Reyes v. Wenderlich et al
DECISION & ORDER Reyes's motion to compel 55 is denied without prejudice. The parties are directed to confer in good faith in accordance with the directions herein. Reyes's motions to authorize written depositions 58 64 are denied. Further, the stay imposed in this Court's 6/3/2016 Order 56 is hereby vacated, and the scheduling deadlines are amended as follows: Dispositive motions due by 6/30/2017. Responses due by 7/31/2017. Replies due by 8/14/2017. Signed by Hon. Marian W. Payson on 3/30/2017. Copy of Decision & Order sent by First Class Mail to plaintiff Earl Reyes on 3/31/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
JOHN WENDERLICH, et al.,
Plaintiff Earl Reyes (“Reyes”), acting pro se, filed a complaint asserting claims
under 42 U.S.C. § 1983, against several defendants employed by the New York State
Department of Corrections and Community Supervision (“DOCCS”). (Docket # 1). Reyes’s
claims stem from his incarceration at Southport Correctional Facility between October 2013 and
March 2014. (Id.). Specifically, Reyes asserts a claim relating to the conditions of his
confinement at Southport during the relevant period, maintaining that the temperature in his
cellblock was impermissibly cold due to a non-functional heating system. (Id.). This claim is
asserted against defendants John Wenderlich (“Wenderlich”), Amy Farnham (“Farnham”), and
David Morgan (“Morgan”) (collectively, the “conditions of confinement defendants”). (Id. at
¶¶ 101-03). Reyes also asserts that defendants J. Clement (“Clement”), Ben Oakes (“Oakes”), J.
vonHagn (“vonHagn”), K. Weaver (“Weaver”), Z. Gould (“Gould”), and K. Walsh1 (“Walsh”)
(collectively, the “medical defendants”) were deliberately indifferent to his medical needs. (Id.
at ¶¶ 104-10).
It appears that K. Walsh has not been served with a copy of the summons and complaint. Reyes also
sued “Prison Medical Provider,” but this defendant was dismissed from this action. (Docket ## 1, 3).
Currently pending before this Court is Reyes’s motion for an order to compel
further responses to interrogatories, document requests, and requests for admission. (Docket
# 55). Also pending are Reyes’s motions to authorize depositions upon written questions of
various witnesses. (Docket ## 58, 64).
Motion to Compel
According to Reyes, on December 15, 2015, he served the conditions of
confinement defendants with a set of 25 interrogatories each (totalling 75 requests), 14 document
requests, and approximately 59 requests for admission. (Docket # 55 at 5, ¶ 2 and Appendix
(“App.”) A). The conditions of confinement defendants responded to the discovery demands on
March 15, 2016. (Docket ## 45; 48; 49; 55 at 5, ¶ 4 and App. B). On December 15, 2015,
Reyes also served the medical defendants with approximately 112 interrogatories, 7 documents
requests, and 64 requests for admission. (Docket # 55 at 5, ¶ 2 and App. A). The medical
defendants’ responses were also served on March 15, 2016. (Docket ## 46; 47; 50; 55 at 5, ¶ 4
and App. B). Reyes has raised issues with respect to the majority of the responses. (Docket
# 55). He also seeks $50 in expenses.2 (Id. at 3).
On March 16, 2016, Reyes wrote a one-page letter to counsel for defendants
expressing general concerns regarding the discovery responses and requesting a conference.
(Docket # 55 at App. C). Counsel for defendants responded on March 22, 2016, explaining the
basis for a variety of their objections and requesting that Reyes specify any particular requests
and responses in dispute. (Docket # 55 at App. D). Given the substantial number of discovery
responses, totalling approximately 190 pages, counsel for defendants requested that Reyes
Reyes also requested a stay of the proceedings until the pending motion is resolved. (Docket # 55 at 35).
Defendants did not oppose that request, and the Court granted it. (Docket # 56).
specify particular responses at issue prior to arranging a conference. (Id.). Rather than provide
the requested specificity, Reyes filed the pending motion on May 24, 2016. (Docket # 55 at 7).
Defendants have opposed the motion, maintaining that Reyes failed to adequately
confer prior to filing the pending motion. (Docket # 60 at ¶¶ 20-37). Additionally, defendants
maintain that their responses to the discovery requests were adequate and appropriate. (Id. at
Failure to Confer
Having reviewed the requests, responses, and the parties’ submissions, I find that
Reyes failed to comply with Rule 37(a)(1) of the Federal Rules of Civil Procedure because he
made no meaningful effort to resolve or narrow his discovery disputes with defendants prior to
filing the motions. See Fed. R. Civ. P. 37(a)(1) (“[t]he motion must include a certification that
the movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action”). Although Reyes
sent a letter to counsel for defendants raising general concerns about defendants’ responses and
objections, Reyes did not make any effort to identify the discovery disputes with specificity,
despite defendants’ request that he do so. Simply stated, Reyes’s single-page letter identifying
his vague and general concerns was insufficient to fulfill his obligation to confer with opposing
counsel in good faith prior to filing this motion. His delinquency is especially glaring because
Reyes apparently has very specific disputes with the majority of defendants’ numerous,
individual responses. Reyes’s failure to comply with Rule 37 warrants denial of his motion in its
entirety, including his requests for costs. See Brown v. Clayton, 2013 WL 1409884, *2
(D. Conn. 2013) (“[t]he failure to follow the meet and confer requirement is a sufficient basis for
denying the motion to compel”).
Despite the absence of any meaningful conferral, defendants have provided a
lengthy, detailed response to Reyes’s concerns, presumably in an attempt to narrow the issues
pending before the Court. (Docket # 60). At this time, Reyes’s conferral obligations require him
to respond to defendants’ submission and, considering defendants’ explanations, respond to
those explanations with particularity in order to identify any remaining disputes. Although the
conferral process has not yet been completed, given the extensive submissions relating to the
disputes, the Court will attempt, where possible, to narrow some of the issues in order to assist
the parties’ conferral process.
Responses to Document Demands (Docket ## 49, 50)
Reyes generally objects to defendants’ responses to document requests to the
extent they indicate that defendants would search for and produce responsive documents and
failed to indicate whether responsive materials were being withheld based upon objections.
(Docket # 55 at 8). Reyes also maintains that defendants improperly objected to certain phrases
or assumptions contained in several requests (Docket ## 49 at ¶¶ 1, 2, 3, and 4; 50 at ¶ 3).
Finally, Reyes maintains that defendants have failed to produce a document executed by
Farnham regarding heating system repairs that was provided to another prisoner. (Docket # 55 at
6, ¶¶ 11 and 8).
In response, defendants maintain that they have produced documents responsive
to Reyes’s demands, although some of the documents were produced prior to Reyes’s demands
as part of the initial mandatory disclosures. (Docket # 60 at ¶ 54 (citing Docket ## 23, 30, 53
and 54)). According to defendants, they have produced approximately 1,244 pages of
documents. (Id. at ¶¶ 40-41). Additionally, defendants explained their specific objections to
certain phrases and assumptions and maintained that those objections were appropriate; in any
event, they have not withheld any documents on the basis of such objections. (Docket # 60 at
¶¶ 51-53, 62). I find that defendants have properly responded to Reyes’s general disputes. To
the extent Reyes is not satisfied with defendants’ further explanations, he must specifically
identify why defendants’ explanations have not resolved his concerns.
It does not appear that defendants have responded to Reyes’s request for the
document authored by Farnham. Accordingly, defendants should search for and produce the
document, or confer further with Reyes to the extent they are unable to do so.
Grievances and Disciplinary Records
Several of Reyes’s requests seek grievances, complaints or lawsuits against the
defendants, along with related documents. (Docket ## 49 at ¶¶ 2, 3, 10; 50 at ¶ 3). Specifically,
Reyes sought all grievances and correspondence relating to the heating system on 12 Gallery A
Block during the relevant period. (Docket # 49 at ¶¶ 2-3). Reyes also requested grievances,
complaints, lawsuits or disciplinary action taken against each defendant. (Docket ## 49 at ¶ 10;
50 at ¶ 3). With respect to the medical defendants, Reyes specifically requested any grievances
or complaints relating to denial of medical treatment. (Docket # 50 at ¶ 3).
In response, defendants maintain that they have produced documents related to
the complaints regarding the heat on A Block 12 Gallery and that they would search for and
produce any additional documents relating to such complaints. (Docket # 49 at ¶¶ 2-3 (citing
Docket # 23 at Exhibit C)). Thus, it appears that defendants have searched for and produced
responsive documents. To the extent Reyes continues to dispute the adequacy of the response to
these requests, he must confer with defendants and identify any specific concerns.
With respect to grievances, complaints and lawsuits against them, defendants
objected to the requests on the grounds that it would be unduly burdensome to search for and
produce grievances because grievances are filed by inmate name, as opposed to subject matter.
(Docket ## 49 at ¶ 10; 50 at ¶ 3). Instead, with respect to the conditions of confinement
defendants, they agreed to produce records of any disciplinary events taken against the officers
relating to truth and veracity or to conditions of confinement. (Docket # 49 at ¶ 10). With
respect to the medical defendants, they agreed to search for and produce records reflecting any
lawsuits against the defendants relating to the denial of medical treatment and also referred
Reyes to the PACER system to identify lawsuits against those defendants. (Docket # 50 at ¶ 3).
Reyes’s request for all grievances against the defendants is overly broad and not
proportional to the needs and issues raised by this litigation. See Willey v. Kirkpatrick, 2011 WL
4368692, *5 (W.D.N.Y. 2011) (“[a]s this Court has previously held, the burden of searching all
inmates’ files for grievances against specific defendants is unduly burdensome”) (citing
Melendez v. Falls, 2010 WL 811337, *4 (W.D.N.Y.2010)). It appears that defendants have
produced all documents relating to grievances concerning the heating system during the relevant
time period. To the extent they have not, they are directed to do so. Defendants have
represented that the conditions of confinement defendants’ personnel files have been reviewed
and no complaints or disciplinary actions relating to either truth and veracity or conditions of
confinement existed within those files. Defendants are directed to review the medical
defendants’ personnel records and produce any complaints or disciplinary actions relating to
either truth and veracity or denial of medical treatment. Further, defendants are directed to
search for and produce any documents within their possession, custody, or control identifying
any lawsuits against any of the defendants relating to either conditions of confinement or denial
of medical care.
Reyes requests the contact information for several non-parties.3 (Docket # 49 at
¶ 12). Specifically, Reyes requests the contact information for other inmates who filed
grievances complaining about the heat on A Block, Gallery 12 during the relevant period. (Id.).
Defendants have refused to respond to this request on the grounds that it does not seek
documents and because the provision of such information would constitute a security risk. (Id.).
Although the Court agrees that providing contact information for other inmates
may present security concerns under certain circumstances, these individuals are likely to have
information that is relevant to the lawsuit. “Balancing the need to maximize the plaintiff’s
access to sources of probative evidence and the security concerns raised by the defendants, the
court will not require the defendants to supply the inmates’ addresses and telephone numbers.”
Demaille v. Nassau County, 2009 WL 791264, *1 (E.D.N.Y. 2009).
Discovery is now closed, and the purpose for which Reyes seeks the contact
information for these defendants is unclear. The parties should confer on this issue. To the
extent Reyes simply wishes to subpoena these witnesses for trial, that matter may be addressed
with the trial judge. To the extent that Reyes wishes to communicate with these individuals in
connection with pretrial motions, including summary judgment motions, he should confer with
defendants’ counsel to agree on a method that will balance Reyes’s desire to communicate with
witnesses without jeopardizing legitimate security concerns. See, e.g., Demaille v. Nassau
County, 2009 WL 791264 at *1 (permitting plaintiff to provide written questions for inmate
witnesses to counsel for defendants for forwarding to each inmate’s last known address).
Reyes also sought contact information for K. Walsh in order to effect service upon her. (Docket # 50 at
7). On October 6, 2016, this Court granted this request and directed that service be made on defendant Walsh.
(Docket # 68).
As noted above, with respect to the remaining disputes regarding defendants’
responses to the document requests, it appears that defendants have responded to the requests
and provided an explanation for their responses. (Docket ## 49 at ¶¶ 4-9, 11, 13-14; 50 at ¶¶ 1-2,
5-6; 60 at ¶¶ 38-73). Accordingly, to the extent Reyes is not satisfied with defendants’ responses
and further explanations, he must communicate to defendants, with specificity, the reasons why
defendants’ explanations have not resolved his concerns.
Responses to Interrogatories (Docket ## 45, 46)
Having reviewed the parties’ submissions relating to defendants’ interrogatory
responses, I find that the overwhelming majority of identified disputes have not been properly
addressed through an adequate conferral process. Nonetheless, certain of the disputes are
addressed below in order to assist the parties.
Several of Reyes’s interrogatories request defendants to indicate whether they
assert a particular contention and, if so, to state all facts and identify all documents used in
making that contention. (See, e.g., Docket ## 45, 46, Interrogatory Nos. 10, 11 (Wenderlich and
Farnham), 18-22 (Morgan)). Because defendants often did not make the particular contention
articulated by Reyes, they did not identify any facts or documents in support of the contention in
response to Reyes’s interrogatories. Reyes maintains that these responses are deficient. I
disagree. Defendants cannot be compelled to identify facts or documents to support contentions
that they do not in fact make.
Several of Reyes’s interrogatories request that defendants describe their
employment duties. (Docket ## 45, Interrogatory No. 14 (Wenderlich); 46, Interrogatory No. 1
(vonHagn, Clement, Oakes, Gould, Weaver)). Defendants objected to the interrogatories as
vague and overbroad, but failed to provide a narrative description of their duties. To the extent
that these requests seek information about their duties pertaining to the issues in this litigation,
they are relevant and should be answered.
Several of Reyes’s interrogatories seek information regarding an alleged
relationship between two of the defendants. (Docket # 46 at Interrogatory Nos. 17-19 (Clement,
vonHagn). Defendants objected to these requests and declined to answer them. Reyes maintains
that defendants should be required to provide answers to these interrogatories. (Docket # 55 at
16). I disagree. Reyes has failed to explain any relevance that this alleged relationship might
have to the issues in this litigation. In the absence of such an explanation, defendants are not
required to answer these interrogatories.
Reyes has requested that Wenderlich identify any previous criminal convictions.
(Docket # 45, Interrogatory No. 19 (Wenderlich)). Wenderlich objected to this request on the
grounds that it was overbroad and sought irrelevant information. Subject to those objections,
Wenderlich responded that he had not been convicted of any felonies. Reyes objects to this
response, maintaining that he is entitled to information relating to all prior convictions.
Although I disagree that Reyes is entitled to inquire regarding all prior convictions, I agree with
Reyes that Wenderlich’s response is too limited. Wenderlich should supplement his answer to
provide information relating to any offense involving dishonesty or false statements as
contemplated by Rule 609 of the Federal Rules of Evidence. See Torcasio v. New Canaan Bd. of
Educ., 2016 WL 299009, *2 (D. Conn. 2016).
Reyes maintains that several of defendants’ objections are invalid. (Docket # 55
at 14, 16-17). According to Reyes, to the extent his interrogatories contain incorrect factual
assumptions, defendants should be required to respond to them as if they pose hypothetical
questions. Reyes is mistaken. See Woodward v. Mullah, 2010 WL 3023117, *7 (W.D.N.Y.
2010) (“interrogatories calling for an opinion based on hypothetical facts are improper”)
(quotation omitted). Reyes also maintains that defendants improperly objected on the grounds of
vagueness and overbreadth without explanation. Although I agree with Reyes that the parties
will have to confer to discuss the appropriate scope of his interrogatories, I do not agree that
defendants’ objections were not properly asserted.
As stated above, the remaining disputes regarding the interrogatory responses
require the parties to adequately confer prior to raising them with the Court for resolution. For
several interrogatories, defendants objected and did not provide a response. (See, e.g., Docket
## 45 at Interrogatory Nos. 15 (Wenderlich), 16 (Morgan); 46 Interrogatory Nos. 11-13
(Clement, vonHagn), Interrogatory Nos. 19-20 (Oakes)). With respect to those interrogatories,
the parties need to discuss defendants’ objections and determine whether there is particular
information sought by Reyes that can be provided by defendants. Interrogatory No. 14
propounded to vonHagn requested that he identify the block nurse who was made aware of
Reyes’s concerns. (Docket # 46 at 9). vonHagn responded that he was unable to recall the
nurse, yet Reyes maintains that documents produced by defendants identify the nurse. (Docket
# 55 at 13). The parties should confer regarding this interrogatory to determine whether Reyes
still needs the information.
Clement objected to Interrogatory Nos. 14-16 on the grounds that the
interrogatories contained incorrect assumptions and were overbroad because it was not clear
what standards of practice were referenced in the interrogatory. (Docket # 46 at 20-22).
Nevertheless, Clement responded that he complied with DOCCS policies. To the extent Clement
maintains that he complied with DOCCS policies, he should identify those policies. If Reyes
seeks information relating to any other specific standards or policies, he must address that issue
through the conferral process.
With respect to the remaining interrogatories (Interrogatory No. 17 (Morgan),
Interrogatory No. 2 (vonHagn, Oakes), Interrogatory No. 7 (vonHagn), Interrogatory No. 17
(vonHagn), Interrogatory No. 19 (vonHagn), Interrogatory Nos. 6-7 (Clement), Interrogatory No.
16 (Oakes), Interrogatory No. 3 (Gould, Weaver), Interrogatory No. 9 (Gould)), it appears that
defendants have responded to Reyes’s questions. Accordingly, to the extent Reyes is not
satisfied with defendants’ responses, he must communicate his specific, outstanding concerns to
Responses to Requests for Admissions (Docket ## 47, 48)
Reyes takes issue with the vast majority of defendants’ responses to his requests
for admission. (Docket # 55 at 2-3). Defendants maintain that they properly responded to each
request. (Docket # 60 at ¶¶ 120-69). As with Reyes’s other discovery disputes, I find that he is
not entitled to the relief that he seeks because he has failed to fulfill his conferral obligations.
See Beasley v. State Farm Mut. Auto. Ins. Co., 2014 WL 1268709, *3 (W.D. Wash. 2014)
(“[l]ike other motions to compel, a motion to determine the sufficiency of answers is also subject
to the requirements that the moving party attempt first to confer with the other side to avoid the
need for a hearing”) (quotations and brackets omitted).
Several of Reyes’s disputes appear to be nothing more than his disagreement with
defendants’ answers in light of the facts of the case as he views them. This is not a proper basis
upon which to challenge the sufficiency of defendants’ answers.
The Court has reviewed defendants’ responses. With a handful of exceptions,
defendants appear to have responded to each request in accordance with Rule 36 of the Federal
Rules of Civil Procedure by either admitting the request, denying the request, admitting portions
of the request where possible, or stating their inability to admit or deny the request, with an
explanation for their inability to do so. See Fed. R. Civ. P. 36; see also Henry v. Champlain
Enters., Inc., 212 F.R.D. 73, 78 (N.D.N.Y. 2003) (“[as] an alternative to denying the requested
admission[,] [a] party is permitted to . . . set forth in detail the reasons why the answering party
cannot truthfully admit or deny the matter”) (internal quotations omitted).
There are several requests which defendants responded that they were unable to
admit or deny because they were unable to recall particular conversations, correspondence,
grievances, or other information. (Docket # 48, Request Nos. 4-5, 7-9 (Wenderlich), Request
Nos. 4-5, 8-11, 22 (Farnham)). I agree with Reyes that these responses should be supplemented
to indicate that defendants have made “a reasonable effort to secure information that is readily
obtainable from persons and documents within the responding party’s relative control” and to
describe those efforts. Henry v. Champlain Enters., Inc., 212 F.R.D. at 78.
Several of Reyes’s requests seek admissions regarding whether defendants were
aware of inmate complaints and whether they failed to investigate those complaints. (Docket
# 48, Request Nos. 18-19 (Wenderlich), Request Nos. 20-21 (Farnham)). Defendants objected to
these requests on the grounds that the requests assumed facts with which they disagreed.
Although defendants are permitted to make those objections, they should respond to those
portions of the requests, to the extent they can, that seek an admission as to whether they were
aware of complaints (whether or not they disagree that the complaints were valid) and whether
they failed to investigate those complaints.
Finally, several of Reyes’s requests for admission seek admissions relating to an
alleged relationship between two of the defendants. (Docket # 47 at Requests Nos. 11-12
(vonHagn), Requests Nos. 8-9 (Clement)). As discussed above, I discern no relevance to these
Request for Costs
Reyes also seeks costs in connection with the motion. (Docket # 55 at 3). Rule
37 of the Federal Rules of Civil Procedure provides that if a motion to compel is granted or if the
“requested discovery is provided after the motion was filed – the court must, after giving an
opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay
the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”
Fed. R. Civ. P. 37(a)(5)(A). Courts are afforded broad discretion in imposing sanctions.
Corporation of Lloyd’s v. Lloyd’s U.S., 831 F.2d 33, 36 (2d Cir. 1987) (citing Nat’l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)). A request for fees may be
denied where (1) the movant did not make a good faith effort to resolve the dispute before filing
the motion; (2) the non-moving party’s failure to provide the discovery response was
“substantially justified”; or (3) the award of fees would be unjust. Fed. R. Civ. P.
Because Reyes did not make a good faith effort to resolve these disputes before
filing the motion, he is not entitled to costs. In any event, Reyes has failed to demonstrate his
costs. Accordingly, that portion of Reyes’s motion seeking costs is denied. See Fed. R. Civ. P.
37(a)(5)(A)(i); 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).
Motions to Authorize Depositions Upon Written Questions
On May 27, 2015, this Court entered a scheduling order setting deadlines for this
litigation. (Docket # 21). At Reyes’s request, the discovery deadline contained in the original
scheduling order was extended on December 22, 2015. (Docket ## 31, 32). The amended order
provided that all discovery was to be completed on or before March 15, 2016. (Docket # 32).
Reyes subsequently requested that the deadline to file a motion to compel be extended, but did
not request any additional extensions. (Docket ## 51, 52). On June 15, 2016, and August 17,
2016, well after the expiration of the discovery deadline, Reyes filed motions seeking to take
depositions upon written questions of various non-party individuals.4 (Docket ## 58, 64).
Rule 16(b) directs the court to enter a scheduling order that limits the time to
complete discovery. Fed. R. Civ. P. 16(b)(3)(A). A “scheduling [o]rder is not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded ... without peril.” General v. Ctr. for
Disability Rights, 2010 WL 3732198, *2 (W.D.N.Y. 2010) (internal quotation omitted). Thus,
the rule provides that “[a] schedule may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4); Arnold v. Krause, Inc., 232 F.R.D. 58, 65 (W.D.N.Y. 2004)
Although not entirely clear, Reyes apparently seeks to pose questions to several witnesses that relate to
claims concerning Reyes’s incarceration at Attica Correctional Facility, which are not currently before the Court.
(Docket # 58 at ¶¶ 1-3). Additionally, Reyes seeks to pose questions to counsel for the defendants. (Docket ## 64
at ¶ 6; 64-14).
(no good cause to modify scheduling order to extend discovery when counsel made no attempts
to conduct discovery until after deadline had passed), aff’d and adopted, 233 F.R.D. 126
(W.D.N.Y. 2005). “Whether good cause exists turns on the diligence of the moving party.”
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation omitted); Kodak
Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., 2011 WL 6826650, *3
(W.D.N.Y. 2011) (“a district court is obliged to consider the diligence of the moving party, as
the ‘primary’ consideration, and it may consider other factors such as the prejudice to the
non-moving party, where the consideration of such other factors is necessary to a reasonable
exercise of discretion”) (citing Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir.
As discussed at length above, Reyes, a pro se litigant, has propounded
voluminous discovery requests throughout the course of this litigation and has received a
substantial amount of information from defendants. Reyes has demonstrated that he is aware of
the Court’s scheduling deadlines and has sought extensions of those deadlines when he believed
it was necessary. Reyes’s current motions were filed well beyond the deadline for discovery,
and he has provided no explanation for his failure to seek these non-party depositions prior to the
close of discovery. (Docket ## 58, 64). Under such circumstances, I am unable to find good
cause to permit Reyes to conduct this additional discovery now. Accordingly, Reyes’s motions
Reyes’s motion to compel (Docket # 55) is DENIED without prejudice. The
parties are directed to confer in good faith in accordance with the directions herein. Reyes’s
motions to authorize written depositions (Docket ## 58, 64) are DENIED.
Further, the stay imposed in this Court’s June 3, 2016 Order (Docket # 56) is
hereby vacated, and the scheduling deadlines are amended as follows:
All dispositive motions shall be filed no later than June 30, 2017. NOTE:
If the dispositive motion is filed against a party who is appearing in this action pro se, the
moving party must include the advisement set forth in the notice attached to this Order.
Responding papers are due by July 31, 2017. Reply papers, if any, shall
be filed by August 14, 2017. The motion will be taken under advisement without oral argument.
If no dispositive motions are filed, defense counsel shall notify the Court
in writing on or before the dispositive motion deadline date.
No extension of the above cutoff dates will be granted except upon written
joint motion, filed prior to the cutoff date, showing good cause for the extension.
In accordance with Fed. R. Civ. P. 16(f), if a party or party’s attorney
fails to obey this scheduling order or fails to participate in good faith, this Court will enter
appropriate sanctions against that party or that party’s attorney, including dismissal of
this action, if appropriate.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
March 30, 2017
PRO SE NOTICE
Plaintiff is hereby advised that the defendant has asked the Court to decide this case
without a trial, based on written materials, including affidavits, submitted in support of the
motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE
DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS
MOTION by filing his/her own sworn affidavits or other papers as required by Rules 56(c)
and (e) of the Federal Rules of Civil Procedure. An affidavit is a sworn statement of fact
based on personal knowledge that would be admissible in evidence at trial.
In short, Rule 56 provides that plaintiff may NOT oppose summary judgment
simply by relying upon the allegations in the complaint. Rather, plaintiff must submit
evidence, such as witness statements or documents, countering the facts asserted by the
defendant and raising issues of fact for trial. Any witness statements, which may include
plaintiff’s own statements, must be in the form of affidavits. Plaintiff may file and serve
affidavits that were prepared specifically in response to defendant’s motion for summary
Any issue of fact that plaintiff wishes to raise in opposition to the motion for
summary judgment must be supported by affidavits or by other documentary evidence
contradicting the facts asserted by defendant. If plaintiff does not respond to the motion
for summary judgment on time with affidavits or documentary evidence contradicting the
facts asserted by defendant, the Court may accept defendant’s factual assertions as true.
Judgment may then be entered in defendant’s favor without a trial.
Pursuant to Rules 7(a) and 56(a) of the Local Rules of Civil Procedure for the
Western District of New York, plaintiff is required to file and serve the following papers in
opposition to this motion: (1) a memorandum of law containing relevant factual and legal
argument; (2) one or more affidavits in opposition to the motion; and (3) a separate, short,
and concise statement of the material facts as to which plaintiff contends there exists a
genuine issue to be tried, followed by citation to admissible evidence. In the absence of
such a statement by plaintiff, all material facts set forth in defendant’s statement of
material facts not in dispute will be deemed admitted. A copy of the Local Rules to which
reference has been made may be obtained from the Clerk’s Office of the Court.
If plaintiff has any questions, he/she may direct them to the Pro Se Office.
Plaintiff must file and serve any supplemental affidavits or materials in opposition
to defendant’s motion no later than the date they are due as provided in Rule 7(b) of the
Local Rules of Civil Procedure for the Western District of 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?