Morrison v. Hartman et al

Filing 65

ORDER granting in part and denying in part 42 Motion to Compel; granting in part and denying in part 51 Motion to Compel; denying 51 Motion for Sanctions. Signed by Hon. Jonathan W. Feldman on 3/19/2010. (RJO)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
PATRICK J. MORRISON, Plaintiff, v. E.J. HARTMAN, et al., Defendants. Preliminary Statement Currently pending before the Court are pro se plaintiff's motions to compel (Dockets ## 42, 51) and motion for sanctions (Docket # 51). 2007. Plaintiff filed the instant action on December 20, His Complaint alleges claims for cruel and (Docket # 1). DECISION AND ORDER 07-CV-6633

(Docket # 1).

unusual punishment in violation of 42 U.S.C. § 1983.

Specifically, plaintiff claims that from October 3, 2007 through October 30, 2007, while confined at the Attica Correctional Facility, defendants physically beat him, sexually assaulted him, and

threatened his life and the lives of his family. Discussion

(Docket # 1).

Plaintiff's Motions to Compel: Currently pending before the Court are two motions to compel filed by plaintiff. 51). (Dockets ## 42,

With both motions, plaintiff seeks to compel responses to his (Dockets ## 42, 51). Plaintiff

Fourth set of Interrogatories.

argues that he has not exceeded the limit on the permissible number of Interrogatories and, therefore, defendants should be compelled to respond.

In response to plaintiff's motions, defendants argue that prior to serving his Fourth set of Interrogatories, plaintiff had already "exceeded the limit on the number of Interrogatories that can be served on each defendant set forth in Rule 33(a)" and "has not sought leave to serve more interrogatories than allowed by Rule 33." See

Declaration of Emil J. Bove, Jr., Esq. (hereinafter "Bove Decl.") (Docket # 55) at ¶ 12. Specifically, defendants assert that

"plaintiff has served 60 interrogatories on defendant Hartman, has served 42 interrogatories on defendant Kingsley, and has served 46 interrogatories on defendant Kozlowski." that the Interrogatories in Id. Defendants also argue fourth demand "are

plaintiff's

repetitious and or covered by the information sought in his first and second interrogatories" or "is covered by the directions contained in the Court's August 4, 2009 Order, Docket Number 50." Id. at ¶ 13.

By Decision and Order dated August 4, 2009, the Court decided, inter alia, two of plaintiff's prior motions to compel (Dockets ## 18, 26). (Docket # 50). In its Decision and Order, the Court

ordered the following: At a minimum, defense counsel must (1) speak to his clients to ascertain whether a defendant has any personal recollection of a prior complaint or lawsuit that may be responsive, and (2) review the defendants' personnel files to determine whether any information contained therein is responsive. The Court directs that defense counsel file an affidavit with the Court confirming that a good faith investigation has been conducted into relevant prior complaints and disclosing the results of that investigation. If relevant documents are discovered but being withheld from disclosure, counsel shall submit such documents to the Court for in camera review.

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See Decision and Order dated August 4, 2009 (Docket # 50) at pp. 3-4 (footnote omitted). The Court further ordered that:

First, to the extent photographs of the cell plaintiff was confined in at Attica Correctional Facility in October 2007 exist, they should be produced. Second, witness statements prepared by any employee of the State of New York in connection with the events from which the plaintiff's claims arose must be produced if they have not already been disclosed. See id. at p. 5 (footnote omitted). The Court's view of the docket

indicates that defendants have not complied with the Court's August 4, 2009 Decision and Order. However, in their response to

plaintiff's motions to compel (Dockets ## 42, 51) they indicate that the Court should deny certain of plaintiff's requests for responses because said responses are "Covered by Order dated August 4, 2009." See Exhibits "B," "C" and "D" annexed to Bove Decl. (Docket # 55). The Court, having reviewed plaintiff's First, Second, Third and Fourth sets of Interrogatories/discovery demands, finds that

plaintiff has in fact exceeded the number of Interrogatories allowed under Rule 33(a)1 of the Federal Rules of Civil Procedure ("FRCP"). Additionally, the Court finds that plaintiff's Fourth set of

Interrogatories is largely repetitious, as it seeks information previously requested in plaintiff's First, Second and Third sets of Interrogatories. reviewed the These findings notwithstanding, the Court, having both in support of and in opposition to

papers

Pursuant to FRCP Rule 33(a), "[u]nless otherwise stipulated or o r d e r e d by the court, a party may serve on any other party no more t h a n 25 written interrogatories, including all discrete subparts."

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plaintiff's motions to compel (Dockets ## 42, 51, 55), as well as plaintiff's First, Second, Third and Fourth sets of

Interrogatories/discovery demands (Dockets ## 14, 16, 19, 41) and defendants' responses thereto (Dockets ## 17, 21, 22, 23, 24, 30, 34), hereby Orders that: 1. Defendant Hartman is ordered to respond to Interrogatory Number 2 in plaintiff's Fourth set of Interrogatories; 2. Defendants are ordered to produce the information

previously ordered to be produced in this Court's August 4, 2009 Decision and Order (Docket # 50) within ten (10) days of entry of this Order; and 3. In all other respects plaintiff's motions to compel

defendants to respond to his Fourth set of Interrogatories are denied.

Plaintiff's Motion for Sanctions: Currently pending before the Court is plaintiff's motion for sanctions (Docket # 51). With the instant motion (Docket # 51),

plaintiff seeks unspecified sanctions against defendants for their failure to respond to his Fourth set of Interrogatories. Under FRCP Rule 37(b)(2), a court may impose sanctions for failure "to obey an order to provide or permit discovery..." Accordingly, "[a] district court has wide discretion in imposing sanctions, including severe sanctions, under Rule 37(b)(2)." Daval

Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991); 4