Shapard v. Attea et al
Filing
75
DECISION AND ORDER denying 69 Motion to Compel. Signed by Hon. Charles J. Siragusa on 9/5/14. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER SHAPARD,
Plaintiff,
DECISION AND ORDER
08-CV-6146 CJS
-vJOHN ATTEA, et al.,
Defendants.
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983 in which Plaintiff, a prison inmate
in the custody of the New York State Department of Corrections and Community
Service (“DOCCS”), is suing four individuals who were employed at Wende Correctional
Facility (“Wende”). Now before the Court is Plaintiff’s motion to compel discovery
(Docket No. [#69]), seeking production of all inmate grievances that were filed against
Defendants “relating to uses of force on inmates or to truth and veracity.”1 The
application is denied.
BACKGROUND
Plaintiff maintains that Corrections Officers John Attea (“Attea”), Edwin Mendez
(“Mendez”) and Robert Kyle (“Kyle”), and Corrections Lieutenant Al Herdzik (“Herdzik”),
violated his federal constitutional rights by assaulting him and/or filing false and
retaliatory misbehavior reports against him. Plaintiff commenced the action pro se,
suing Attea, Mendez, Kyle, Herdzik and several other defendants. On January 7, 2010,
1
Pl. Motion to Compel [#69] at p. 1.
1
the Court issued a Scheduling Order [#32] directing that all discovery be completed by
July 30, 2010. After the completion of discovery, the defendants filed dispositive
motions and the Court dismissed several defendants from the action, leaving only
Attea, Mendez, Kyle and Herdzik as defendants. (See, Decision and Order [#58]).2 At
that point, the matter was ready for trial. On January 9, 2014, the Court granted
Plaintiff’s request to adjourn the Pretrial Conference to allow him to retain counsel.
(Docket No. [#62]).
Subsequently, counsel for Plaintiff appeared in the action, and requested leave
to re-open discovery. On March 24, 2014, counsel for the parties appeared before the
undersigned for a pretrial conference.3 (See, Transcript of appearance, Docket No.
[#67]). With regard to re-opening discovery, Plaintiff sought the following items of
discovery: 1) to depose the four defendants; 2) training materials provided to
corrections officers concerning use of force against inmates; 3) any video recordings of
the alleged assault on May 16, 2005; 4) all statements by the Defendants concerning
the matter; and 5) “any disciplinary actions, grievances, or civil or administrative actions
relating to the use of force on inmates” or truthfulness. (Docket No. [#67] at p. 7).
The subject motion pertains only to the last of those items, and in particular to
inmate grievances4 filed against Defendants that pertain to either a use of force by the
Defendants or their veracity.
More specifically, Plaintiffs seek grievances that were
2
The Court had also previously dismissed the action as to four other defendants. See, Decision
and Order [#28]. The Court also later granted a motion to re-institute a retaliation claim against Herdzik.
3
The Court permitted Plaintiff’s counsel to appear by telephone.
4
In this regard, the Court is referring to grievances that were filed in connection with New York’s
Inmate Grievance Program. See, generally, 7 NYCRR § 701.5.
2
filed between June 7, 2003 and June 7, 2007, which would include grievances filed up
to two years after the alleged assault by Defendants. At the conference on March 24,
2014, Defendants’ counsel argued that producing the grievances would be unduly
burdensome.5 In that regard, counsel indicated that inmate grievances are cataloged
by the name of the inmate filing the grievance, and not by the names of the DOCCS
employees who are named in the grievances. Consequently, Defendants’ counsel
indicated, it would require searching the grievance files of every inmate at Wende in
order to locate grievances against these particular defendants. Plaintiff does not
dispute that the inmate grievances are cataloged in that manner.
Plaintiff nevertheless maintains that he is entitled to any pertinent inmate
grievances against Defendants, and proposes several ways to go about locating them.
First, Plaintiff contends that DOCCS staff can search the inmate grievance records and
locate any pertinent grievances. Second, Plaintiff maintains that DOCCS could grant
Plaintiff’s counsel access to the records, and allow counsel to search through them.
Third, Plaintiff indicates that Defendants’ counsel could interview his clients and ask
them if they have any recollection of inmate grievances being filed against them that
involve allegations of use of force or dishonesty.6 Plaintiff further maintains that the
Court already directed Defendants to produce the grievances, during the March 24,
2014 conference, and that Defendants have violated the Court’s order by failing to do
so.
5
Defendants’ counsel did not object to producing materials in the individual defendants’ personnel
files relating to prior uses of force or dishonesty.
6
This last option seems moot since it is the Court’s understanding that in the meantime Plaintiff’s
counsel deposed Defendants.
3
On July 8, 2014, Plaintiff filed the subject motion to compel pursuant to FRCP
37, purportedly to compel Defendants’ counsel “to comply with the Court’s March 24,
2014 Order directing Defendants to produce documents concerning Defendants’ truth
and veracity, prior criminal convictions or other uses of force.” (Docket No. [#70] at p.
2). Plaintiff further complains that while Defendants’ counsel has indicated that
searching inmate files would be unduly burdensome, he has not provided an “estimate
[of] how long the review might take.” Id.
In response to the motion to compel, Defendants’ counsel filed an affirmation
indicating that DOCCS has advised him that it keeps inmate grievances “for 4 (four)
years plus the current year [and that] therefore Wende Correctional Facility only has
grievances from 2010 to 2014.”7 Defendants therefore maintain that they could not
comply with Plaintiff’s demand in any event. Defendants further maintain that they
should not be required to produce grievances currently in DOCCS’ possession, since
they post-date the incident at issue by many years and are therefore not relevant.
Plaintiff filed a reply in which he maintains, inter alia, that he is entitled to
grievances filed between 2010 and 2014 since they might be admissible and could lead
to admissible evidence. For example, Plaintiff contends that the grievances might show
that Defendants engaged in a pattern of harming inmates.
DISCUSSION
At the outset, a point of contention between the parties is whether the Court
directed, at the conference on March 24, 2014, that Defendants produce inmate
7
Levine Declaration [#72] at ¶ 5.
4
grievances. Plaintiff’s counsel maintains that the Court did, while Defendants’ counsel
maintains that the Court did not. Upon reviewing the transcript, the Court concludes
that it did not direct Defendants’ counsel to produce inmate grievances at that time.
The Court indicated, rather, that Plaintiff was entitled to discover information in the
Defendants’ own personnel files relating to past uses of force or dishonesty. Although
Plaintiff’s counsel referred to “grievances”8 during the conversation, there was no
substantive argument or discussion as to inmate grievances in particular, and the Court
did not intend to, nor did it, direct Defendants to produce inmate grievances.
In any event, even assuming that the Court had done so, it is clear that such a
direction would have been contrary to the clear trend within this Circuit, which is to deny
production of inmate grievances under these circumstances, on the ground that it would
be unduly burdensome due to the fact that they are cataloged by inmate and not by
DOCCS staff. See, Willey v. Kirkpatrick, No. 07–CV–6484CJS, 2011 WL 4368692 at *5
(W.D.N.Y. Sep. 19, 2011) (“As this Court has previously held, the burden of searching
all inmates' files for grievances against specific defendants is unduly burdensome.”);
see also, Dorsey v. New York, No. 10–CV–744F, 2011 WL 4529115 at *1 (W.D.N.Y.
Sep. 28, 2011) (“It has been repeatedly held by this court that because inmate
grievances and complaints filed against DOCS employees are filed according to the
inmates making the grievances or complaints, the search required to identify the DOCS
employees against whom such grievances or complaints are made would be unduly
burdensome and time-consuming, and that such burden would outweigh any benefits
8
See, Transcript [#67] at p. 19.
5
provided by the requested discovery.”).
As for Plaintiff’s alternative suggestion that his attorneys be allowed to sift
through all of the inmate grievances at Wende, that request is denied. Permitting an
inmate’s attorney or his or her staff to access those records would raise serious issues
of security and confidentiality, especially considering that many inmate grievances
pertain to confidential medical issues.
Apart from that, the only grievances that could be produced in any event were
filed beginning in 2010, which is five years after the alleged constitutional violations in
this action. Defendants maintain that they should not have to produce any grievances
that post-date the incident at issue since they would not be relevant.9 To the extent that
Defendants suggest that Rule of Evidence 404(b) only pertains to prior bad acts, or that
post-incident bad acts are per se irrelevant, the Court disagrees. See, e.g., 2
Weinstein’s Fed. Evid. § 404.20[2][a] (2014) (“It does not matter whether the proffered
act occurred before or after the . . . conduct at issue in the present suit, as long as
relevancy is shown.”). Defendants have not offered any further explanation as to why
they believe that post-incident grievances would be irrelevant in this action.10
Consequently, Defendants’ argument as to relevance lacks merit. Nevertheless, the
Court is denying the motion to compel on the grounds that the discovery being sought is
9
Levine Decl. ¶ 7.
10
See, Levine Decl. ¶ 7. Defendants merely cite cases in which other courts found on particular
facts that post-incident acts were not relevant, but do not explain why that would also be true in this action.
For example, Defendants cite Lionkingzulu v. Jayne, No. 12–CV–00845(A)(M), 2013 WL 6628234 at *2
(W.D.N.Y. Dec. 16, 2013), in which the court merely indicated that the plaintiff had “offer[ed] no
explanation” as to the relevance of the post-incident complaints, but did not indicate that all post-incident
complaints are necessarily irrelevant.
6
unduly burdensome, as discussed above.
CONCLUSION
Plaintiff’s motion to compel [#69] is denied.
SO ORDERED.
Dated:
September 5, 2014
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
7
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