Benitez v. Salotti et al
Filing
94
DECISION & ORDER denying 78 Motion to Compel. Signed by Hon. Marian W. Payson on 7/25/2018. Copy of this Decision & Order sent by First Class Mail to plaintiff Henry Benitez on 7/25/2018 to his address of record. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
HENRY BENITEZ,
DECISION & ORDER
Plaintiffs,
16-CV-6219W
v.
K. SALOTTI, Nurse, et al.,
Defendants.
_______________________________________
Plaintiff, who is incarcerated and represents himself, has filed a motion to compel
defendants to identify those John and Jane Doe Defendants (the “Doe Defendants”) whose
names plaintiff does not know. (Docket # 78). Plaintiff maintains that counsel for the named
defendants has not cooperated with him in his efforts to identify the Doe Defendants and has
acted in bad faith. (Id. at ¶¶ 9-10). The record refutes plaintiff’s characterization of counsel’s
conduct. Plaintiff’s motion is denied.
Plaintiff’s original complaint in this action filed on April 4, 2016, which was
brought pursuant to 42 U.S.C. § 1983, named thirty defendants and twelve Doe Defendants.
(Docket # 1). Separate answers have been filed by twenty-nine of the named defendants.
(Docket ## 20-46, 49, 51). In accordance with this Court’s scheduling order, on March 31, 2017,
defendants provided disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure.
(Docket ## 58, 62-63). Those disclosures included, inter alia, copies of plaintiff’s medical
records, grievance records, memoranda, correspondence, and disciplinary hearing records.
(Docket ## 62-63). Plaintiff also served interrogatories, some of which asked various of the
defendants to identify the names and titles of the Doe Defendants; they answered that they did
not know the Doe identities. (Docket ## 64, 68-72). The deadline for completion of fact
discovery was February 28, 2018. (Docket # 79).
On May 19, 2017, plaintiff wrote to defendants’ counsel to inquire about the
identities of various Jane Does. (Docket # 78 at 8). Three days later, counsel responded by
letter, “If you can identify specific [medical records] and cannot read names, please provide me
with those [medical records] and I will attempt to identify these people’s names.” (Id.). In
response to plaintiff’s subsequent identification of entries on particular medical records,
defendants’ counsel identified two individuals (Nurse Leona Deming and Dr. Tarbout). (Docket
# 82 at 3, 8). Counsel indicated the name of the provider for one entry was “unknown.” (Id.).
Shortly thereafter, plaintiff apparently inquired about another Doe Defendant with reference to
facility logbooks (id. at 3);1 counsel responded by letter dated July 11, 2017, that if plaintiff
provided a copy of the logbook entry at issue, he would inquire about it. (Docket # 78 at 10).
According to counsel, plaintiff did not provide a copy of the logbook entry; nor apparently did he
request through discovery copies of any relevant logbook records he may not have had.2 Rather,
over five months later, on December 20, 2017, plaintiff filed the instant motion. (Docket # 78).
This record demonstrates that defendants’ counsel timely responded to plaintiff’s
letters seeking assistance in deciphering names on records that plaintiff finds illegible. Counsel
reasonably requested plaintiff to provide him with copies of the illegible entries so that counsel
could attempt to ascertain the names. In the first instance, plaintiff did so, and counsel was able
to identify the names on four of the five entries queried. In the second instance, plaintiff
inexplicably did not identify the logbook entry about which he sought information. If plaintiff
1
A copy of plaintiff’s letter is not in the record before the Court.
2
The record is unclear whether defendants have produced logbook records to plaintiff.
2
had the records about which he wanted counsel to inquire, he should have provided them to
counsel. If he did not, he should have sought them through the discovery process. There is no
reason to believe plaintiff could not have done one or the other.
Plaintiff’s pending motion states, in sum and substance, that he believes the
identifies of the Doe Defendants are contained in defendants’ records and the records defendants
have produced “are irrelevant and incomplete since they do not reflect the identity of the John
Doe and Jane Doe individuals listed in the complaint.” (Id. at ¶¶ 4, 9). These conclusory
allegations are insufficient to impose on defendants’ counsel the obligation to review every
conceivable record relating to the claims against forty-two named and unnamed defendants to
guess at the identities of the Doe Defendants whom plaintiff has included in his complaint.
Plaintiff must do more than he has done here to meet his burden of identifying those additional
defendants he wishes to sue whose names he does not know. See, e.g., Bellet v. City of Buffalo,
2010 WL 3522224, *5 (W.D.N.Y. 2010) (“plaintiff had a number of discovery devices available
to him to identify the correct defendant, . . . but he failed to do so[;] [t]his failure . . . falls upon
plaintiff, not the court”); Gillard v. Rovelli, 2010 WL 5149277, *8 (N.D.N.Y.) (recommending
dismissal of Doe defendants; “a pro se prisoner proceeding in forma pauperis is required to
provide the information to identify the defendant to be served, . . . which plaintiff has not done”),
report and recommendation adopted by, 2010 WL 5147258 (N.D.N.Y. 2010); Carpio v. Luther,
2009 WL 605300, *1 (W.D.N.Y. 2009) (“plaintiff . . . retains the obligation to provide the
necessary information to name or identify the defendant and to serve him[;] [w]ithout any further
information, neither the court nor the Attorney General’s Office is in a position to assist plaintiff
and it will therefore be the responsibility of plaintiff to attempt to learn or obtain information
regarding the identities [of the Doe defendants] through discovery”); Hunter v. Hill, 2009 WL
3
483154, *2 (W.D.N.Y. 2009) (noting that “plaintiff was advised that if he could not identify the
defendant in this matter or provide sufficient information so that the Court could further
request[,] pursuant to Valentin, . . . the Erie County Attorney’s Office to ascertain whom the
defendant may be and identify him so that service could be made, the Court would have no
alternative but to dismiss the [complaint]”).
CONCLUSION
For the reasons stated above, plaintiff’s motion to compel (Docket # 78) is
DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 25, 2018
4
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