Shapard v. Attea et al

Filing 85

DECISION AND ORDER granting 79 Motion for Discovery. Plaintiff's motion to reopen discovery [#79] is granted. Counsel for the parties are directed to confer regarding a schedule for the completion of expert discovery, and Plaintiffs counsel is directed, within ten (10) days of the date of this Decision and Order, to submit a proposed scheduling order. Signed by Hon. Charles J. Siragusa on 3/2/15. (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 three corrections officers and a corrections lieutenant who
were employed at Wende Correctional Facility (“Wende”). Now before the Court is
Plaintiff’s motion to re-open discovery (Docket No. [#79]). The application is granted.
BACKGROUND
Plaintiff maintains that Corrections Officer John Attea (“Attea”), Corrections
Officer Edwin Mendez (“Mendez”), Corrections Officer 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.
Proceeding pro se while incarcerated, Plaintiff commenced the action, suing Attea,
Mendez, Kyle, Herdzik and several other defendants. On January 7, 2010, the Court
issued a Scheduling Order [#32] directing that all discovery be completed by July 30,
2010. After the completion of discovery, Defendants filed dispositive motions and the

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Court dismissed several persons from the action, leaving only Attea, Mendez, Kyle and
Herdzik as defendants. (See, Decision and Order [#58]).1 At that point, the matter was
ready for trial. On January 9, 2014, the Court granted the pro se 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, with such discovery to include depositions of Defendants, whom
Plaintiff had not previously deposed. With some exceptions not relevant here, the
Court allowed such discovery. See, Docket No. [#75] (denying Plaintiff’s motion to
compel).
Following the completion of such discovery, Plaintiff filed the subject motion
[#79] to further re-open discovery with regard to expert discovery. Specifically, Plaintiff
requests the opportunity to retain two experts – a medical expert and an expert on the
use of force in the prison setting. Plaintiff indicates that he needs a medical expert to
opine whether his injuries are consistent with the type and amount of force (3 baton
strikes) that Defendants maintain they used. Plaintiff further indicates that a use-offorce expert is necessary to opine about the “force [that is] typically used by correctional
officers in certain circumstances,” since Defendants have offered divergent statements
on that point.2 Plaintiff contends that it did not become apparent that he needed to
retain such experts until after Defendants’ depositions were completed. Plaintiff further

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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.
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Defendants state that “the use of force expert’s testimony [is needed] to assist the jury in better
understanding what the generally accepted practices are relating to use of force in a correctional setting.”
Def. Reply Memo [#84] at p. 7.

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contends that the Court should grant his application, because trial has not been
scheduled, and because Defendants will not be prejudiced by the additional discovery.
Defendants oppose the application. Defendants first contend that Plaintiff has
not shown good cause for the request and has not been diligent in pursing discovery.
Defendants further contend that they will be prejudiced if the Court grants the
application, since “the trial would be delayed for at least a year,” after factoring in the
time needed for each side to retain their experts, prepare reports and conduct
depositions. Defendants also state that the additional discovery will be expensive.
Defendants further contend that the requested discovery should be denied since it is
not likely to lead to relevant evidence. Defendants’ argument on this last point is
twofold: First, they contend that the experts are not needed, since jurors are capable of
drawing their own conclusions about Plaintiff’s alleged injuries and the reasonableness
of the force that was used; and second, they contend that a use-of-force expert may
attempt to usurp the Court’s role in instructing jurors as to the appropriate legal
standard.
DISCUSSION
The parties agree as to the applicable standard to be applied to Plaintiff’s
application:
The decision to re-open discovery is within a district court's discretion. As
a general rule, discovery should only be re-opened for good cause,
depending on the diligence of the moving party. Courts also consider the
following factors: 1) the imminence of trial; 2) whether the request is
opposed; 3) whether the moving party foresaw the need for additional
discovery, in light of the discovery deadline set by the court; 4) prejudice
to the non-moving party; and 5) whether further discovery is likely to lead
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to relevant evidence.
Krawec v. Kiewit Constructors Inc., No. 11 Civ. 0123(LAP), 2013 WL 1104414 at *8
(S.D.N.Y. Mar. 1, 2013) (citations omitted).
The Court finds that an application of these factors warrants re-opening
discovery. First and most importantly, the Court believes that since coming into the
case to represent the inmate Plaintiff, Plaintiff’s counsel have diligently pursued
discovery. Moreover, as to the additional enumerated factors, the Court finds as
follows: 1) trial is not imminent; 2) the request is opposed; 3) Plaintiff’s counsel did not
foresee the need to conduct expert discovery until after Defendants’ depositions were
completed; 4) Defendants will not be prejudiced, most notably because the Court
expects that the additional discovery will be completed expeditiously; and 5) further
discovery is likely to lead to relevant evidence, as described by Plaintiff.
CONCLUSION
Plaintiff’s motion to reopen discovery [#79] is granted. Counsel for the parties
are directed to confer regarding a schedule for the completion of expert discovery, and
Plaintiff’s counsel is directed, within ten (10) days of the date of this Decision and
Order, to submit a proposed scheduling order.
SO ORDERED.
Dated:

Rochester, New York
March 2, 2015
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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