Bussey v. Miller et al

Filing 49

DECISION AND ORDER denying in part without prejudice and dismissing in part as moot 42 Motion to Compel; 44 Motion to Compel. Signed by Hon. Leslie G. Foschio on 12/5/2017. (SDW) (Copy of D&O mailed to Pro Se Plaintiff at Marcy Correctional Facility)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________ 
JEWELL A. BUSSEY,

DECISION
and
ORDER

Plaintiff,
v.
T. MILLER, K. SIGNOR,
LT. ALAN GARDNER,
K. ECTOR, D. LYNCH,
DRAGONETTE,

16-CV-82A(F)

Defendants.
______________________________________
APPEARANCES:

JEWELL A. BUSSEY, Pro Se
99-A-2208
Marcy Correctional Facility
Box 3600
Old River Road
Marcy, New York 13403

ERIC SCHNEIDERMAN
New York State Attorney General
Attorney for the Defendants
DENETRA D. ROBERTS,
Assistant NYS Attorney General, of Counsel
Main Place Tower
350 Main Street, Suite 300A
Buffalo, New York 14202

In this prisoner civil rights action alleging a violation of Plaintiff’s Eighth
Amendment rights based on Defendants’ failure to protect Plaintiff against a serious
assault while at DOCCS’s Five Points Correctional Facility (“Five Points”) by another
inmate, Plaintiff, by papers filed October 20, 2017, moves to compel production of
certain documents, particularly copies of a video-tape of the assault, photographs of
Plaintiff’s injuries, the assailant’s weapon, an operation manual of the Five Points
Mental Health Unit, DOCCS Directive 4910 regarding contraband, Unusual Incident,
Use of Force and Inmate Injury Reports regarding the assault, certain documents in the
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Superintendent’s Disciplinary Hearing file, documents regarding inmate supervision at
Five Points and policies regarding protection of inmates (Dkt. 42) (“Plaintiff’s motion”).1
Plaintiff’s requests pursuant to Fed.R.Civ.P. 34(a) were served July 26, 2017.2 See Dkt.
46 ¶ 7. Plaintiff also seeks expenses of $150.
By papers filed November 13, 2017, Defendants state Defendants have provided
to Plaintiff all documents which are the subject of Plaintiff’s motion either in Defendants’
Rule 26(a)(1) disclosures or in response to Plaintiff’s Document Requests. Dkt. 46 ¶ 20.
As to Plaintiff’s request for a copy of Directive 4301 regarding providing mental health
services to inmates, Defendants assert such directive to be confidential but will provide
inspection by Plaintiff of a redacted form of the directive if Plaintiff requests. Dkt. 45 at
4. As to any other of Plaintiff’s requests, e.g., Five Points inmate supervision and
protection policies, Defendants state they have requested copies from DOCCS and will
provide copies to Plaintiff upon obtaining possession thereof to the extent such policies
exist. Dkt. 45 at 4-5. On November 22, 2017, Plaintiff replied to Defendants’
Response, requested oral argument and referred to Defendants’ Response as “fancy
legal documents with fancy legal jargon and seem credible.” Dkt. 48 at 1 (“Plaintiff’s
Reply”). However, in Plaintiff’s Reply, Plaintiff fails to specifically contradict Defendants’
assertions of the extent of Defendants’ document production in response to Plaintiff’s
Request and Plaintiff’s motion to date.
It is basic that a responding party is not obliged to produce documents over
which the party lacks either possession, custody or control. Shcherbakovskiy v. Da

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  The same motion papers were filed on November 6, 2017 (Dkt. 44).
  Plaintiff’s requests were not filed in accordance with Local R. Civ. P. 5.2(f (“Rule 5.2(f)”)). Plaintiff shall
comply with Rule 5.2(f) with respect to any future discovery requests.
2

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Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (“a party is not obliged to produce,
at the risk of sanctions, documents that it does not possess or cannot obtain”). Here,
the record supports that at present Defendants have responded to many of Plaintiff’s
requests and will continue to produce the remaining discovery material requested by
Plaintiff as it becomes available. As to Plaintiff’s Request for a copy of Directive 4301,
which Defendants assert contains confidential information, following Plaintiff’s review, if
Plaintiff’s believes in good faith the redacted portions of the directive may contain
relevant information Plaintiff may request an in camera review by the court of an
unredacted copy of the directive. As to the other items which Defendants have
requested from DOCCS in order to respond to Plaintiff, such as copies of the videotapes of the attack, Defendants shall file with the court a report on the status of these
items not later than December 29, 2017. Such report shall indicate whether the items
exist, the steps taken to ascertain such existence, and whether copies have then been
provided to Plaintiff. As to Plaintiff’s request for fees, pro se parites are not entitled to
such expenses pursuant to Fed.R.Civ.P. 37(a)(5)(A). See Abascal v. Fleckenstein,
2010 WL 3834839, at *11 (W.D.N.Y. Sept. 29, 2010) (holding plaintiff proceeding pro se
had not incurred any attorneys fees on motion to compel and, as such, no fees could be
awarded to plaintiff).

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CONCLUSION

Based on the foregoing, Plaintiff’s motion (Dkt. 42 and 44) is DENIED in part
without prejudice and DISMISSED in part as moot.
SO ORDERED.
/s/ Leslie G. Foschio  

________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: December 5, 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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