Smith v. Baugh et al

Filing 39

DECISION and ORDER GRANTING 31 Plaintiff's request to include the Report in Plaintiff's Opposition to Defendant's Motion for Summary Judgment; DENYING 36 Defendants' Motion to Strike; DISMISSING Defendants' 27 Motion f or Summary Judgment without prejudice to refiling following completion of further discovery consistent with this Decision and Order. An amended Scheduling Order extending the time for completion of discovery limited to depositions and any other of Plaintiff's outstanding discovery requests for four months will be filed simultaneously with this Decision and Order. SO ORDERED. Signed by Hon. Leslie G. Foschio on 01/28/2022. (TAH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
LAURIE ANN SMITH, Individually and as
Administratrix of the Estate of
Thomas J. Blancke, Sr., deceased,
v.

Plaintiff,

DECISION
and
ORDER
16-CV-906V(F)

ADRIAN BAUGH,
GEORGE BROWN,
MICHAEL WOODARD,
JOHN AND JANE DOES,
Defendants.
___________________________________
APPEARANCES:

THE COCHRAN FIRM
Attorneys for Plaintiff

STEPHANIE ROSE CORREA,
DEREK SCOTT SELLS, of Counsel
55 Broadway, 23rd Floor
New York, New York 10006

ERIC SCHNEIDERMAN
ATTORNEY GENERAL, NEW YORK STATE
Attorney for Defendants
JOEL J. TARRAGNOLI,
Assistant Attorney General, of Counsel
Main Place Tower
350 Main Street, Suite 300A
Buffalo, New York 14202
In this § 1983 action, Plaintiff alleges violations of Plaintiff’s decedent, Thomas
Blancke, Sr.’s (“Blancke”), Eight Amendment rights while Blancke was incarcerated at
the Five Points Correctional Facility (“Five Points”) operated by the New York State
Department of Corrections and Community Supervision (“DOCCS”) at which
Defendants were employed as corrections officers. Specifically, Plaintiff asserts
Blancke’s death as a result of a severe beating during the early morning hours of

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December 14, 2013, by Blancke’s cell-mate, one Brian Karris (“Karris”), was caused by
Defendants’ wrongful placing Karris, an inmate with violent propensities known to
Defendants, in Blancke’s cell in retaliation for Blancke’s misconduct. Plaintiff also
alleges Defendants Brown and Baugh’s failure to intervene promptly after hearing
sounds of fighting in the cell further contributed to Blancke’s death in violation of
Blanche’s Eighth Amendment right to receive reasonable protection while a prisoner at
Five Points. Finally, Plaintiff alleges Defendants failed to provide Blancke with more
timely medical assistance, unreasonably delayed by Defendants, which if administered
promptly could have avoided Blancke’s death as a result of Karris’s beating. The record
indicates Karris was subsequently convicted in state court of murder in causing
Blancke’s death. Plaintiff’s claim for loss of consortium has been withdrawn. Dkt. 31 at
13.
By papers filed September 7, 2018 (Dkt. 27), Defendants moved for summary
judgment (“Defendants’ motion”). Plaintiff’s Opposition was filed October 15, 2018 (Dkt.
31) (“Plaintiff’s Opposition”). Defendants’ Reply was filed October 26, 2018 (Dkt. 32)
(“Defendants’ Reply”). In Plaintiff’s Opposition, Plaintiff contends Defendants’ motion
should be denied as Plaintiff has not completed discovery, specifically, depositions in
the matter, and requests pursuant to Fed.R.Civ.P. 56(d) (“Rule 56(d)”) the court permit
Plaintiff to conduct depositions and obtain records pertaining to Defendants’ failure to
provide Blancke with medications needed to control his behavioral problems, to enable
Plaintiff to fully oppose Defendants’ motion. Dkt. 31-1 at ¶¶ 3-5 (noting Plaintiff has not
received discovery relating to the appropriateness of assigning Blancke and Karris to
the same cell based on their psychological conditions and Plaintiff’s lack of opportunity
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to examine relevant witnesses including Defendants). In Defendants’ Reply,
Defendants argued that although Plaintiff served document requests to which
Defendants responded on November 27, 2017, Plaintiff failed to notice and conduct any
depositions prior to the cut-off date for discovery of August 9, 2018, established by the
Scheduling Order of August 9, 2017 (Dkt. 16), and that Plaintiff never requested an
extension of the discovery cut-off date to do so. Dkt. 32 at 2. Defendants’ motion was
thereafter filed one month after the scheduled close of discovery.
Subsequent to Defendants’ motion filing, in letters to the court dated December
13, 2019 and December 17, 2019, (“the December 2017 letters”) Plaintiff requested
leave to include in Plaintiff’s Opposition a copy of a report concerning Blancke’s death
at Five Points issued by the New York State Commission of Correction 1 (“the
Commission”) dated June 27, 2017 (“the Report”) which had been included in
Defendants’ document production but as a result of “law office error” was overlooked by
Plaintiff’s counsel and thus not included in Plaintiff’s Opposition. Dkt. 35 at 1. 2
According to Plaintiff, based on the Commission’s review of surveillance videos, the
Report bolsters Plaintiff’s contentions that Defendants failed to properly patrol the
Special Housing Unit (“SHU”) gallery where Blancke’s cell was located during the 5 – 6
a.m. time frame, as required by DOCCS directive, on December 14, 2013, during which
the altercation allegedly occurred and failed to respond promptly to sounds from the cell

1 The New York State Commission on Corrections, created by N.Y. Corr. Law § 41 (McKinney 1975), is
required by N.Y. Corr. Law § 47 (McKinney 2021) to investigate and issue reports concerning the deaths
of inmates incarcerated at state and local prisons.
2 An unredacted version of the December 13, 2019 Letter was docketed in restricted form, limiting access
to the parties and the court (Dkt. 34). The December 17, 2019 Letter was filed in redacted form (Dkt. 35),
and in unredacted form under seal (Dkt. 37-1).
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indicating a fight was taking place which failure allowed Karris to assault Blancke for
approximately 40 minutes without any intervention by Defendants, constituting an
Eighth Amendment violation based on Defendants’ failure to protect Blancke. Dkt. 35 at
2. Plaintiff further contends the Report provides evidence supporting Plaintiff’s
allegations that the sounds emanating from the cell should have alerted Defendants
Baugh and Brown to Blancke’s need for assistance supporting Plaintiff’s Opposition of
Defendants’ motion. See Dkt. 35 at 2.
Plaintiff further argues that the Report findings that Defendants’ delay in
responding to Blancke’s, who was still alive when Defendants responded, severe and
palpable injuries by administering immediate first aid significantly contributed to
Blancke’s death. Additionally, according to Plaintiff, the Report creates material issues
of fact as to whether Karris and Blancke were properly approved and designated for
double-celling, i.e., housing, in the same call based on their respective psychological
profiles and Defendants’ failure to provide for Blancke’s medical needs prior to the
assignment leading to the wrongful double-celling with Karris. Id. Based on the
Report’s finding of impropriety by Defendants Baugh and Brown in providing the
required degree of protection to inmates against reasonably foreseeable threats and
intervention in the case of assaults by another inmate, which Plaintiff contends provides
evidence supportive of Plaintiff’s allegations, Plaintiff requests that the Report be
included in Plaintiff’s Opposition despite counsel’s failure to include it in Plaintiff’s
Opposition by October 15, 2018 as required by the court’s briefing schedule for filing of
opposition to Defendants’ motion. See Dkt. 29.
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By papers filed December 19, 2019, Defendants moved to strike Plaintiff’s
December 2019 letters to the court, Dkt. 36, contending the Report was included in
Defendants’ document productions, a fact readily discernible by examination of
Defendants’ production in digital form on a USB drive according to Defendants. Dkt. 361 ¶¶ 33-34. Defendants, accordingly, maintain Plaintiff fails to demonstrate Plaintiff
exercised reasonable diligence in conducting discovery and thus fails to establish good
cause required by Fed.R.Civ.P. 16(b) for reopening discovery. Dkt. 36-2 at 3-4.
Defendants further contend Plaintiff had an adequate period of time (one year) within
which to obtain discovery prior to Defendants’ motion, Dkt. 36-2 at 4-5, and that
Plaintiff’s Rule 56(d) request is based on pure speculation as to what evidence, if any,
Plaintiff expects to obtain pursuant to Rule 56(d) through belated depositions. Dkt. 36-2
at 5. Defendants also argue that nothing in the Report’s findings sufficiently implicates
Defendants to the extent necessary to establish there exists material triable issues of
either Defendants’ deliberate indifference or personal involvement, essential elements
of Plaintiff’s Eighth Amendment claims. Id. at 8-9. Finally, Defendants maintain the
December Letters fail to comply with Local R.Civ.P. 7(a)(1) which requires a motion with
supporting affidavit for all pretrial relief in civil cases.
Plaintiff’s opposition to Defendants’ motion to strike was filed January 2, 2020
(Dkt. 37) in which Plaintiff contended that Plaintiff’s depositions of Defendants were
expected to be coordinated with Defendants’ agreement with the schedule for
deposition discovery in Plaintiff’s pending N.Y. Court of Claims negligence case against
New York State on account of Blancke’s death in order to avoid unnecessary
duplication. Dkt. 37-1 at 5. According to Plaintiff, Plaintiff’s ability to conduct
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depositions in this case and the Court of Claims case on a coordinated basis was
hampered by a then pending motion in the Court of Claims matter thus excusing Plaintiff
from strict compliance with the Scheduling Order’s October 2017 discovery cut-off
seeking Defendants’ depositions prior to the discovery cut-off date. Dkt. 37-1 at 6. The
New York Court of Claims motion was decided by Judge Richard E. Sise on August 30,
2019. Dkt. 37-3 at 20. The present status of the Court of Claims case was not in the
record.
In Defendants’ Reply, filed January 6, 2020 (Dkt. 38), Defendants contend
Defendants never agreed to “keep discovery open” in reference to Plaintiff’s action in
the Court of Claims but Defendants did acknowledge that coordination of depositions
would be accomplished. See Dkt. 38-1 ¶¶ 4-6 (Declaration of Christopher L. Boyd Ass’t
Attorney General dated January 6, 2020) (Plaintiff’s negligence claims in that action
were dismissed based on late notice of claim; Plaintiff’s wrongful death claim was
allowed to proceed, see Dkt. 37-3). Defendants also reiterated that Plaintiff failed to
request any amendment of the Scheduling Order in this case to enlarge the discovery
period. Dkt. 38 at 3-4. Oral argument on Plaintiff’s Rule 56(d) motion and requests and
Defendants’ motion to strike was deemed unnecessary.
It is fundamental in federal civil litigation that the court has broad discretion in its
supervision of pre-trial discovery. In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (“‘A
trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with
regard to discovery are reversed only upon a clear showing of an abuse of discretion.’”
(quoting In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir.1998)). Further, law office
failures to comply with required time-tables in civil cases may be excused where such
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failures arise from excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B). Excusable neglect
is a flexible rule based on the equities of the circumstances giving rise to the oversight
and in order to achieve substantial justice. See Pioneer Inv. Services, Inc. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380, 390-95 (1993); Cohen v. Bd. of Trustees of
Univ. of D.C., 819 F.3d 476, 479 (D.C. Cir. 2016) (excusable neglect is a totality of
circumstances inquiry); see also Williams v. KFC Nat. Management Co., 391 F.3d 411,
415 (2d Cir. 2004) (excusable neglect is an equitable determination based on
consideration of “all relevant circumstances” (citing Pioneer Inv. Services, Inc., 507 U.S.
at 395)). Finally, Rule 1 of the Federal Rules of Civil Procedure requires the court to
apply the rules to achieve “just, speedy, and inexpensive determination” (underlining
added) in cases before the court.
Here, it appears Plaintiff’s counsel may have been inattentive to both the October
2017 discovery cut-off date as well as the inclusion of the Report in Defendants’
document production which, but for counsel’s oversight, would have enabled Plaintiff to
timely seek additional time for deposition practice by request to the court to amend the
Scheduling Order and to include the Report in Plaintiff’s Opposition to Defendants’
motion. Here, it is at least arguable whether the Report, for purposes of Fed.R.Civ.P.
56(c)(1) (on summary judgment material questions of fact require admissible evidence),
constitutes admissible evidence, see Bridgeway Corp. v. Citibank, 201 F.3d 134, 143
(2d Cir. 2000) (governmental agency investigative reports admissible evidence pursuant
to Fed.R.Evid. 803(8)(c) where report contains factual findings based on investigation
pursuant to lawful authority unless “‘sources of information or other circumstances
indicate lack of trustworthiness’”). Ross v. American Exp. Co. 36 F.Supp.3d 407, 435 n.
7

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27 (S.D.N.Y. 2014) (data contained in official government report and study, i.e.,
Consumer Financial Protection Bureau (“CFPB”) arbitration study, was admissible
under public records exception to hearsay rule, FRE 201(b), (d) and 803(8)).
Defendants do not argue the Report, required by N.Y. Corr. Law § 47 (Commission on
Corrections Medical Board is authorized to “[i]nvestigate and review the cause and
circumstances surrounding the death of any incarcerated individual of a correctional
facility” and to submit its report on such death to the Commission), does not make
factual findings based on an investigation, required by law or is otherwise lacking in
trustworthiness. Additionally, Plaintiff’s counsel’s belief that depositions were to be
scheduled after a pending motion in the Court of Claims action was decided provides
support that counsel was not indifferent to the need for depositions to be conducted
prior to filing dispositive motions. It would be odd that experienced counsel would delay
depositions in a case like this without some reason. Further, given the gravity of
Plaintiff’s claims, the court finds that Plaintiff’s counsel’s failure to obtain Defendants’
formal stipulation to extend the period for discovery should not result in Plaintiff being
rendered unable to fairly oppose summary judgment without Defendants’ depositions
and other necessary discovery.
In the instant case, both Rule 6(b)(1)(B) and Rule 56(d) support Plaintiff’s request
to extend discovery to permit her to depose the named Defendants. Although Plaintiff
has not separately moved pursuant to Rule 6(b)(1)(B) for an extension of time to
conduct further discovery to oppose summary judgment, especially the taking of
depositions, the court construes Plaintiff’s request for such relief as the requisite motion
under Rule 6(b)(1)(B). See United States v. $ 41,352.00 U.S. Currency, 2015 WL
8

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5638211, at *4 (W.D.N.Y. Sept. 24, 2015) (construing request for an enlargement of
time to file answer made in opposition to a motion to strike a claim as a motion pursuant
to Fed.R.Civ.P. 6(b)(1)(B) to extend time to file answer for excusable neglect).
Significantly, the required “excusable neglect” can be satisfied by, inter alia, attorney
incompetence. $ 41,352.00 U.S. Currency, 2015 WL 5638211, at *4 (citing Baicker–
McKee Janssen Corr, FEDERAL CIVIL RULES HANDBOOK 2015 Thomson Reuters at
324 (citing caselaw)).
Further, although a party opposing summary judgment is not automatically
entitled to discovery, Gualandi v. Adams, 385 F.3d 236, 244-45 (2d Cir. 2004), Rule
56(d) permits such discovery provided the nonmoving party who seeks further discovery
to oppose summary judgment makes a “show[ing] by affidavit or declaration” of the
reasons the requested discovery is needed. “To request discovery under Rule 56[(d)], a
party must file an affidavit describing: (1) what facts are sought and how they are to be
obtained; (2) how these facts are reasonably expected to raise a genuine issue of
material fact; (3) what efforts the affiant has made to obtain them; and (4) why the
affiant's efforts were unsuccessful.” Id. “Even where a rule 56[(d)] motion is properly
supported, a district court may refuse to allow additional discovery if it deems the
request to be based on speculation as to what potentially could be discovered.” Nat'l
Union Fire Ins. Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 117 (2d Cir. 2001) (internal
quotation marks and citation omitted). Whether to permit discovery pursuant to Rule
56(d) is a matter of the court’s discretion. Id.
In support of the requested discovery, Plaintiff filed the Correa Declaration in
Opposition to Defendants’ Motion for Summary Judgment (Dkt. 31-1) (“Correa
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Declaration”), in which Plaintiff’s counsel, Stephanie R. Correa, Esq. (“Correa”),
describes the discovery sought, i.e., the depositions of the named Defendants,
discovery pertaining to treatment of Plaintiff’s bipolar and ADHA conditions, and the
circumstances under which Karris was assigned to Plaintiff’s cell. Correa Declaration ¶
4. Plaintiff explains she expects the information to be obtained from the requested
discovery will assist Plaintiff in establishing the Eighth Amendment Claims, and that
without the discovery, Plaintiff will be required to rely on declarations provided by the
Defendants without an opportunity to cross-examine such parties. Id. ¶¶ 3-4. Plaintiff
further maintains the requested depositions will be taken in connection with the parallel
New York Court of Claims action. Id. ¶ 5. In Plaintiff’s Memorandum of Law in
Opposition to Summary Judgment (Dkt. 31) (“Plaintiff’s Memorandum”), Plaintiff
attributes the failure to earlier schedule the depositions now sought to an intention to
conduct the depositions of the named Defendants in both the instant case and the
parallel Court of Claims action at the same time, an arrangement to which former
Assistant New York Attorney General Christopher Boyd previously agreed at a
scheduling conference before the undersigned and reiterated by the Assistant Attorney
General as defense counsel in the Court of Claims case on December 19, 2019.
Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Strike at 2-3 (Dkt. 37-1
at 5-6) (citing August 9, 2017 Scheduling Conference). Although generally, calendaring
errors will not support excusable neglect for purposes of Rule 6(b)(1)(B), see Shorette
v. Harrington, 234 Fed. Appx. 3, 5 (2d Cir. 2007) (“law office calendaring error ... does
not constitute excusable neglect”), in the instant case, Plaintiff’s understanding that
depositions of the named Defendants would be coordinated so as to provide for one set
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of depositions to be taken with regard to both the instant case and the Court of Claims
action established more than a “calendaring error.”
While not condoning Plaintiff’s counsel’s apparent oversight in conducting
discovery and to oppose Defendants’ motion, neither can the court in good conscience
overlook the harsh impact of such oversight, unless excused by the court in the interest
of justice, see Lent v. Signature Truck Systems, Inc., 2009 WL 3305788, at * 3
(W.D.N.Y. Oct. 14, 2009) (permitting additional discovery “in the interest of justice” of
having the matter determined on its merits), upon Plaintiff’s ability to prosecute this
action. For example, depositions of Defendants may provide evidence sufficient to
avoid summary judgment on at least Plaintiff’s failure to protect claim. At Karris’s
murder trial Defendant Baugh, who was assigned guard duty on the SHU gallery where
Blancke’s cell was located, testified he did not hear any sounds while on duty signifying
a fight was then occurring in Blancke’s cell that should have alerted Baugh to
immediately investigate and, if necessary, intervene. See Dkt. 31-1 at 495-96. Such
denial appears contrary to the Report’s finding that surveillance video of Blancke’s cell
area included sounds of a serious altercation at that time. See Dkt. 34-1 at 10. Nor do
Defendants point to serious prejudice to Defendants if discovery is reopened on a
limited basis. Accordingly, the court finds Plaintiff’s counsel’s failure to timely seek to
enlarge the discovery period to allow for depositions and to include the Report in
Plaintiff’s Opposition to constitute excusable neglect and that in the circumstances the
court should exercise its discretion in supervising discovery to permit Plaintiff to do so.

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CONCLUSION
Based on the foregoing, Plaintiff’s request to include the Report in Plaintiff’s
Opposition to Defendants’ motion (Dkt. 31) is GRANTED; Defendants’ motion to strike
(Dkt. 36) is DENIED; Defendants’ motion (Dkt. 27) is DISMISSED without prejudice to
refiling following completion of further discovery consistent with this Decision and Order.
An amended Scheduling Order extending the time for completion of discovery limited to
depositions and any other of Plaintiff’s outstanding discovery requests for four months
will be filed simultaneously with this Decision and Order.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dates: January 28th, 2022
Buffalo, New York

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