Perkins v. Napoli et al
Filing
108
ORDER denying 74 Motion pursuant to Rule 16; denying except for further disclosures as to defendants Comfort and Miller ordered herein 76 Motion for Sanctions; deemed withdrawn 86 Motion to Compel; denying 88 Motion to Compel; denying except for further disclosures as to defendants Comfort and Miller ordered herein 89 Motion for Sanctions; denying without prejudice to renew 92 Motion to Appoint Counsel. Signed by Hon. Jonathan W. Feldman on 9/28/2011. (RJO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL PERKINS,
Plaintiff(s),
DECISION AND ORDER
08-CV-6248
v.
D.F. NAPOLI, J. COLVIN, M. McGRAIN,
SHOPE, D. FORREST, R. DILDINE,
J. MILLER, S. COMFORT, D. ALLEN and
C. MILLER,
Defendant(s).
Preliminary Statement
In his Amended Complaint, plaintiff alleges, inter alia, that
while he was confined at the Southport Correctional Facility, the
defendants
lost
property,
filed
or
stole
“bogus”
several
books
misbehavior
repeatedly assaulted him.
that
were
reports
(Docket # 18).
his
against
personal
him
and
Plaintiff brings his
claims under 42 U.S.C. § 1983, for violations of his First, Fourth,
Fifth, Eighth and Fourteenth Amendment rights.
(Docket # 18).
Currently pending before the Court are plaintiff’s motions pursuant
to
Rule
60
(Docket
#
74),
to
compel
(Dockets
##
86,
88),
for
sanctions (Dockets ## 76, 89) and to appoint counsel (Docket # 92).
Discussion
I.
Plaintiff’s Motions to Compel: Plaintiff filed his first
motion to compel on March 3, 2011, therein seeking to compel further
responses to document demands.
(Docket # 86).
Plaintiff filed his
second motion to compel on March 14, 2011, requesting, inter alia,
that his second motion to compel “supercede all prior motions for
production of documents and motions to compel.”
(Docket # 88).
Accordingly, the Court hereby Orders that plaintiff’s first motion
to compel (Docket # 86) is deemed withdrawn.
In
his
second
motion
to
compel,
plaintiff
seeks
further
responses to his Second Request for Production of Documents (Docket
# 41).
(Docket # 88).
In a prior motion to compel filed on January
4, 2010 (Docket # 39), plaintiff asked the Court to compel the
defendants to produce the documents requested in his Second Request
for
Production
simultaneously
of
Documents
with
his
(Docket
motion.
By
#
41),
Decision
which
and
he
filed
Order
dated
September 29, 2010, the Court granted in part and denied in part
plaintiff’s motion to compel, and Ordered defendants to provide
certain further responses to plaintiff’s discovery demands.
See
Decision and Order dated September 29, 2010 (Docket # 66).
On
October
to
13,
2010,
defendants
timely
filed
further
responses
plaintiff’s discovery demands, as required by the Court in its
September 29th Order.
See Dockets ## 70, 71.
The Court has reviewed
the defendants’ supplemental responses (Dockets ## 70, 71) and finds
them to be sufficient.
Accordingly, the Court hereby Orders that
plaintiff’s motion to compel (Docket # 88) is denied.
II.
Plaintiff’s Motions for Sanctions:
A court, pursuant to
its inherent powers, has the discretion to sanction conduct that it
considers to be an abuse of the judicial process.
2
See Chambers v.
NASCO, Inc., 501 U.S. 32, 42-44 (1991); see also Murphy v. Bd. of
Educ. of Rochester City Sch. Dist., 196 F.R.D. 220, 224 (W.D.N.Y.
2000).
To impose sanctions, the court must find that the offending
conduct “was ‘without a colorable basis’ and undertaken in bad
faith, i.e. ‘motivated by improper purposes such as harassment or
delay.’”
Murphy, 196 F.R.D. at 225 (quoting Schlaifer Nance & Co.
v. Estate of Warhol, 194 F.3d 323, 326 (2d Cir. 1999)).
Plaintiff filed his first motion for sanctions on December 17,
2010, seeking sanctions against defendants pursuant to Rule 37 of
the Federal Rules of Civil Procedure (“FRCP”) for, inter alia, their
repeated
failure
demands,
for
to
produce
providing
responses
inadequate
to
plaintiff’s
responses
to
his
discovery
discovery
demands, and for defendants Comfort and Miller’s misrepresentations
in their responses to plaintiff’s Interrogatories.
(Docket # 76).
In response to the instant motion, defendants assert that they have
fully and sufficiently responded to all of plaintiff’s discovery
demands,
and
maintain
that
Carmen
and
Miller’s
responses
to
plaintiff’s Interrogatories were “adequate, substantially justified
and/or harmless.”
See Declaration of J. Richard Benitez, Esq.
(hereinafter “Benitez Decl.”) (Docket # 79).
With its September 29, 2010 Decision and Order, the Court
acknowledged defense counsel’s “lack of attention to deadlines” and
“failure to keep track of deadlines” with respect to responding to
plaintiff’s discovery demands and motions.
3
See Decision and Order
dated September 29, 2010 (Docket # 66) at pp. 4-5.
Ordered
defense
counsel
to
submit
the
defendants’
The Court
outstanding
discovery within fourteen days of the Court’s Order and warned that
failure to comply would result in defendants being fined $500.00.
Id. at p. 5.
Defendants timely complied with the Court’s Order and
filed their outstanding discovery responses on October 13, 2010,
which, as mentioned above (see p. 2. supra), the Court finds to be
sufficient.
See Dockets ## 70, 71.
Accordingly, the Court declines
to impose sanctions on defendants for failing to provide timely,
adequate discovery responses, as I find that defendants complied
with the Court’s September 29 th Order.
With respect to defendants Comfort and Miller, however, the
Court finds that these defendants did in fact provide incomplete
information in their Interrogatory responses.
When asked whether
defendant Scott Comfort had ever had a formal complaint brought
against
him
for
responded, “no.”
assault
and/or
abuse
of
authority,
Comfort
Similarly, when asked how many times complaints
have been filed against defendant Carmen Miller for failing to
perform her job functions, Miller responded, “none.”
A simple
search inquiry on the Court’s CM/ECF website discloses several prior
complaints and lawsuits (both open and closed) previously filed in
the Western District of New York against both defendants Comfort and
Miller.
and
Consequently, the Court does not find defendants Comfort
Miller’s
responses
to
plaintiff’s
4
Interrogatories
regarding
prior
complaints
“adequate,
substantially
harmless,” as defense counsel suggests.
justified
and/or
See Benitez Decl. at ¶ 3.
Accordingly, the Court hereby Orders that defense counsel must (1)
speak to defendants Comfort and Miller to ascertain whether they
have any personal recollection of a prior complaint or lawsuit that
may be responsive, (2) review Comfort and Miller’s personnel files
to
determine
whether
any
information
contained
therein
is
responsive, and (3) conduct a CM/ECF search to determine whether
either
or
complaints.
both
defendants
The
Court
have
been
directs
that
defendants
defense
in
any
counsel
similar
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.
but
being
withheld
from
If relevant documents are discovered
disclosure,
counsel
documents to the Court for in camera review.
shall
submit
such
Defendants shall
produce the documents set forth in this Order within thirty (30)
days from entry of this Order.
Assuming timely compliance with this
Order, no further sanctions will be ordered at this juncture.
Plaintiff filed his second motion for sanctions on March 14,
2011, therein seeking sanctions against defendants for allegedly
producing duplicative and irrelevant discovery documents.
# 89).
(Docket
In his motion papers, plaintiff acknowledges that defendants
produced nearly 600 documents as part of their initial disclosures,
but argues, inter alia, that several of the documents were untimely
5
submitted,
repetitive
and
frivolous.
Id.
In
response
to
plaintiff’s motion, defendants assert that “in good faith” they
“provided to him over 500 pages of documents relating to his claim
and potential claims.”
(Docket # 99) at ¶ 17.
See Declaration of J. Richard Benitez, Esq.
The Court, having reviewed the papers in
support of (Dockets ## 89, 101) and in opposition to (Docket # 99)
plaintiff’s second motion for sanctions (Docket # 89), does not find
that defendants produced over 500 pages of initial disclosures in
bad faith or with an improper purpose.
Accordingly, plaintiff’s
motion for sanctions (Docket # 89) is denied.
III.
Plaintiff’s Motion Pursuant to Rule 60:
In this motion,
plaintiff seeks relief from a judgment or order pursuant to FRCP
Rule 60.
(Docket # 74).
Specifically, plaintiff requests that the
Court amend its Scheduling Order and extend the time to complete
discovery.
Plaintiff
asserts
that
defendants
have
failed
to
sufficiently respond to his discovery requests, which has prompted
plaintiff to file several motions to compel which are currently
pending before the Court.
Id.
Plaintiff argues that in light of
defendants’ actions, he has good cause to request that the discovery
deadline
be
extended.
Id.
Plaintiff
seeks
a
twelve
month
extension, which would extend the discovery deadline to March 31,
2012.
Id.
Pursuant to the Court’s October 14, 2009 Scheduling Order, the
deadline to complete discovery expired on March 31, 2010.
6
(Docket
# 32).
By Decision and Order dated September 29, 2010, the Court
addressed the parties’ remaining discovery issues, therein Ordering
defendants to produce further responses to certain discovery demands
within fourteen days of entry of the Order.
dated September 29, 2010 (Docket # 66).
See Decision and Order
On October 13, 2010, the
defendants timely and sufficiently complied with the Court’s Order.
See Dockets ## 70, 71.
Under FRCP Rule 6(b)(1), the court may extend time for good
cause with or without a motion.
Fed. R. Civ. P. 6 (b)(1)(A).
Here,
the discovery deadlines have long expired and dispositive motions
have been filed (see Dockets ## 95, 97) and are currently pending
before Judge Siragusa.1
demonstrated
“good
The Court does not find that plaintiff has
cause”
to
extend
the
discovery
deadline.
Accordingly, the Court hereby Orders that plaintiff’s motion to
further
denied.
extend
discovery
pursuant
to
Rule
60
(Docket
#
74)
is
However, defendants must nevertheless timely comply with
the discovery obligations set forth in this Decision and Order.
IV. Plaintiff’s Motion to Appoint Counsel:
With the instant
motion to appoint counsel (Docket # 92), plaintiff claims that the
appointment
“imprisonment
of
is
counsel
greatly
is
necessary
limiting
1
his
because,
ability
inter
to
alia,
litigate,”
The Court points out that plaintiff himself filed a motion for
summary judgment (Docket # 95). Ordinarily, this would indicate to
the Court that plaintiff deems discovery completed.
7
defendants have been “hampering” his ability “to conduct a proper
investigation and discovery” and he “is being denied legal materials
such as writing paper.”
Plaintiff’s application is denied without
prejudice to renew for the same reasons discussed in the Court’s
prior Decision and Order (Docket # 52).
pro
se
litigator
who
has
prosecuting his federal cases.
shown
he
Plaintiff is an experienced
is
perfectly
capable
of
Should Judge Siragusa determine that
the appointment of counsel would provide substantial assistance in
the development of plaintiff's arguments, or otherwise serve the
interests of justice in deciding the pending dispositive motions, he
may, of course, revisit the appointment of counsel issue.
Conclusion
Plaintiff’s motion pursuant to Rule 60 (Docket # 74) is denied.
Plaintiff’s motions for sanctions (Dockets ## 76, 89) are denied
except for the further disclosures as to defendants Comfort and
Miller ordered herein.
is deemed withdrawn.
denied.
Plaintiff’s motion to compel (Docket # 86)
Plaintiff’s motion to compel (Docket # 88) is
Plaintiff’s motion to appoint counsel (Docket # 92) is
denied without prejudice to renew.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 28, 2011
Rochester, New York
8
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