Venable v. Morabito et al

Filing 38

ORDER granting in part and denying in part 20 Motion for Discovery. Defense counsel shall file his affidavit and produce any relevant documents within thirty (30) days from entry of this Order. Signed by Hon. Jonathan W. Feldman on 9/19/2012. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RASON VENABLE,
Plaintiff,
DECISION AND ORDER
10-CV-6624

v.
K. MORABITO, and D. BROWN,
Defendant(s).

Preliminary Statement
This action stems from pro se plaintiff’s allegations that
while

confined

at

the

Groveland

Correctional

Facility

the

defendants violated his constitutional rights by, inter alia, using
excessive

force

against

him.

See

Complaint

(Docket

#

1).

Plaintiff alleges that the excessive force resulted in physical
injuries and chronic lower back pain.

Id.

Currently pending

before the Court is the plaintiff’s motion to compel discovery.
(Docket # 20).

Discussion
With

the

instant

motion,

plaintiff

seeks

to

compel

the

production of defendant Morabito’s personnel file to determine
whether Morabito has had previous allegations of excessive force
asserted against him.

(Docket # 20).

This Court has previously held that “[p]rior complaints made
against

the

defendants,

whether

substantiated

or

not,

are

discoverable

in

§

1983

civil

rights

actions

so

long

as

the

complaints are similar to the constitutional violations alleged in
the Complaint or are relevant to the defendant’s truth or veracity.
See

Simcoe

v.

Gray,

No.

10-CV-6531,

2012

WL

1044505,

at

*3

(W.D.N.Y. Mar. 28, 2012)(citing Chatman v. Felker, No. CIV S-032415 JAM KJM P, 2009 WL 173515, at *5-6 (E.D. Cal. Jan. 23, 2009);
Session v. Rodriguez, No. 3:03CV0943 (AWT), 2008 WL 2338123, at *2
(D. Conn. June 4, 2008); (Cox v. McClellan, 174 F.R.D. 32, 34
(W.D.N.Y. 1997)).

It is “consistent with past practice in this

Court” for defense counsel to be ordered to “(1) speak to his
clients

to

ascertain

recollection

of

a

whether

prior

defendants

complaint

or

have

any

grievance

personal

that

may

be

responsive, and (2) review the defendants’ personnel files to
determine whether any information contained therein is responsive.”
Edwards v. Skelly, No. 07–CV–6343, 2012 WL 1029492, at *1 (W.D.N.Y.
Mar. 26, 2012).
Here, in response to plaintiff’s motion, defense counsel avers
that he “had Officer Morabito’s file inspected to determine whether
there were any documents pertaining to allegations of other uses of
force or allegations pertaining to Officer Morabito’s truth or
veracity.”
¶ 4.

See Affidavit of Hillel Deutsch, Esq. (Docket # 21) at

The “search was conducted” and defense counsel “was informed

no such documents were found.”
not

indicate,

however,

Id. at ¶ 5.

whether

2

he

had

Defense counsel did

spoken

with

defendant

Morabito to ascertain whether he had any personal recollection of
a prior complaint or grievance that may be responsive.
Accordingly,

defense

counsel

must

speak

with

defendant

Morabito to determine whether he can recall any prior complaints or
grievances

that

are

similar

to

plaintiff in the instant action.

the

allegations

asserted

by

The Court directs that defense

counsel file an affidavit with the Court confirming that he has
spoken

with

conversation.

defendant
If

and

relevant

disclosing

the

information

results

and/or

of

documents

that
are

discovered but being withheld from disclosure, counsel shall submit
such documents to the Court for in camera review.

Defense counsel

shall file his affidavit and produce any relevant documents within
thirty (30) days from entry of this Order.

In all other respects,

plaintiff’s motion (Docket # 20) is denied.

Conclusion
Plaintiff’s motion to compel (Docket # 20) is granted in part
and denied in part.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 19, 2012
Rochester, New York

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