Freeman v. Rochester Psychiatric Center et al

Filing 188

DECISION & ORDER Freeman's motion to compel 161 is granted in part and denied in part. Specifically, that portion of Freeman's motion seeking to compel further responses to Interrogatory Nos. 1 and 8 is denied and the portion seeking to c ompel further responses to Interrogatory Nos. 2, 7, 9, 10, 20, 21, 22, and 23 is granted. Freeman's motion for an extension of time to file a motion to amend his complaint, to appoint counsel, and to schedule a settlement conference or mediation 171 is denied without prejudice. Signed by Hon. Marian W. Payson on 3/10/2017. Copy of this Decision & Order sent by First Class Mail to plaintiff Dwayne Freeman on 3/10/2017. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DWAYNE FREEMAN,
DECISION & ORDER
Plaintiff,
12-CV-6045T
v.
ROCHESTER PSYCHIATRIC CENTER,
Defendant.
_______________________________________

On January 25, 2012, Dwayne Freeman (“Freeman”) filed suit against Rochester
Psychiatric Center (“RPC”), his employer,1 under Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000e et seq. (Docket # 1). Freeman’s complaint alleges that he was subjected to race and
gender-based discrimination and retaliation beginning on June 8, 2010, approximately ten years
after he was hired by RPC. (Id.). Currently pending before this Court is Freeman’s motion to
compel. (Docket # 161). Also pending is his motion seeking an extension of time to file a
motion for leave to amend his complaint. (Docket # 171).

MOTION TO COMPEL
Freeman seeks to compel further responses to several of his interrogatories
propounded on March 31, 2015, which RPC responded to on June 1, 2015. (Docket ## 99, 116,
161). According to Freeman, he attempted to confer with counsel for RPC in mid-August 2015

1

Freeman also sued several individual defendants who were subsequently dismissed from the action.
(Docket ## 1, 29).

regarding his position that the responses were inadequate. (Docket ## 129; 161 at ¶ 2). RPC
supplemented its interrogatory responses on October 29, 2015. (Docket # 142-1).
Freeman objects to the supplemental responses, maintaining that several of the
responses continue to be inadequate. (Docket # 161). According to Freeman, RPC’s responses
to Interrogatory Nos. 1, 2, 7, 8, 9, 10, 20, 21, and 22 are inadequate because they refer to
approximately fifty pages of produced documents, rather than answering the questions posed,
and fail to identify the particular pages within the production from which the answers may be
determined. (Id.). Freeman also objects to RPC’s failure to answer Interrogatory No. 23, first
propounded in Docket # 129 on August 13, 2015. (Id. at ¶¶ 12-14). Finally, Freeman maintains
that several pages of the documents that were produced by RPC are illegible.2 (Docket # 161 at
¶ 19).
In opposition to the motion, RPC supplemented several of its interrogatory
answers to address Freeman’s concerns, but refused to supplement its responses to
Interrogatories 9 and 10. (Docket # 165). Additionally, RPC objected to and did not provide a
response to Interrogatory 23. (Id. at ¶ 12). Finally, RPC reproduced its document production in
an attempt to provide Freeman more legible copies of the documents. (Id. at ¶ 13). I have
reviewed the documents produced and their quality is somewhat improved, although some of the
documents still do not appear to be entirely legible. To the extent Freeman remains unable to
read any of the documents, he should identify those by Bates number to counsel for RPC; if
counsel cannot provide more legible copies, RPC must make arrangements for Freeman to
inspect the originals of those documents.

2

Freeman also requested additional time to file an amended complaint. (Docket # 161 at ¶ 20). The Court
previously addressed that request. (Docket # 162).

2

On August 2, 2016, Freeman filed a declaration stating that he intended to reply to
RPC’s opposition by August 19, 2016. (Docket # 168). No such reply was apparently filed.
As indicated above, Freeman objects to RPC’s responses to Interrogatories 1, 2, 7,
8, 9, 10, 20, 21, and 22 on the grounds that they simply refer him to a “mass of business
documents” without answering the interrogatories. (Docket # 161 at ¶¶ 3-4). Freeman maintains
that RPC should be required, at the very least, to identify the specific pages of the document
production within which the answers may be discerned. (Id. at ¶ 7).
RPC supplemented its responses to Interrogatories 1, 2, 7, 8, 20, 21, and 22 by
referencing in response to each interrogatory a few specific pages within its document
production. (Docket # 165 at ¶¶ 3-6, 9-11). A review of the referenced pages, which amount to
no more than six pages for each interrogatory, confirms that they contain information relating
generally to Interrogatories 1, 2, 7, and 8. Further, RPC has provided narrative answers to
Interrogatories 1 and 8. (Docket # 142-1 at 2, 3). RPC did not supplement its answers to
Interrogatories 2 and 7 to provide narrative responses, however, and the document production
pages referenced in the supplemental answers do not provide clear answers to these
interrogatories. See XChange Telecom Corp. v. Sprint Spectrum L.P., 2015 WL 773752, *5
(N.D.N.Y. 2015) (“Rule 33 production is suited to those discovery requests requiring a
compilation or analysis . . . [and] is well-suited to reply to inquiries of an intensely objective
nature; . . . Rule 33 is not appropriate where interrogatories pose questions of fact or mixed
questions of law and fact [which] require the exercise of particular knowledge and judgment on
the part of the responding party”) (internal quotations omitted). Accordingly, RPC is directed to
supplement its responses to Interrogatories 2 and 7.

3

With respect to Interrogatories 20, 21, and 22, the specific pages identified by
RPC in its supplemental response do not appear to contain the answer to Freeman’s questions.
Additionally, RPC has objected to Interrogatory 23 on the grounds that it is vague and
speculative. (Docket # 165 at ¶ 12). These interrogatories, although not the model of clarity,
read together and in the context of the other interrogatories, clearly seek information relating to
statements contained in the administrative report produced by RPC at Docket ## 40 and 49. For
instance, Interrogatories 21, 22, and 23 seek the identities and job titles of the “several
employees with supervisory responsibility” to whom Ms. Hancoski reported the incident, the
identity of those employees’ supervisors, and the dates and times that Ms. Hancoski made the
reports. (Docket ## 142-1 at 8; 161 at ¶ 13). RPC is directed to supplement its responses with
responsive information within its possession, custody and/or control.
Interrogatory 20 appears to seek information relating to the statement in the same
report that several witnesses reported that they were targeted by Freeman as a result of their
interview with the investigator about allegations that Freeman sexually harassed a co-worker.
(Docket ## 49 at 4; 141-2 at 7). Read in context with the previous interrogatory, Freeman is
asking whether RPC has information demonstrating that Freeman “targeted” the witnesses after
they spoke to RPC’s investigator. RPC is directed to supplement its response with responsive
information within its possession, custody and/or control.
RPC refused to supplement its responses to Interrogatories 9 and 10, maintaining
that it has fully responded to those questions. (Docket # 165 at ¶¶ 7-8). Those interrogatories
clearly relate to the last paragraph of the fourth page of RPC’s January 6, 2011, written response
to the New York State Division of Human Rights (“NYSDHR”) (see Docket # 142-1 at 3-4, 15).
Although RPC’s supplemental response to Interrogatory 9 provides the names of “Charge

4

Nurses,” it does not identify the particular charge nurse who reported to Cynthia Crowell Ms.
Hancoski’s allegation of sexual harassment by Freeman as set forth in RPC’s response to the
NYSDHR. RPC must supplement its response to do so.
Interrogatory 10 asked RPC to identify the “‘supervisor’ or Nurse Administrator
[who] ‘never reported it to her superiors.’” (Docket # 142-1 at 4). In response, RPC maintains
that the interrogatory mischaracterizes the facts, contending that “there was no incident of a
supervisor who failed to report[] plaintiff’s allegations” and referred Freeman to its NYSDHR
response for further information. (Id.). Freeman’s request plainly references the last paragraph
of the fourth page of RPC’s NYSDHR response. (See id. at 15). Specifically, RPC stated, “Ms.
Hancoski has reported this incident previously to coworkers and to her supervisor but the
supervisor never reported it to her superiors.” (Id.). Freeman has requested the identity of the
supervisor referenced in this statement. Accordingly, RPC is directed to supplement its answer
to Interrogatory 10 to provide responsive information within its possession, custody and/or
control.
Accordingly, Freeman’s motion to compel is granted in part and denied in part.
Specifically, that portion of Freeman’s motion to compel seeking further responses to
Interrogatories 1 and 8 is denied and the portion seeking further responses to Interrogatories 2, 7,
9, 10, 20, 21, 22, and 23 is granted.

MOTION TO AMEND
The original scheduling order in this matter provided a deadline of February 14,
2014, for filing any motions to join parties or to amend the pleadings. (Docket # 25). The
scheduling order was amended several times and the deadline for filing motions to amend the

5

pleadings was extended to December 1, 2014. (Docket ## 50, 78, 80). In December 2014,
Freeman filed a motion to amend the complaint, which was denied by the Court without
prejudice to renewal because Freeman had failed to attach a proposed amended complaint.
(Docket ## 86, 124). In its decision, the Court instructed Freeman that any motion to amend
must be filed on or before August 7, 2015. (Id.).
In August 2015, Freeman filed a motion for leave to file an amended complaint,
which the Court granted in part and denied in part. (Docket ## 130, 154). In its decision, the
Court instructed Freeman to file and serve an amended complaint in accordance with its decision
by no later than March 24, 2016. (Docket # 154 at 10). At Freeman’s request, this Court
extended the deadlines several times until June 30, 2016, but Freeman never filed his amended
complaint. (Docket ## 160, 162). Following the lapsed deadline of June 30, 2016, the Court
again issued amended scheduling deadlines, but did not extend the deadline for moving to
amend. (Docket ## 169, 180).
Freeman’s current motion seeks “leave from the current scheduling order . . . to
write the motion for leave to amend the complaint and . . . to write the proposed amended
complaint.” (Docket # 171 at ¶ 2). RPC opposes the motion on the grounds that Freeman has
not demonstrated good cause to amend his complaint at this stage of the litigation and that RPC
would be prejudiced because fact discovery has closed. (Docket # 174). Indeed, during the
pendency of this motion, defendant has filed a motion for summary judgment. (Docket # 182).
Freeman’s motion suggests that he seeks to redraft his original complaint and to
add a claim for supervisory liability. (Docket # 171 at ¶¶ 4, 6). At this stage of the litigation,
discovery is closed, dispositive motions have been filed, and the deadline for amending the
pleadings has long since passed. Under such circumstances, it is well-established that “the Rule

6

16(b) ‘good cause’ standard, rather than the more liberal standard of Rule 15(a), governs a
motion to amend filed after the deadline a district court has set for amending the pleadings.”
Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). As the Second Circuit
has observed, “despite the lenient standard of Rule 15(a), a district court does not abuse its
discretion in denying leave to amend the pleadings after the deadline set in the scheduling order
where the moving party has failed to establish good cause.” Id. at 340; see Phaneuf v. Tenneco,
Inc., 938 F. Supp. 112, 115 (N.D.N.Y. 1996) (“[i]n instances where . . . a considerable amount of
time has passed between filing the complaint and the motion to amend, courts have placed the
burden upon the movant to show some valid reason for his or her neglect and delay”) (internal
quotation marks omitted) (quoting Sanders v. Thrall Car Mfg. Co., 582 F. Supp. 945, 952
(S.D.N.Y. 1983), aff’d, 730 F.2d 910 (2d Cir. 1984)).
Freeman maintains that he has demonstrated good cause to amend his complaint
because his proposed amendments will state valid claims for relief and because he has evidence
to prove his claims. (Docket # 177 at ¶¶ 3-7). In the Rule 16 context, however, “‘[g]ood cause’
depends on the diligence of the moving party.” Parker v. Columbia Pictures Indus., 204 F.3d at
340; accord Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009); Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007) (court’s primary consideration in
determining whether a movant has established good cause is “whether the moving party can
demonstrate diligence”); Lowry v. Eastman Kodak Co., 14 F. App’x 27, 30 (2d Cir. 2001)
(same); Carnrite v. Granada Hosp. Grp., Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997) (“‘[g]ood
cause’ means that scheduling deadlines cannot be met despite a party’s diligence”). Thus,
Freeman must demonstrate the reasons why the new claims and allegations were not included in
his original complaint. If he did not know the facts underlying the new claims and allegations at

7

the time of the deadline for moving to amend, he needs to show when and how he learned those
facts and what efforts he made through discovery or otherwise to learn them before the deadline
expired. The critical consideration is whether Freeman acted with the requisite diligence to
justify granting his motion for leave to amend so long after the expiration of the deadline for
such motions.
Freeman’s papers do not make clear whether he also seeks to make the changes to
his complaint that were authorized by this Court’s previous decision, but were never made.
Considering the multiple extensions of the deadlines for such an amendment and the ample time
afforded by those extensions to file his amended complaint, I decline to set another date for the
filing of the previously-authorized amendments. Accordingly, Freeman’s application for an
extension of time to file a motion to amend the pleadings is denied.3
Freeman’s motion also suggests that he is requesting appointed counsel to
represent him. (Docket # 171 at ¶¶ 10-11). Freeman has previously requested and been denied
appointment of counsel. (See Docket ## 38, 39, 55, 76). Freeman’s pending motion does not
present any basis for the Court to alter its previous determinations regarding appointment of
counsel. Having reviewed the facts presented in light of the factors required by law, this Court
finds, pursuant to the standards promulgated by Hendricks v. Coughlin, 114 F.3d 390, 392 (2d
Cir. 1997) and Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), that the appointment of
counsel is not warranted at this time. It is Freeman’s responsibility to retain an attorney or to
continue to prosecute this lawsuit pro se. 28 U.S.C. § 1654.

3

Of course, Freeman is free to file any motion he believes in good faith is justified under the law. If he
were to file a motion to amend his complaint at this stage, his motion would need to demonstrate good cause –
meaning diligence – to seek amendment of the complaint at this stage after the expiration of the deadlines set by this
Court. It would also need to include as an exhibit an unsigned copy of his proposed amended complaint, in
accordance with Rule 15(a) of the Local Rules of Civil Procedure for the Western District of New York.

8

Finally, Freeman’s motion requests that this Court initiate informal settlement
discussions between the parties or refer this matter to mediation pursuant to the Western District
of New York’s Alternative Dispute Resolution Plan (“ADR Plan”). (Docket # 171 at ¶¶ 14-15).
To the extent Freeman wishes to engage in formal or informal settlement discussions, he should
confer with counsel for RPC to determine whether RPC is interested in engaging in such
discussions. If so, the parties are free to jointly request a settlement conference or referral to
mediation in this case.4
Finally, Freeman has expressed concern regarding the mediator’s fees. He may
seek a waiver of such fees in accordance with Section 5.3(E) of the ADR Plan. I have attached
to this decision the appropriate form to seek a waiver.

4

I note that a related case filed by Freeman against RPC, Freeman v. RPC, 16-CV-6668, has been
automatically referred to mediation pursuant to the ADR Plan. The parties’ mediation efforts in that case may well
involve mediation of the issues raised in this case.

9

CONCLUSION
For the reasons stated above, Freeman’s motion to compel (Docket # 161) is
GRANTED in PART and DENIED in PART. Specifically, that portion of Freeman’s motion
seeking to compel further responses to Interrogatory Nos. 1 and 8 is denied and the portion
seeking to compel further responses to Interrogatory Nos. 2, 7, 9, 10, 20, 21, 22, and 23 is
granted. Freeman’s motion for an extension of time to file a motion to amend his complaint, to
appoint counsel, and to schedule a settlement conference or mediation (Docket # 171) is
DENIED without prejudice as explained above.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
March 10, 2017

10

12/05 WDNY

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

(Name of Plaintiff(s) or Petitioner(s))

v.

MOTION FOR WAIVER OF ADR FEE
AND SUPPORTING AFFIRMATION
__________-CV-_________

(Name of Defendant(s) or Respondent(s))

Note: Litigants who have been granted in forma pauperis status need not complete this form.
, (print or type your name) am a ______________ (plaintiff or defendant) in the aboveI,
entitled case and hereby request that the Court waive my pro rata share of the ADR Neutral’s fee, or some portion thereof.
In support of my motion for a waiver, I state that because of my poverty I am unable to pay a pro rata share of the ADR Neutral’s fee and
that I believe I am entitled to redress.
I further declare that the responses which I have made in this affirmation below are true.
1.

No
Are you presently employed? Yes
My Employer’s Name and Address is:

My Gross Monthly Wages are: $
If you are not presently employed, state
Your Last Date of Employment:
Your Gross Monthly Wages at that time:
Is your spouse presently employed? Yes
No
My Spouse’s Employer’s Name and Address is:

My Spouse’s Gross Monthly Wages are $

2.

Have you received any money from any of the following sources within the past twelve months:
a. Business, profession or self-employment? Yes
No
If yes, state source and amount received per month $
b. Rent payments, interest or dividends? Yes
No
If yes, state source and amount received per month $
c. Pensions, annuities, disability, or life insurance payments? Yes
No
If yes, state source and amount received per month $
d. Gifts or inheritances? Yes
No
If yes, state source and amount received per month $
e. Child Support? Yes
No
If yes, state amount received each month $
f. Government Benefits (Social Security, SSI, Welfare, AFDC, Veterans, etc.)? Yes
No
If yes, state source and amount received per month $
g. Friends, Relatives or any other source? Yes
No
If yes, state source and amount received per month $
If you have not received any money from any of the above sources, please explain how you are currently paying your expenses:

3.

What is your total gross monthly income today: $

4.

How much cash do you have on hand? $

5.

How much money do you have in a checking account(s)? $

6.

How much money do you have in a savings account(s)? $

7.

Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household
No
furnishings and clothing)? Yes
If so, describe the property in detail and give an estimated value of the property:
If you own property, are you paying off a loan or mortgage on it? Yes
If yes, where are you obtaining the money to make such payments:

No

8.

State your total monthly household expenses:
Rent or mortgage $
Food $
Utilities $
All other expenses $
If your monthly expenses exceed the amount of income you listed in # 3 above, please explain how you are paying your expenses:

9.

List all of the people who are in your household and state the amount of money each one contributes to household expenses each
month (identify minor children only by their initials):

10.

List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you
contribute toward their support (identify minor children only by their initials and their relationship to you):

11.

Have you been adjudicated bankrupt within the past ten (10) years? Yes
If the answer is yes, please include the court and date of filing

No

I declare under penalty of perjury that the foregoing is true and correct.
Executed on
(Date)

(Movant’s Signature)