Moore v. Peters et al
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,
CORRECTIONAL OFFICER J. PETERS
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
See Docket# 52.
Defense counsel filed a response
in opposition to the instant motion on November 16, 2016
# 54), and plaintiff filed a reply on November 28, 2016 (Docket##
The motion was deemed submitted on paper.
Familiarity with the Court's prior decision is assumed.
issue in the instant motion is plaintiff's request for names and
individuals who were
plaintiff at the Willard Drug Treatment Campus on March 12, 2011.
date, . and would be
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
Id. at 6-7.
In seeking reconsideration of that decision, plaintiff points
disciplinary hearing because they told prison officials that they
did not see any incident or event between plaintiff and defendant
According to plaintiff, however, it is the lack of contact
between him and Peters that day that he is trying to prove.
lawsuit alleges that Peters retaliated against him by filing false
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
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.
Counsel for the defendant
argues that plaintiff can obtain this information by "a simple
Community Supervision Inmate Population Search," described as an
"on-line public internet search engine."
See Docket# 54 at
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,
2011 meeting need be disclosed by
plaintiff's retaliation cause of action is based on the fact that
there never was a "confrontation" between plaintiff and defendant
fabricated by Peters.
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,
informing the Court such information
available on the website.
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
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.
Plaintiff shall mail the questions to defense
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
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
to be mailed back
counsel shall forward any received responses to plaintiff by mail
and may keep a copy for the defendants' records.
(Docket # 52)
is denied in part and granted in
A status conference is scheduled in this case for November
2017 at 10:00 a.m.
before the undersigned.
appear by telephone upon written request to the Court.
Un ted States Magistrate Judge
September 21, 2017
Rochester, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?