Scott v. Howard et al
Filing
108
DECISION and ORDER dismissing 94 Motion ; dismissing 97 Motion as moot. Signed by Hon. Leslie G. Foschio on 8/8/2018. (SDW)(Copy of Decision and Order mailed to Pro Se Plaintiff at Green Haven Correctional Facility)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RANDOLPH SCOTT,
Plaintiff,
DECISION
and
ORDER
vs.
15-CV-1000A(F)
TIMOTHY B. HOWARD,
COUNTY OF ERIE,
Defendants.
___________________________________
APPEARANCES:
RANDOLPH SCOTT, Pro Se
15-B-2127
Green Haven Correctional Facility
Box 4000
Stormville, New York 12582
MICHAEL A. SIRAGUSA
ERIE COUNTY ATTORNEY
Attorney for the Defendants
ERIN E. MOLISANI,
Assistant County Attorney, of Counsel
95 Franklin Street, 16th Floor
Buffalo, New York 14202
In this § 1983 prisoner civil rights action, alleging violations of Plaintiff’s First,
Fifth, Eighth and Fourteenth Amendment rights to Islamic religious services,
consultation with an Iman, and denial of general library access while Plaintiff was in
keep-lock as a pretrial detainee in Defendants’ custody, Plaintiff, by papers filed June
11, 2018, moves pursuant to Fed.R.Civ.P. 30(d)(3) for an order to preclude Defendants
from attempting to examine Plaintiff with respect to Plaintiff’s record of criminal
convictions at Plaintiffs’ oral deposition (“Plaintiff’s motion”) (Dkt. 94). Specifically,
Plaintiffs’ motion asserts that Plaintiff’s motion is in response to Defendants’ May 24,
2018 letter to Plaintiff (“Defendants’ May 24, 2018 Letter”), filed by Plaintiff as Dkt. 97, in
which Defendants sought to memorialize Plaintiff’s failure to appear at Plaintiff’s oral
deposition to be conducted by video-conference hook-up, which had originally been
scheduled for May 24, 2018. A Scheduling Order (Dkt. 96) required Defendants’
response to Plaintiff’s motion by June 29, 2018 and Plaintiff’s reply by July 13, 2018.
Plaintiff’s scheduled deposition was cancelled as a result of Plaintiff’s failure to appear
apparently because Plaintiff required medical treatment outside the facility at that time.
See Dkt. 97 at 3. In Defendants’ May 24, 2018 Letter, Defendants explained to Plaintiff
that as a convicted person, Plaintiff no longer enjoyed any self-incrimination privilege
with respect to his conviction and warned Plaintiff that refusal to answer such questions
at a rescheduled deposition of Plaintiff could result in sanctions, Dkt. 97 at 4, 5. By
papers filed June 22, 2018 (Dkt. 97), Plaintiff requested the court sign an order directing
such preclusion. Specifically, Plaintiff asserts any deposition questions by Defendants
regarding Plaintiff’s history of criminal convictions seek information irrelevant to
Plaintiff’s claims and would “prejudice and incriminate” Plaintiff during the deposition
and at trial. Dkt. 94 at 1.
By papers filed June 26, 2018 (Dkt. 101), Defendants opposed Plaintiff’s motion
while confirming Defendants’ intention to question Plaintiff about Plaintiff’s current
criminal conviction only but contending Plaintiff’s motion was without merit as evidence
of Plaintiff’s criminal conviction is relevant evidence admissible to attack Plaintiff’s
credibility at trial and a consideration of Plaintiff’s damages, Dkt. 101-1 at 4.
Defendants further argue that Plaintiff’s motion, filed before the actual conduct of
Plaintiff’s deposition, was premature in that Fed.R.Civ.P. 30(d)(2) requires objection to
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any deposition questions or refusals to answer be placed on the record at the deposition
as a predicate to a motion pursuant to Fed.R.Civ.P. 30(d)(3) which allows a deposed
party to request the court terminate or limit deposition where an examining party
conducts deposition “in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party” (“Rule 30(d)(3)”). Id. at 3. Under
Rule 30(d)(3) the court may terminate the deposition or limit the questioning of the
deponent as provided in Fed.R.Civ.P. 26(c)(1)(D) (“Rule 26(c)(1)(D)”) (court may upon
good cause issue protective orders for the purpose of limiting discovery including
forbidding deposition questions). Defendants also contend Plaintiff is not entitled to a
protective order pursuant to Rule 26(c)(1)(D) as Plaintiff has failed to demonstrate good
cause as required by Rule 26(c) in that Plaintiff does not show why questions directed
to his criminal conviction will cause Plaintiff undue annoyance, embarrassment, are
oppressive, or will cause Plaintiff undue burden or expense. Dkt. 101-1 at 5.
On July 5, 2018, Plaintiff filed Plaintiff’s Reply asserting Defendants’ attorney
seeks to prejudice Plaintiff by creating judicial bias based on Plaintiff’s status as an
African-America Muslim and realleging in general terms Plaintiff’s § 1983 claims. Dkt.
103 at 1-2. Plaintiff also filed at that time a document contending Defendants’ attorney
was guilty of deceitful conduct and “collusion” thus entitling Plaintiff under New York law
to treble damages, Dkt. 104 at 1, and again reiterating the basis for Plaintiff’s claims.
Dkt. 104 at 2. On July 16, 2016, Plaintiff filed Plaintiff’s Additional Fact(s) in further
support of Plaintiff’s motion (Dkt. 105) asserting Defendants, by referencing Plaintiff’s
“criminal history,” were attempting to interfere (“rob”) Plaintiff of his civil rights
specifically accusing Defendants’ attorney of attempting to “bamboozie [sic] and
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hoodwink” Plaintiff by submitting Defendants’ arguments in opposition to Plaintiff’s
motion, Dkt. 105 at 1, and also asserting that failure by the court to grant Plaintiff’s
motion would constitute a “miscarriage of justice.” Dkt. 105 at 3.
On July 30, 2018, Plaintiff filed Plaintiff’s Affidavit In Support of Video Deposition
Held July 24, 2018 (Dkt. 106) (“Plaintiff’s July 30, 2018 Affidavit”), in which Plaintiff
advised that Defendants conducted Plaintiff’s video deposition on July 24, 2018, while
Plaintiffs was residing at Green Haven Correctional Facility at Stormville, New York,
also asserting Defendants “‘showed tained [sic] integrity and ‘judicial bias’ in concert
between the defendant(s) and Court by failure of the Court to rule on/grant” Plaintiff’s
motion and that, as result of such failure, “the Court directly prejudice [sic] plaintiff
“‘deliberately’.” Dkt. 106 at ¶ 2. Plaintiff further asserts Defendants’ questions to
Plaintiff at the deposition regarding Plaintiff’s criminal record were irrelevant and were
intended to justify Defendants’ violations of Plaintiff’s constitutional rights and violation
of state law as Plaintiff has alleged. Dkt. 106 at 1-2. Plaintiff also informed Defendants
and the court that Plaintiff was prepared to “discuss settlement” of the matter. Dkt. 106 ¶
8. On July 30, 2018, Plaintiff also filed Plaintiff’s Additional Affidavit In Claim [sic] and In
Support of Video Deposition Held July 24, 2018 by Defendant(s), Dkt. 107 (“Plaintiff’s
Further Affidavit”). In Plaintiff’s Further Affidavit, Plaintiff confirmed Plaintiff’s deposition
was conducted July 24, 2018, Dkt. 107 ¶ 2 and that (1) Plaintiff made several objections
based on relevancy to Defendants’ questions, id. ¶ 3, (2) Defendants’ attorney refused
to explain why such questions were relevant, id. ¶ 4, (3) Defendants’ attorney had
directed the court stenographer to record Plaintiff’s lack of response to such questions,
id. ¶ 5, and (4) because the court “refused to give a reply to either party regarding”
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Plaintiff’s requested order before the deposition, “the court and defendant(s) in concert
[sic] prejudiced the plaintiff.” Id. ¶ 6. Plaintiff therefore requested the court grant
Plaintiff a judgment based on Plaintiff’s “prima facie case.” Id.
At the outset, the court notes that inasmuch as Plaintiff’s deposition, to which
Plaintiff’s motion was directed, was taken on July 24, 2018, Plaintiff’s motion is moot
and should be dismissed as such. However, given the vigor of Plaintiff’s repeated
assertions of wrongful conduct by Defendants and prejudice against Plaintiff by the
court, by not addressing Plaintiff’s motion prior to the Julye 24, 2018 deposition, and in
light of Plaintiff’s pro se status, the court will nevertheless address Plaintiff’s contentions
in the interest of guidance to the parties should Plaintiffs choose to pursue the issue or
a similar issue arise in the case.
First, as Defendants contend, Plaintiff’s motion, brought under Rule 30(c)(2)1 was
premature as Rule 30(c)(2) contemplates that objections to deposition questioning be
first placed on the record to provide the basis for a motion pursuant to the rule to limit or
foreclose the disputed questioning. Scott-Iverson v. Independent Health Association,
Inc., 2016 WL 1458239, at *3 (W.D.N.Y. Apr. 14, 2016) (all objections to evidence and
conduct issues are to be placed on record at the deposition in response to the deposing
party’s questions until excused by the deposing party or termination of the deposition by
the court (citing cases). Second, given the broad scope of discovery available under
Fed.R.Civ.P. 26(b)(1), Moresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964
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Although Plaintiff’s motion cites Fed.R.Civ.P. 30(d)(3) as the source of relief he seeks, a plain reading
of the motion papers establishes the relief Plaintiff seeks is available under Rule 30(c)(2) and, in light of
Plaintiff’s pro se status, the court construes it as such.
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F.2d 106, 114 (2d Cir. 1992) (“[T]he scope of discovery under Fed.R.Civ.P. 26(b) is very
broad . . ..”) (citations omitted), the range of subject matter deemed relevant to a party’s
defense, as applicable to Defendants, is equally broad. Fed.R.Civ.P. 26(b)(1)
authorizes any party to discovery of information not privileged which is relevant to a
claim or defense provided the discovery request if proportional to the needs of the case
based on several enumerated factors. Klipsch Group, Inc. v. ePRO E-Commerce
Limited, 880 F.3d 620, 636 (2d Cir. 2018) (citing Fed.R.Civ.P. 26(b)(1)). Particularly, as
to the central objection asserted by Plaintiff, under Fed.R.Evid. 609(a)(1)((B) and (b)(1)
(“Rule 609 ___”), a felony conviction rendered not more than 10 years old at the time of
trial “must be admitted into evidence” if the court determines pursuant to Fed.R.Evid
403, that “the probative value,” supported by specific facts and circumstances, of the
fact of the conviction “substantially outweighs its prejudicial effect.” According to Rule
609(a) such a conviction is admissible evidence for the purpose of “attacking a
witness’s character for truthfulness.” Here, the court takes judicial notice, Fed.R.Evid.
201(b)(2), that Plaintiff was incarcerated based on his conviction on July 13, 2015 in
Erie County Court of Robbery 2d Degree and sentenced to a five-year term of
imprisonment. Thus, since under Fed.R.Evid. 402 only relevant evidence is admissible,
there is little doubt that questioning Plaintiff with regard to the fact of his present felony
conviction or, for that matter, any other felony conviction within the scope of Rule 609(b)
seeks relevant information which may be used against Plaintiff on the issue of Plaintiff’s
credibility should Plaintiff testify at trial. Kelley v. City of Hamden, 2016 WL 5348568, at
*5 (D.Conn. Sept. 23, 2016) (quoting Johnson v. Schmidt, 1992 WL 135237, at *2
(E.D.N.Y. May 28, 1992) (Rule 609 “permits evidence of prior convictions for the
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purpose of impeaching credibility at trial. The plaintiff’s past convictions are therefore
relevant to the issue of credibility and are subject to discovery.”)) Additionally, Plaintiff
does not represent that Plaintiff has received a pardon on his conviction that would bar
admissibility under Fed.R.Evid. 609(c). Thus, Plaintiff’s contention that Defendants’
conduct in questioning Plaintiff in this regard seeks irrelevant information or is abusive,
warranting limitation by the court pursuant to Rule 26(c), is without merit.
Moreover, it is well-settled that once a conviction has become final and no longer
subject to appellate review, the convicted party may not interpose, in response to a
deposition question or one at trial, an objection based on the Fifth Amendment privilege
against self-incrimination. See Pillsbury Co. v. Conboy, 459 U.S. 248, 273 (1983)
(Blackmun, J. concurring) (quoting Brown v. Walker, 161 U.S. 591, 597 (1986)) (“It is, of
course, black-letter law that a witness cannot assert a Fifth Amendment privilege not to
testify ‘if the testimony sought cannot possibly be used as a basis for, or in aid of,
criminal prosecution against the witness.’ ”); see also Andover Data Serv. v. Statistical
Tabulating Corp., 876 F.2d 1080, 1082 (2d Cir. 1989) (“The prohibition against
compelling the testimony of a witness in any setting is predicated upon there being a
real danger that the testimony might be used against the witness in later criminal
proceedings.”). Here, although Defendants do not provide any references or other
documentation confirming Plaintiff’s conviction, it may be fairly assumed that Plaintiff’s
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present status as an incarcerated felon confirms Plaintiff’s conviction in 2015 has
become final.2
Finally, Plaintiff’s assertion that the court’s failure to rule on Plaintiff’s motion prior
to Plaintiff’s rescheduled July 24, 2018 deposition places the court in some form of
concerted action with Defendants prejudicial to Plaintiff’ is opposed by two facts. First,
a careful scrutiny of the record reveals that in neither Plaintiff’s motion papers, in
Defendants’ opposition thereto, nor in Plaintiff’s reply was the date of the rescheduled
deposition stated. The only mention of this date was provided in Plaintiff’s July 30, 2018
Affidavit filed July 30, 2018 (Dkt. 106) and Plaintiff’s Further Affidavit also filed July 30,
2018 (Dkt. 107) both after the deposition was conducted. Indeed, no mention of this
date was included in Defendants’ May 24, 2018 Letter to Plaintiff. See Defendants’ May
24, 2018 Letter filed at Dkt. 97 (passim). Thus, the court was unaware of any need to
address Plaintiff’s motion prior to Plaintiff’s rescheduled deposition. Second, Plaintiff
could have requested that the rescheduled deposition, the date of which Plaintiff surely
must have been appraised of well-before July 24, 2018, be stayed pending the court’s
determination of Plaintiff’s motion; however, the record fails to indicate Plaintiff did so.
Accordingly, Plaintiffs’ bald assertion that the absence of an earlier judicial ruling on
Plaintiff’s motion prior to the rescheduled deposition on July 24, 2018 somehow
bespeaks the court’s improper collusion with Defendants to Plaintiff’s disadvantage is
baseless.
2
As the court’s research failed to reveal any published Appellate Division or New York Court of Appeals
decision with regard to Plaintiff’s conviction, the court presumes Plaintiff’s conviction was based on a
guilty plea which included a waiver of Plaintiff’s right to appeal.
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CONCLUSION
Based on the foregoing, Plaintiff’s motions (Dkt. 94 and 97) are DISMISSED as
moot.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: August 8, 2018
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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