Moore v. Peters et al
Filing
49
ORDER granting in part and denying in part 44 Motion to Compel. The Court extends discovery until November 18, 2016; dispositive motions must be filed no later than December 30, 2016. SO ORDERED. Signed by Hon. Jonathan W. Feldman on 09/14/2016. A copy of this Order has been sent to pro se plaintiff. (JKT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KENNETH MOORE,
DECISION & ORDER
13-CV-6271
Piaintiff,
v.
CO J. PETERS et al.,
D€fendants.
Preliminary Statement
Pro
se
"plaintiff")
42
u.s.c.
violations
plaintiff
Drug
§
alleging
1983'
during
his
period
and
Five
(Docket # 1)
Treatment
7.
Moore
correction
"defendant")
(hereinafter
of
and
Correctional
or
pursuant to
2013,
due
incarceration at
he
witnessed
asserts
process
Willard . Drug
Facility.
See
created a
false
corrections
Points Correctional Facility,
officers
and he reported the assault.
that
Peters
two
in
retaliation
(hereinafter
misbehavior
for
"C. 0.
report
causing plaintiff to be moved to isolation,
Id.
reporting,.
Peters
11
or
against Moore,
transferred to Five
and ultimately to have his parole
revoked and ten-months added to his term of
at 7-13.
"Moore"
Moore alleges that while at the Willard
Campus,
officer
retaliation
Points
assault another participant,
at
Moore
commenced this action on May 28,
Treatment ·Campus
Complaint
Kenneth
imprisonment.
Id.
After
the
filing
of
this
federal
action,
submitted motions for summary judgment.
Judge
Wolford
issued
an
Order
on
both
parties
See (Docket## 27, 32).
March
13,
2015,
denying
plaintiff's motion for summary judgment and granting defendants'
motion to dismiss plaintiff's third,
action,
Order
thereby terminating two defendants from the case.
(Docket
remaining
#
38) .
parties
Scheduling Order,
Plaintiff
2015,
fifth and sixth causes of
filed
Following
met
with
Judge
the
undersigned,
and began discovery.
the
Wolford's
See
established
the
a
(Docket ## 39, 41) .
instant motion to compel
on September 29,
seeking documents and information not provided by counsel
for defendants in the initial disclosures.
(Docket # 44) .
23,
Order,
See
2015,
Counsel for the de.fendants responded on October
objecting
to
many
of
providing additional materials.
Plaintiff
motion was
See.Motion to Compel
replied by
the
document
demands
and
See Declaration (Docket # 46) .
letter dated October
deemed submitted to
the
30,
Court at
2015,
that
and this
time.
See
Letter from Mr. Kenneth Moore (Docket # 47).
Discussion
Plaintiff objects to several of the defendants'
to
his
discovery
demands.
His
follows.
2
objections
are
responses
addressed
as
Discovery Demand 1:
failed
to
turn
addresses
of
mandatory
individuals
information,
Five
over
· Plaintiff states that defendants have
that
discovery,
are
likely to
have
names
and
discoverable
information from Willard regarding his transfer to
Points,
log
book
entries,
and
parole officers and counselors.
Defendants
including
respond
by
information
out
that
plaintiff with 112 pages of discovery,
they
Richard Benitez
have
at 1.
provided
including the requested
transcript from plaintiff's tier two hearing.
of Defense Counsel J.
specific
(Docket # 4 7)
See Letter
pointing
from
See Declaration
(Docket # 46)
at
l;
see
also Rule 26 Disclosures (Docket # 41) .
At
this
stage
of
the
discovery
process,
I
find
that
defendants have reasonably complied with their duties under Rule
26.
is
Given the sworn representations of defense counsel,
no
reason
incomplete,
to
and
believe
indeed
that
defendants'
defendants
there
submissions
supplemented
their
were
initial
discovery by including plaintiff's tier two hearing transcript.
See
Exhibit
Benitez
"A"
(Docket
to
#
Declaration of
46)
at
1-55.
Defense
For
that
Counsel
reason,
J.
R.ichard
plaintiff's
motion for mandatory discovery is denied.
Discovery
Demand
4-5:
Plaintiff
asked
for
the
name
and
contact information of a specific participant in the Willard DTC
Program.
Jose
See Letter
Vasquez,
and
(Docket # 47)
provided
Mr.
3
at 2.
Defendants identified
Vasqeuz's
DIN
number.
See
Declaration of Defense Counsel J. Richard Benitez
at 3.
(Docket # 46)
Defendants have thereby complied with plaintiff's request
in # 4.
Plaintiff additionally requests any information related
to an alleged assault that occurred between defendant Peters and
Inmate Vasquez on February 23,
at
The assault,
2.
defendant Peters'
that
"safety
confidential
according to plaintiff,
retaliation.
and
See Letter
2011.
security
inmate
the basis for
Defendants have responded
Id.
reasons
prohibit
See
records."
is
(Docket # 47)
the
Declaration
release
of
of
Defense
Counsel J. Richard Benitez (Docket# 46) at 3.
Though plaintiff
has
stated
that
the
alleged
assault
on
February 23, 2011 is important "because it goes to motivation on
Defendant Peters
information
plaintiff.
party
was
is
[sic] part," the Court does not agree that such
relevant
assault,
(30)
days
C.O.
Peters'
retaliation
against
The issue in this litigation is not whether a third
assaulted,
against plaintiff.
plaintiff
to
but
whether
defendant
Peters
retaliated
Insofar as there are any reports written by
regarding or related to Mr.
Vasquez and the alleged
these must be disclosed to the plaintiff within thirty
if they have not already been provided.
unrelated confidential
records
from
4
Inmate Vasquez's
Otherwise,
file
are
not sufficiently relevant to this lawsuit to require production,
and therefore plaintiff's motion is denied. 1
Discovery
seeks
the
working
Demand
name
at
of
9-10:
two
Willard
In
unknown
while
these
two
demands,
plaintiff
officers
who
corrections
plaintiff
was
in
treatment
were
there.
Defendants have responded that they are unable to identify the
individuals.
See
Declaration
Benitez (Docket # 46) at 5-6.
spirit
of
request,"
cooperation,
but
Il)ENTIFY."
he
then
Defense
Counsel
Richard
J.
According to Mr. Benitez,
facility
the
cryptically
The
Id.
of
is
answered
descriptive
"in the
researching
with
information
this
"UNABLE
TO
provided· by
plaintiff about the two officers that is unusually specific, and
the
Court
actually
has
has
concerns
made
grants plaintiff's
to
about
identify
what
these
efforts
the
"facility"
individuals.
discovery demand insofar as
The
Mr.
Court
Benitez
is
required to provide a Declaration setting forth precisely what
search
efforts
were
made
to
identify
the
two
corrections
officers given the specificity plaintiff offered in describing
them.
Such declaration shall be filed within thirty
(30)
days
of entry of this Order.
'Public Officers Law§ .96 prevents disclosing personal records or
information.
See MicKinney's Public Officers Law § 96(1).
This
state law of confidentiality is not binding in federal civil
rights actions, where plaintiff is able to make a threshold
showing of relevance and particularity.
See King v. Conde, 121
F.R.D. 180 (E.D.N.Y. 1988).
5
Discovery Demand 14-15:
·According to plaintiff,
defendant
Peters created a fake misbehavior report stating that plaintiff
became "defiant, disruptive, and agitated" at the beginning of a
See Attachment # 3 to Plaintiff's Motion to
community meeting:
Compel
(Docket # 44).
This misbehavior was used as grounds to
place plaintiff in isolation,
Points,
and
revoke
his
transfer him from Willard to Five
parole.
Plaintiff
states
confrontation ever occurred with defendant Peters,
the
names
of
the
forty-nine
defendant Peters'
report,
at
of
the
beginning
individuals
that
and desires
who,
according
it
is
the
"intended
to
would have witnessed the altercation
community
meeting
had
it
happened.
Defendants. have objected to producing this information,
that
no
to
harass,
is
vague
and
Declaration of Defense Counsel J. Richard Benitez
stating
overbroad."
(Docket # 46)
at 7-8.
Defendants'
objections
to making any
further
response
to
this discovery demand are sustained, and this request is denied.
Based
on
the
tier
two
hearing
transcript,
plaintiff
already
knows the names of numerous "witnesses" to the alleged incident
of March 12, 2011.
Indeed, plaintiff asked for at least five of
the
be
"witnesses"
to
produced
at
his
tier
two
disciplinary
hearing held on March 16, 2011 and all five of them stated that
they did not know enough about the incident to provide testimony
at the tier two hearing.
The Court finds that plaintiff has not
6
demonstrated that any of the forty-nine individuals who were in
the
community
meeting
room
on
March
12,
2011
have
evidence
relevant to his claim.
Conclusion
Plaintiff's motion
to
part and granted in part,
Order.
compel
(docket
#
44)
is
denied
in
consistent with the above Decision and
The Court will extend discovery until November 18, 2016.
Dispositive motions must
be
filed
no
later
than December
2016.
SO ORDERED.
~~G
CELDMAN
lYTED STATES MAGISTRATE JUDGE
Dated: September 14, 2016
Rochester, New York
7
30,
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