14[b]. As held by this Court in Carlson v. Geneva City
School District, 277 F.R.D. 90, 95 (W.D.N.Y. 2011) (Payson, Mag. J.), “good cause depends on
the diligence of the moving party in seeking to meet the scheduling order,” citing Grochowski v.
Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003). The discovery period should not be extended
when the movant has had ample opportunity to pursue evidence during discovery, Carlson,
supra, 277 F.R.D. at 95; Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511
(2d Cir. 1989) (district court may deny, emphasis added, when a party had ample opportunity to
As noted by this Court in Williams v. Fischer, supra, 2015 WL 3522431, at *3, this Court
has discretion to preserve its Scheduling Order or to extend deadlines therein upon a showing of
good cause, Tota, supra, 2008 U.S. Dist. LEXIS 61885, at *8; Krawec v. Kiewit Constructors
Inc., No. 11 Civ. 0123, 2013 U.S. Dist. LEXIS 37132, at *23 (S.D.N.Y. Mar. 1, 2013); Shapard
v. Attea, No. 08CV6146, 2015 U.S. Dist. LEXIS 24651, at *5 (W.D.N.Y. Mar. 2, 2015)
(Siragusa, J.), including reopening discovery, Williams, supra, 2015 WL 3522431, at *3-4.
Factors for determining good cause and the diligence of the moving party include “1) the
imminence of trial; 2) whether the request is opposed; 3) whether the moving party foresaw the
need for additional discovery, in light of the discovery deadline set by the court; 4) prejudice to
the non-moving party; and 5) whether further discovery is likely to lead to relevant evidence,”
Krawec, supra, 2013 U.S. Dist. LEXIS 37132, at *23; Shapard, supra, 2015 U.S. Dist. LEXIS
24651, at *5, and also 6) plaintiff’s diligence in seeking discovery, see Young, supra,
2016 WL 3257008, at *2 (Docket No. 87, Pl. Memo. at 2-3).
One reason for appointment of pro bono counsel (or for counsel to appear in case already
commenced by a pro se litigant) heretofore pursued pro se is for professional eyes to look at
issues and procedures that the pro se litigant overlooked. Plaintiff’s counsel wishes to depose
defendants and other witnesses, and obtain certain additional documents and materials (such as
audio or video recordings of the inmate visitor’s area prior to the incident) to complete his
While plaintiff has had ample time to conduct discovery, much of that time he was
pursuing this case as an inmate pro se. There are limitations inherent in plaintiff’s incarceration
that limit the devices and means for his discovery. Even if defendants produced volumes of
paper production to him (and he retained it while in custody), other methods of discovery
(namely depositions beyond his own and that of the named defendants) had to await appointment
or the appearance of counsel.
Applying the six factors this Court recognized in Williams, supra, 2015 WL 3522431, at
*3-4, and the court in Young, supra, 2016 WL 3257008, at *2, trial is not imminent in this case.
Prior to appointment of counsel, defendants were about to move for summary judgment (see
Docket Nos 77, 85). Defendants do oppose this motion (see Docket Nos. 93, 94), and that factor
weighs in favor of denying reopening discovery. As plaintiff now argues, it was foreseeable that
(at a minimum) defendants would be deposed. As an inmate proceeding pro se, his ability (or
perceived ability) to depose witnesses including the parties is restricted. Even if plaintiff
managed to conduct the deposition of a defendant, there are questions or lines of inquiry plaintiff
may not have addressed that counsel would. Defendants would not be prejudiced by reopening
As for plaintiff’s diligence, plaintiff was not dilatory when he was pro se. As a pro se
litigant, he missed discovery devices and avenues but he has not stalled discovery or other
proceedings. Defendants filed a timely motion for summary judgment (Docket No. 77) on the
November 2, 2017, deadline (Docket No. 63), then plaintiff’s pro bono counsel filed their
appearances and were appointed the next day (Docket Nos. 74-76, 83). Defendants then
withdrew their motion (Docket No. 85). After appearance of pro bono counsel, plaintiff
diligently pursued continued depositions and plaintiff’s counsel learned the case, intending to file
the present motion to reopen discovery as a cross-motion to defendants’ summary judgment
motion until its withdrawal.
If this Court denies plaintiff’s motion and the defendants later move for summary
judgment, plaintiff may argue that, under Rule 56(d), he cannot respond to some defense
contention in support of their motion because of this incomplete discovery. If there are issues
that remain for trial after any dispositive motions (or if no dispositive motions are filed), plaintiff
may have to resort to the trial to examine witnesses they now seek additional time to pursue.
As for foreseeability, defendants could anticipate that they would be examined. Clearly,
relevant evidence will be elicited from the limited discovery plaintiff now seeks. On the video or
audio recording of the visitation room before the alleged assault, the basis for searching
plaintiff’s cell was the suspicion that he obtained contraband from Medina during the visit (see
Docket No. 93, Defs. Atty. Decl. Ex. A). In the memorandum from defendant Belz (id.), Belz
asked to revoke Medina’s visitation privileges until Belz reviewed the video from the SHU
visiting room. Whether the officers had reasonable suspicion to search plaintiff and his cell is
relevant, thus the recording that led to the search (and the incident at issue) is relevant and should
be subject to discovery.
An extension of discovery here will make this case trial (or disposition) ready in an
efficient and just manner.
Plaintiff does not state how much time he needs to conduct and complete discovery upon
reopening. Ninety days should be sufficient to complete discovery. A new Amended
Scheduling Order is at the Conclusion of this Order.
For the reasons stated above, plaintiff’s motion (Docket No. 87) to reopen discovery is
granted. Discovery thus shall be completed by June 27, 2018 (that is, 90 days from entry of
this Order); dispositive motions (including revival of previously filed motions) are due by
September 25, 2018 (90 days from the discovery deadline date).
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
March 29, 2018
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