Myers v. Dolac et al
Filing
58
DECISION & ORDER Myers's motion for sanctions 25 is denied. Myers's motion to amend the complaint 33 is granted. Myers's motion to seal 34 is denied as moot. Defendants' motion to extend the discovery deadline 41 is grante d. Myers's motion to compel and for a protective order 42 is granted in part and denied in part. Defendants' motion to compel 45 is granted in part and denied in part. Myers's motion to strike 56 is denied. The Clerk of the Co urt is directed to file under seal Myers's unredacted proposed amended complaint, and file the redacted version as his second amended complaint and, because Myers is proceeding in this action in forma pauperis, the Clerk of the Court is d irected to cause the United States Marshal to serve copies of the Summons, unredacted second amended complaint, and this Order upon defendants Reardon and Anthony without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in the plaintiffs favor. Service of the amended complaint on the defendants who have already appeared in this action shall be made by the Clerk's mailing of a copy of the unredacted amended complaint to the defenda nts' attorney of record. Myers is directed to identify the "John Doe" defendants named in the complaint through discovery as soon as possible, and then apply to the Court for an order directing amendment of the caption and service on these defendants as soon as they have been identified. The defendants are directed to answer the amended complaint. (See contents of Decision & Order for further response deadlines). Signed by Hon. Marian W. Payson on 9/29/2011. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NATE MYERS,
DECISION & ORDER
Plaintiff,
09-CV-6642P
v.
MS. COLLEEN DOLAC, Nurse, ECHC, et al.,
Defendants.
Plaintiff Nathaniel Myers (“Myers”) has filed a pro se complaint pursuant to 42
U.S.C. § 1983, alleging that defendants have violated his constitutional rights by deliberately
ignoring his serious medical needs, disclosing private medical information and tampering with
his legal mail. (Docket ## 1, 6, 8). Currently pending before this Court are several motions by
the parties. First, Myers has filed an unopposed motion to amend his complaint. (Docket # 33).
Defendants also have moved to extend the discovery deadline, and both parties have filed
motions to compel. (Docket ## 41, 42, 45). I address each one in turn below.
I. Motion to Amend
On October 19, 2010, this Court entered a scheduling order setting March 1, 2011
as the deadline for filing motions to amend the pleadings or join parties. (Docket # 15). Myers
filed the instant motion to amend his complaint on February 28, 2011.1 (Docket # 33).
1
In addition, Myers filed a motion to seal the medical records and proposed amended complaint attached
to his motion to amend. (Docket # 34). Those documents have been sealed. Accordingly, Myers’s motion is now
moot.
Defendants do not oppose the motion. (Docket # 41 at ¶ 11). Indeed, defendants have indicated
their intent to conduct further discovery in the event that Myers is permitted to amend his
complaint. (Id.).
Myers’s complaint alleges that nurse Colleen Dolac at the Erie County Holding
Center (“ECHC”) unconstitutionally disclosed his serious medical condition2 and then denied
him treatment for that medical condition. (Docket ## 6, 8). In addition, Myers alleged that
defendants Timothy Howard and Robert Koch unconstitutionally tampered with his legal mail.
(Id.).
In the proposed amended complaint, Myers seeks to add defendants Michael
Reardon, ECHC’s grievance coordinator; John A. Anthony, ECHC’s Deputy Chief; and two John
Doe defendants – Nurse Dolac’s supervisor and a lieutenant at the Erie County Holding Center
who Myers alleges found him guilty on disciplinary charges and compelled him to resolve a
grievance in order to be released from “keeplock” status. (Docket # 33-1 at ¶¶ 5, 63). Myers
also asserts a new claim that defendants failed to protect him from another inmate who bit him
and thereby transmitted a communicable disease to him. (Id. at ¶¶ 46-52). In addition, Myers
asserts that defendants Reardon, Anthony and Koch denied him due process by preventing him
from filing grievances. (Id. at ¶¶ 61-65).
Under Rule 15(a) of the Federal Rules of Civil Procedure, once the time for
amending a pleading as of right has expired, a party may request leave of the court to amend,
which “[t]he court should freely give when justice so requires.” Fed. R. Civ. P. 15(a)(2). If the
2
Although the pending complaint describes his medical condition, Myers’s proposed amended complaint
and related medical records have been sealed at his request. In the interests of Myers’s privacy, this Court sees no
need to reveal Myers’s condition in connection with the pending motions.
2
underlying facts or circumstances relied upon by the party seeking leave to amend may be a
proper subject of relief, the party should be afforded the opportunity to test the claim on its
merits. See United States ex rel. Maritime Admin. v. Cont’l Ill. Nat’l Bank and Trust Co. of Chi.,
889 F.2d 1248, 1254 (2d Cir. 1989). “In the absence of any apparent or declared reason – such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc. – the leave sought should, as the
rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).
While the court retains discretion to grant or deny leave to amend under Rule
15(a), “[the] outright refusal to grant the leave without any justifying reason appearing for the
denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with
the spirit of the Federal Rules.” Id.; Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993) (per curiam); Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir. 1983).
If the amendment proposed by the moving party is futile, however, “it is not an
abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d at 131.
“An amendment to a pleading is futile if the proposed claim could not withstand a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus. Machines Corp., 310 F.3d
243, 258 (2d Cir. 2002). To avoid dismissal, the proposed amended claim must contain
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
3
When a party seeks to amend a complaint to add more defendants, a court must
also consider Rule 20(a) of the Federal Rules of Civil Procedure. Rule 20(a) permits the
inclusion of additional defendants if “any right to relief is asserted against them jointly, severally,
or . . . with respect to . . . the same transaction, occurrence or series of transactions or
occurrences.” Fed. R. Civ. P. 20(a)(2)(A). Courts have interpreted the requirements of Rule
20(a) liberally so as to promote judicial economy and to allow related claims to be tried within a
single proceeding. See, e.g., Barr Rubber Prods. Co. v. Sun Rubber Co., 425 F.2d 1114, 1127
(2d Cir.) (Rule 20 “specifically vests in the district court the discretionary power to make such
orders as may be required to prevent delay or prejudice”), cert. denied, 400 U.S. 878 (1970);
Liegey v. Ellen Figg, Inc., 2003 WL 21361724, *3 (S.D.N.Y. 2003) (“requirements of Rule 20(a)
should be interpreted liberally”); Kovian v. Fulton Cnty. Nat’l Bank and Trust Co., 1990 WL
36809, *9 (N.D.N.Y. 1990) (“there is no rigid rule as to what constitutes the same series of
transactions or occurrences”); City of New York v. Joseph L. Balkan, Inc., 656 F. Supp. 536, 549
(E.D.N.Y. 1987) (requirements of Rule 20 are to be “liberally interpreted”) (citations omitted).
Defendants do not oppose Myers’s motion to amend. Considering counsel’s
represented desire to conduct further discovery if the Court permits amendment, defendants have
apparently made a strategic decision to pursue some discovery before seeking dismissal or
summary judgment. (See Docket # 41). Upon review, I find that Myers’s proposed amendments
are sufficiently related to the current action to justify inclusion. In addition, I find that his claims
are not obviously futile.3
3
Myers’s new claim that defendants failed to protect him from another inmate who bit him is sparsely pled,
and this decision should not be read to imply any view whether such claim would survive a dispositive motion
following discovery. Failure to protect claims under Section 1983 require a showing that “prison officials acted with
4
Accordingly, considering that the initial complaint satisfied the criteria of 28
U.S.C. §§ 1915(e) and 1915A, the lack of opposition to Myers’s motion to amend, and in view of
the presumption that leave to amend be “freely given,” Fed. R. Civ. P. 15(a), I find that the
underlying facts and circumstances relied upon by Myers are a proper subject of relief, and he
therefore should be afforded the opportunity to test such claims on the merits. See United States
ex rel. Maritime Admin. v. Cont’l Ill. Nat’l Bank and Trust Co. of Chi., 889 F.2d at 1254. For
these reasons, Myers’s motion to amend his complaint is granted.
II. Discovery Motions
A. Motion for Sanctions
Also pending is a motion by Myers for sanctions against defendants for failing to
seal medical records they filed with this Court in response to his discovery request.4 (Docket
# 25). Defendants have affirmed that they were not aware prior to filing that Myers wished to
seal his records, although Myers has pointed out that his discovery request reminded defendants
that “reasonable precautions should be taken to seal from disclosure any and all medical
information/documents.” (See Docket ## 17 at ¶ 13; 30 at ¶ 6). This Court has now sealed those
records at Myers’s request. (Docket # 26). I find no justification to impose sanctions, and
Myers’s motion is accordingly denied.
deliberate indifference to a ‘substantial risk of serious harm’ to the inmate.” Shell v. Brun, 585 F. Supp. 2d 465, 469
(W .D.N.Y. 2008) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Myers has not alleged that defendants
were aware that he was at risk. In light of defendants’ lack of opposition to the motion to amend and because of the
possibility that Myers may uncover evidence in discovery supporting his claim, however, the claim may proceed at
this stage.
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Local Rule 5.2 requires that discovery in pro se actions be filed with the Court.
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B. Motion to Extend Discovery
The deadline for completing discovery was June 1, 2011. (Docket # 15). On May
18, 2011, defendants moved for a ninety-day extension to that deadline, citing the need to
conduct additional discovery because of Myers’s proposed amended complaint. (Docket # 41).
Myers opposes the extension on the basis that defendants have not acted diligently.5 (Docket
# 46). Defendants, however, have deposed Myers and served interrogatories and requests for
production. (Docket # 41 at ¶¶ 10, 12). Defendants also seek permission to redepose Myers in
the event he is permitted to file and serve his proposed amended complaint. (Id. at ¶ 15).
Rule 16(b) of the Federal Rules of Civil Procedure provides that “[a] schedule
may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
Myers’s objection to defendants’ motion notwithstanding, defendants have acted with sufficient
diligence to demonstrate good cause for an extension of the discovery deadline. Accordingly,
defendants’ motion for an extension of time is granted. An amended scheduling order will issue
separately. In addition, defendants’ motion for leave to redepose Myers is granted; however, the
subject matter of that deposition shall be limited to the new claims and new defendants.
C. Myers’s Motion to Compel
I first address the issues raised in Myers’s motion that are now moot. First, Myers
contends that defendants did not make initial disclosures as required under Rule 26 of the Federal
Rules of Civil Procedure. (Docket # 42 at ¶ 9). The docket reveals, however, that defendants
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Myers has also moved to strike defendants’ reply affidavit and memorandum of law on the grounds that
they were not filed by the same attorney who filed the initial motion. (Docket # 56). All counsel who have filed
documents in this action have appropriately filed notices of appearance with this Court. Further, in its motion
scheduling order, this Court permitted defendants the opportunity to reply. (Docket # 47). Accordingly, Myers’s
motion to strike is denied.
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filed their disclosures with the Court on January 10, 2011, and defendants have certified that they
served Myers with a second copy of those disclosures on June 24, 2011. (Docket ## 29; 53 at
¶ 15). In addition, Myers seeks a copy of his deposition transcript (Docket # 43 at ¶ 17), and
defendants have responded that a copy was sent to him on May 25, 2011. Thus, these requests
may be denied as moot.
Further, Myers contends that defendants have omitted some medical records and
grievances from their production. (Docket # 43 at ¶ 11). Defendants, however, affirm that they
have produced all documents in their custody, possession and control. (Docket # 53). Thus, this
Court cannot compel production of that which defendants do not possess. Should Myers
continue to believe that certain records are missing, he is directed to confer with counsel by
identifying the records he believes were omitted. He must do so in writing by no later than
October 24, 2011. Defendants are directed to respond by no later than November 4, 2011. If
the issue is not resolved, the parties may request a telephone conference with this Court.
Finally, Myers challenges the adequacy of defendants’ responses to his requests
for production. (Docket # 43 at ¶ 11(A)). Specifically, defendants objected to all of Myers’s
requests as vague, overbroad and unduly burdensome, but provided substantive responses to
some. (See Docket # 22). Upon review of defendants’ responses, I find that the following are
inadequate.
First, defendants objected to Myers’s Requests Nos. 6 and 8 which seek copies of
any logbooks or notes regarding his incoming and outgoing mail during the period June 4
through June 14, 2010, and the identities of any ECHC employees who had access to his mail
during that period. (Docket # 22 at 5-6). Because Myers has alleged that his legal mail was
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improperly opened and tampered with during that time period, I find that the request seeks
relevant information. Further, the time period is discrete and reasonable. Accordingly,
defendants must supplement their response and provide copies of any logbooks that record mail
sent to or from Myers and any documents that identify any ECHC employees who had access to
or handled Myers’s mail during that period. If no responsive documents exist or have been
destroyed, defendants shall so state and explain the circumstances of the documents’ destruction.
Second, Request No. 9 seeks information regarding where Myers was housed
between 2008 and 2010 and the identity of any inmates with whom he had “physical or verbal
contact” between October 10 and October 20, 2009. (Id.). Reading this request in conjunction
with his claims, the request, while plainly overbroad, may represent an attempt to identify the
inmate who allegedly bit Myers. Accordingly, defendants shall be required to identify the
inmates with whom Myers was housed in the same cell block between October 10 and October
20, 2009. Defendants shall supplement their responses to Requests Nos. 6, 8 and 9 by no later
than November 4, 2011.
The remainder of Myers’s requests – specifically, Requests Nos. 2, 2A, 3, 5, 7, 10
and 11 – are vague, overbroad and do not appear to seek relevant, discoverable information. (See
Docket # 22). For example, Requests Nos. 2 and 10 seek the identities of “all medical
providers/employees, who s[aw], examined, tested, or had contact with” Myers during 2008
through 2010, and “all supervisory officials, agents, employees or actors, who pertain to
plaintiff’s grievances, medical care, and mail issues.” (Docket # 22 at ¶¶ 2, 10). Certainly, some
of the information Myers seeks through these overbroad requests is likely contained in the
medical and grievance records already provided. Accordingly, Myers’s motion to compel further
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responses to those requests is denied, although he is free to serve more narrowly-tailored
requests. Further, his motion for sanctions is denied.
D. Defendants’ Motion to Compel
On May 10, 2011, defendants served interrogatories and requests for production.
(Docket ## 39, 40). Because the discovery deadline was then set for June 1, 2011, these
discovery requests did not afford Myers thirty days to respond, as required by Rules 33 and 34 of
the Federal Rules of Civil Procedure. Fed. R. Civ. P. 33, 34. On May 18, 2011, defendants filed
the motion to extend the discovery deadline addressed above. (Docket # 41). On May 24, 2011,
Myers objected to all of defendants’ discovery requests on the grounds that they were untimely
served, vague, overbroad, unduly burdensome and intended to harass and annoy. (Docket ## 43;
45, Ex. A). Myers further moved for a protective order to prohibit defendants from conducting
any further discovery on the grounds that their discovery requests were not timely. (Docket
# 42). Defendants then filed the instant motion to compel on May 31, 2011. (Docket # 45).
Defendants assert that “[i]n light of the date upon which defendants received plaintiff’s discovery
responses in this matter, together with plaintiff’s status as an incarcerated inmate, a timely good
faith effort to resolve this issue prior to the return date of this motion was impracticable.” (Id. at
¶ 17).
Although Myers is correct that defendants were untimely in serving their
discovery requests, this Court has granted defendants’ request for an extension to the discovery
period. In addition, this Court has reviewed defendants’ discovery requests and has determined
that most seek relevant, discoverable information and are appropriately limited in scope, with the
exception of Interrogatories 8, 10-14 and 18-20 and Document Request 5, which are overbroad or
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irrelevant; for example, certain of them seek information related to Myers’s claimed disability
and lost wages, including tax returns. (See Docket # 45, Ex. A). A review of Myers’s complaint
reveals that Myers is not claiming a disability or lost wages; thus, such requests appear irrelevant.
Myers shall supplement his responses by no later than November 4, 2011. Further, Myers’s
motion for a protective order is denied.
CONCLUSION
For the reasons discussed above, Myers’s motion for sanctions (Docket # 25) is
DENIED. Myers’s motion to amend the complaint (Docket # 33) is GRANTED. Myers’s
motion to seal (Docket # 34) is DENIED as MOOT. Defendants’ motion to extend the
discovery deadline (Docket # 41) is GRANTED. Myers’s motion to compel and for a protective
order (Docket # 42) is GRANTED in PART and DENIED in PART. Defendants’ motion to
compel (Docket # 45) is GRANTED in PART and DENIED in PART. Myers’s motion to
strike (Docket # 56) is DENIED.
This Court has undertaken to redact Myers’s proposed amended complaint to
remove any mention of his medical condition. Specifically, portions of paragraphs 19, 20, 23,
34-40, 42, 42A, and 47-50 have been redacted. The Clerk of the Court is directed to file under
seal Myers’s unredacted proposed amended complaint, and file the redacted version as his second
amended complaint and, because Myers is proceeding in this action in forma pauperis, the Clerk
of the Court is directed to cause the United States Marshal to serve copies of the Summons,
unredacted second amended complaint, and this Order upon defendants Reardon and Anthony
without plaintiff’s payment therefor, unpaid fees to be recoverable if this action terminates by
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monetary award in the plaintiff’s favor. Service of the amended complaint on the defendants
who have already appeared in this action shall be made by the Clerk’s mailing of a copy of the
unredacted amended complaint to the defendants’ attorney of record.
As for the John Doe defendants, “[p]laintiffs, especially pro se incarcerated
plaintiffs, should be given an opportunity to identify . . . unknown defendants through
discovery.” Brown v. Doe, 1999 WL 893070, *2 (S.D.N.Y. 1999) (deferring defendants’
motions to dismiss until they have provided the requisite discovery information and materials to
the pro se prisoner litigant). Myers is directed to identify the “John Doe” defendants named
in the complaint through discovery as soon as possible, and then apply to the Court for an
order directing amendment of the caption and service on these defendants as soon as they
have been identified.
Pursuant to 42 U.S.C. § 1997e(g)(2), the defendants are directed to answer the
amended complaint.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
September 29 , 2011
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