Moore v. Peters et al
Filing
57
ORDER granting in part and denying in part 52 Motion for Reconsideration re 49 Order on Motion to Compel. Plaintiff may draft up to ten written deposition questions addressed to each of the five witnesses who refused to testify at his discipl inary hearing. Consistent with this Order, defense counsel shall mail the questions to the last known addresses of the five former inmates, along with a copy of this Order, instructions, and a self addressed envelope for return. Signed by Hon. Jonathan W. Feldman on 09/21/2017. A copy of this Decision and Order has been mailed to pro se plaintiff Kenneth E. Moore, 230-03 138th Avenue, Laurelton, NY 11413. (JKT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KENNETH E. MOORE,
Plaintiff,
DECISION
&
ORDER
13-CV-6271
V.
CORRECTIONAL OFFICER J. PETERS
et al.,
Defendants.
Procedural Background
Currently pending before the Court is a motion by pro se
plaintiff Kenneth Moore
(hereinafter "plaintiff"), to reconsider
this Court's previous Decision and Order dated September 14, 2016
(Docket# 49).
See Docket# 52.
Defense counsel filed a response
in opposition to the instant motion on November 16, 2016
(Docket
# 54), and plaintiff filed a reply on November 28, 2016 (Docket##
55, 56).
The motion was deemed submitted on paper.
Discussion
Familiarity with the Court's prior decision is assumed.
At
issue in the instant motion is plaintiff's request for names and
addresses of
forty-nine
individuals who were
incarcerated with
plaintiff at the Willard Drug Treatment Campus on March 12, 2011.
According
to
plaintiff,
"community meeting"
these
held on
individuals
that
were
present
date, . and would be
at
able
a
to
describe any contact
or lack of contact that occurred between
plaintiff and defendant Peters.
In my previous Decision and Order
(Docket # 49), I determined that "plaintiff already knows the names
of numerous 'witnesses' to the alleged incident of March 12, 2011,"
because plaintiff identified five of the participants by name to
testify at his Tier II hearing.
The Court wrote that, aside from
those five known individuals, plaintiff had failed to demonstrate
that
the
other
forty-four
relevant evidence.
participants
would
have
additional
Id. at 6-7.
In seeking reconsideration of that decision, plaintiff points
out
that
none of
the
five
known
individuals
testified at
his
disciplinary hearing because they told prison officials that they
did not see any incident or event between plaintiff and defendant
Peters.
According to plaintiff, however, it is the lack of contact
between him and Peters that day that he is trying to prove.
His
lawsuit alleges that Peters retaliated against him by filing false
disciplinary
charges
alleging
that
there
was
a
confrontation
between Peters and plaintiff during the community meeting held on
March 12; 2011.
Anyone in attendance at the community meeting
would therefore have relevant evidence because they would confirm
that there was no confrontation between plaintiff and Peters during
the meeting.
Plaintiff, who is no longer incarcerated, seeks the
names and current addresses of all
those in attendance at the
community meeting on that specific date.
2
Counsel for the defendant
argues that plaintiff can obtain this information by "a simple
search
of
the
New
York
State
Department
of
Corrections
and
Community Supervision Inmate Population Search," described as an
"on-line public internet search engine."
See Docket# 54 at
1
4.
Discussion
After
further
consideration,
the
Court
will
modify
its
The Court is still not convinced
previous decision as follows.
the names and current addresses of all forty-nine individuals in
attendance at the March 12,
defendants
at
this
2011 meeting need be disclosed by
By
time.
the
same
token,
the
theory
of
plaintiff's retaliation cause of action is based on the fact that
there never was a "confrontation" between plaintiff and defendant
Peters
at
the
meeting
fabricated by Peters.
and
that
the
misbehavior
report
was
The fact that the five witnesses declined
to testify at plaintiff's disciplinary hearing may have been the
result of confusion as to why they were being asked to testify,
rather than an indication that they did not have relevant evidence
for this retaliation claim.
Defense counsel does not seem to object to disclosing prior
inmate names and addresses,
is
available
engine.
But
by
simply
current
informing the Court such information
accessing
addresses
available on the website.
a
for
Moreover,
3
publicly available
released
inmates
search
are
not
the Willard Drug Treatment
Program is a short-term "shock" program, so it is likely that many
of the individuals in attendance at the meeting on March 12, 2011
are no longer in state custody.
Plaintiff has informed the Court
that he "would be willing to write out my deposition questions and
send them to the defense attorney who would then forward them to
any or all of the 49 witnesses with instructions to answer the
questions and send them back to the AAG who would then send them
to me."
See Docket# 52 at 3.
In light of the above, plaintiff may draft up to ten written
deposition questions addressed to each of the five witnesses who
See Docket# 52
refused to testify at his disciplinary hearing.
at pages
Plaintiff shall mail the questions to defense
6-10.
counsel who shall copy and mail them (along with a copy of this
Decision and Order) to the last known addresses of the five former
inmates.
If
the
inmate
is
currently
in
state
custody,
the
questions should be forwarded by defense counsel to the appropriate
In forwarding the
facility for personal delivery to the inmate.
questions to the five individuals, defense counsel shall include
a
self-addressed
responses
are
envelope
and
written
to be mailed back
instructions
to defense
counsel.
that
any
Defense
counsel shall forward any received responses to plaintiff by mail
and may keep a copy for the defendants' records.
4
Conclusion
Based
on
reconsideration
the
foregoing,
(Docket # 52)
plaintiff's
motion
for
is denied in part and granted in
part.
A status conference is scheduled in this case for November
29,
2017 at 10:00 a.m.
before the undersigned.
Plaintiff may
appear by telephone upon written request to the Court.
SO ORDERED.
Un ted States Magistrate Judge
Dated:
September 21, 2017
Rochester, New York
5
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