Richard v. Fischer et al

Filing 59

DECISION & ORDER Richard's motion to compel and for sanctions 46 is granted in part and denied in part. (See contents of Decision & Order for directives.) Signed by Hon. Marian W. Payson on 7/20/2017. Copy of this Decision & Order sent by First Class Mail to plaintiff John Willis Richard on 7/20/2017 at his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JOHN WILLIS RICHARD,
DECISION & ORDER
Plaintiff,
11-CV-6013W
v.
JENNIFER DIGNEAN and THOMAS TANEA,
Defendants.
_______________________________________

John W. Richard (“Richard”) filed this action pro se against Jennifer Dignean
(“Dignean”) and Thomas Tanea (“Tanea”) (collectively, “defendants”) pursuant to 42 U.S.C.
§ 1983 asserting a First Amendment retaliation claim against Tanea and equal protection claims
against both defendants. (Docket # 1). Richard alleges that defendants, who were Senior
Correctional Counselors with the New York State Department of Corrections and Community
Supervision (“DOCCS”), discriminated against him on the basis of his race and religion by
creating an unwritten policy to deny him certain employment opportunities and retaliated against
him for filing grievances about defendants’ conduct. (Id.; see also Docket # 22). Currently
pending before this Court is Richard’s motion to compel responses to discovery demands and for
sanctions. (Docket # 46). For the reasons discussed below, Richard’s motion to compel and for
sanctions is granted in part and denied in part.

PROCEDURAL BACKGROUND
Richard filed his complaint on December 3, 2010, against fourteen defendants,
which defendants moved to dismiss on June 28, 2011.1 (Docket ## 1, 14). Many of Richard’s
claims were dismissed by the Honorable Elizabeth A. Wolford, the presiding district judge, in a
decision dated August 7, 2014. (Docket # 22). This Court held a Rule 16 scheduling conference
with Richard and counsel for defendant, J. Richard Benitez, Esq., on October 15, 2014, and
issued a scheduling order that, among other things, required defendants to serve initial
disclosures by December 1, 2014. (Docket # 26). Despite the order, defendants served them on
March 17, 2015. (Docket # 31).
In early 2015, Richard moved for reconsideration of Judge Wolford’s decision
dismissing some of his claims, which was denied on September 23, 2015. (Docket ## 28, 32).
In her decision denying reconsideration, Judge Wolford directed the parties to confer and contact
this Court if any extensions of the scheduling order deadlines were needed. The parties did not
contact this Court to request any extensions.
Judge Wolford held a status conference on May 12, 2016. (Docket # 37). At the
conference, Richard requested additional discovery before scheduling the case for trial, and the
case was re-referred to me to supervise such discovery. (Docket # 38). I held a scheduling
conference with Richard and Benitez on June 15, 2016, after which I issued an amended
scheduling order setting new deadlines for further discovery. (Docket ## 40, 41).
On June 22, 2016, Richard served formal interrogatories (which were filed on
June 27, 2016 (Docket # 42)) and on July 20, 2016, he served requests for production of

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In his July 21, 2011, reply to defendants’ motion to dismiss, Richard apparently requested that defendants
produce the DOCCS Employee Manual, program availability sheets, program change sheets, and the names of
program committee staff and disciplinary hearing witnesses. (Docket # 18 at 21-27). No formal response was ever
served by defendants, nor did Richard pursue the requests at that time.

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documents (which were filed on September 8, 2016 (Docket # 45)). Richard also alleges that he
served requests for admissions on July 10, 2016. (Docket # 46 at ¶ 27). Although Local Rule
5.2(f) requires the parties to file discovery requests and responses in cases with incarcerated pro
se litigants, Richard’s requests for admissions do not appear on the docket. See W.D.N.Y. L.R.
Civ. P. 5.2(f).
Richard represents that Benitez asked the Court for an additional thirty days to
respond to the interrogatories, which was granted. (Id. at ¶¶ 11-12). In fact, the record suggests
that Benitez sent a letter to Richard, not this Court, on July 25, 2016, requesting a thirty-day
extension to respond to the interrogatories; the docket does not contain any court order granting
an extension. (See id., Ex. A). During his August 26, 2016, deposition, Richard asked Benitez
about the status of the interrogatories, and Benitez responded that he could not locate the
defendants and would request another extension. (Docket # 49 at 16). Although Richard
consented to an extension, Benitez did not timely request one.2
On September 20, 2016, Richard sent a letter to Benitez regarding the outstanding
discovery requests. (Docket # 46 at Ex. B). Benitez apparently did not respond, prompting
Richard to file this motion to compel, which is dated September 26, 2016, but was filed on
October 11, 2016. (Docket # 46).
Benitez filed a seven-paragraph affidavit in opposition to this motion on
November 14, 2016. (Docket # 49). In relevant part, Benitez concedes that defendants did not
respond to Richard’s requests and acknowledges that he failed to timely request an extension of

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Benitez did eventually request an extension and represented that Richard consented to it. (Docket # 48).
On the basis of the representation, this Court granted the request. (Id.). Richard thereafter objected and attached his
deposition transcript showing that he had consented weeks earlier at his deposition, but Benitez had never timely
requested the extension. (Docket # 54). This Court rescinded its extension order. (Id.).

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the scheduling order deadlines. (Id. at ¶ 7). He explained that he “inadvertently overlooked
submitting the request sooner based on various trial engagements [and] litigation.” (Id.).
Defendant Dignean, on January 24, 2017, and defendant Tanea, on February 21,
2017, responded to Richard’s outstanding interrogatories.3 (Docket ## 57, 58).
In addition to seeking to compel the responses to outstanding requests, Richard
also seeks sanctions. (Docket # 46). Specifically, Richard requests that the interrogatories and
document demands be deemed admitted (id. at ¶¶ 72-75), the requested admissions be deemed
admitted (id. at ¶¶ 76-78), and unspecified facts and issues be deemed resolved in his favor (id.
at ¶¶ 79-80). Additionally, Richard seeks an order precluding defendants from offering evidence
of his disciplinary record and finding them in contempt (id. at ¶¶ 84-91), and entry of a default
judgment (id. at ¶ 92).

DISCUSSION
I.

Motion to Compel
Richard seeks to compel responses to his discovery requests. (Docket # 46). At

this stage, defendants have provided some documents responsive to Richard’s request in
connection with their opposition to this motion (Docket # 49 at Exs. B, C), although many still
appear outstanding. In addition, defendants apparently have not provided a formal written
response to the requests, which should identify the documents that respond to each request.
Accordingly, defendants are directed to provide written responses and produce all responsive
documents by no later than August 25, 2017.

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Dignean’s response is dated November 22, 2016, although the date of service is unclear. (Docket # 57).
Tanea’s response is undated, and its date of service is likewise unclear. (Docket # 58).

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With respect to Richard’s requests for interrogatories, defendants have now
responded, albeit well after the deadline. (Docket ## 57, 58).
As for the requests to admit, the record lacks sufficient information to permit this
Court to determine whether any such requests are outstanding because the record does not
demonstrate that defendants were ever served with them. The parties are directed to confer on
this issue. To the extent that defendants were not served, Richard may serve the requests on
defendants by no later than August 25, 2017, a copy of which must be filed with this Court, and
defendants are directed to respond thereto within thirty (30) days. To the extent defendants
have been served, they are directed to respond to the requests by no later than August 25, 2017.

II.

Request for Sanctions
Richard seeks various sanctions arising from defendants’ untimely and

incomplete compliance with their discovery obligations. (Docket # 46). The record shows that
defendants have been unjustifiably and inexplicably lax in their efforts to comply with their
discovery obligations, including failing to timely provide written responses to Richard’s
outstanding discovery requests and failing to request an extension of their time to respond.
Defendants also apparently ignored Richard’s attempts to obtain responses to the outstanding
requests without the necessity of court intervention. Even after receiving plaintiff’s lengthy
motion, rather than providing the outstanding responses, defendants’ counsel submitted a less
than two-page affidavit, which failed to address several of the issues raised by Richard.
Defendants’ conduct has caused Richard and this Court to expend effort that
should not have been necessary to obtain defendants’ compliance with their discovery
obligations. Not only have they tendered no justifiable excuse for their non-compliance, but they

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have offered no reason why they could not have simply sought appropriate extensions from the
Court. Moreover, the record suggests that many document requests are still outstanding.
I turn first to Richard’s request that his requests for admissions be deemed
admitted. (Id. at ¶¶ 76-78). Rule 36(a)(3) of the Federal Rules of Civil Procedure provides:
[a] matter is admitted unless, within 30 days after being served, the
party to whom the request is directed serves on the requesting
party a written answer or objection addressed to the matter and
signed by the party or its attorney.
See Fed. R. Civ. P. 36(a)(3). As explained above, however, the record before the Court does not
establish that the requests to admit have been served on defendants or, if so, when they were
served. Accordingly, Richard’s request is denied without prejudice at this time.
Richard also requests that the interrogatories and requests for production of
documents “be deemed admitted.” (Id. at ¶¶ 72-75, 79-82). Unlike requests for admissions,
however, an untimely response to these types of discovery requests does not automatically entitle
the proponent to a determination that the requests be “deemed admitted.” Indeed, in this case, it
would be very difficult for the Court to fashion admissions that logically or directly flow from
defendants’ failure to have timely provided the interrogatory responses or particular document
requests.
Of course, Rule 37 of the Federal Rules of Civil Procedure authorizes the
imposition of a variety of different sanctions on a party who fails to comply with his or her
discovery obligations. For example, “[a] failure to respond or object to a discovery request in a
timely manner waives any objection which may have been available.” Cohalan v. Genie Indus.,
276 F.R.D. 161, 163 (S.D.N.Y. 2011) (quoting UBS Int’l Inc. v. Itete Brasil Instalacoes
Telefonicas Ltd., 2010 WL 743371, *3 (S.D.N.Y. 2010) (citing Smith v. Conway Org., Inc., 154
F.R.D. 73, 76 (S.D.N.Y. 1994)). Here, defendants failed to provide timely responses to the
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document and interrogatory requests. Nor have they raised in their motion opposition any
objections or concerns about any particular documents sought. Accordingly, defendants’
objections to the requests are waived. See Alston v. Bellerose, 2016 WL 554770, *6-7 (D. Conn.
2016) (defendants’ general objections to incarcerated pro se plaintiff’s requests for production of
documents were waived by their failure to timely respond to requests and to timely oppose
plaintiff’s motion to compel); Oliphant v. Villano, 2010 WL 4909238, *3 n.2 (D. Conn. 2010)
(defendants’ objections to incarcerated plaintiff’s discovery requests were waived where
defendants failed to timely respond to requests and provided no explanation for their delay);
Arriaga v. City of New York, 2007 WL 582813, *3 (S.D.N.Y. 2007) (holding that defendants’
objections to discovery requests were waived “as a result of defendants’ failure to respond to
[them] in a timely manner[, but] [a]s to documents or other information that defendants believe
give rise to genuine security concerns, defendants are to make a specific, individualized showing
by affidavit why production would give rise to such concerns”).
Richard also seeks the serious sanctions of an order of preclusion, an order
deeming certain facts established in his favor, judgment in his favor, and an order finding
defendants in contempt of court. (Id. at ¶¶ 82-95). Under Rule 37 of the Federal Rules of Civil
Procedure, courts have broad discretion to sanction a party for failing to produce or destroying
relevant and discoverable evidence. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(2d Cir. 1999). In evaluating the appropriateness of sanctions, including those requested by
Richard, a court should consider several factors including:
1. the willfulness of the non-compliant party or the reason for
noncompliance;
2. the efficacy of lesser sanctions;
3. the duration of the period of noncompliance[;] and
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4. whether the non-compliant party had been warned of the
consequences of ... noncompliance.
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302-03 (2d Cir. 2009) (quoting
Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)).
As the Second Circuit has cautioned, “[d]ismissal of a lawsuit, or its analogue,
striking an answer, is appropriate if ‘there is a showing of willfulness, bad faith, or fault on the
part of the sanctioned party;’ however, because it is a ‘drastic remedy ... it should be imposed
only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.’”
Occhino v. Citigroup Inc., 2005 WL 2076588, *11 (E.D.N.Y. 2005) (quoting West v. Goodyear
Tire & Rubber Co., 167 F.3d at 789-90). Similarly, “preclusion of evidence is a harsh remedy,
[and] it should be imposed only in rare situations.” Ritchie Risk-Linked Strategies Trading
(Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 156-57 (S.D.N.Y. 2012) (internal citations
and quotations omitted). As noted above, defendants’ efforts to comply with their discovery
obligations have been remarkably lax. Nevertheless, on the record before the Court, I do not find
that the drastic sanctions requested by Richard are warranted. Defendants’ failures have resulted
from their counsel’s lack of appropriate diligence, not from any bad faith on his or their parts.
Defendants are cautioned, however, that any further failure to comply with their discovery
obligations may result in the imposition of serious sanctions against defendants or
defendants’ counsel, including the striking of their answer.4
It is well-settled that pro se litigants who are not attorneys are not entitled to
attorney’s fees. Kay v. Ehrler, 499 U.S. 432, 435 & n.5 (1991) (collecting cases). Pro se
litigants may be entitled, however, to reimbursement of documented and reasonable litigation
4

Richard also maintains that defendants’ conduct violates a ruling issued by the district court. (Id. at
¶ 87). Richard is apparently referring to Judge Wolford’s order re-referring the matter to this Court for supervision
of discovery. (Docket # 38). Although Judge Wolford clearly assumed that discovery would resume and directed
that it be supervised by this Court, defendants’ conduct does not directly contravene her order.

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costs. See, e.g., Jermosen v. Smith, 733 F. Supp. 13, 14 (W.D.N.Y. 1990) (awarding
reimbursement of photocopying expenses where request was supported by a detailed affidavit);
Lozano v. Peace, 2005 WL 1629644, *2-3 (E.D.N.Y. 2005) (declining to grant request for costs
where pro se plaintiff failed to demonstrate any expenditures).
Although Richard has not specifically requested reimbursement of litigation costs,
this Court retains the discretion to impose such a sanction. Although I decline, based upon the
above-cited authority, to award attorney’s fees, defendants should reimburse Richard for the
reasonable costs, if any, he has incurred as a result of defendants’ delayed discovery responses
and the need to file a motion to obtain them. Thus, Richard may submit to this Court by no later
than August 25, 2017, a sworn affidavit detailing those costs, accompanied by any
documentation demonstrating his expenditures.
As a final matter, I note that Richard appears to challenge the veracity of several
statements made by defendants in their pleadings and other filings. (See, e.g., Docket # 46 at
¶¶ 64-71). Such challenges are premature and must await resolution by the trier of fact on a
dispositive motion or at trial. Accordingly, Richard’s request for a hearing or other sanctions
relating to those challenged statements is denied at this time.

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CONCLUSION
For the foregoing reasons, Richard’s motion to compel and for sanctions (Docket
# 46) is GRANTED in PART and DENIED in PART.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 20, 2017

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