Benitez v. King et al

Filing 40

DECISION & ORDER granting in part and denying in part 34 Motion to Compel. Defendants are directed to make arrangements to permit plaintiff to obtain from his property bags his letters and other documents responsive to defendants' requests. By no later than October 25, 2018, plaintiff must be provided with an adequate opportunity to obtain those documents from his property bags or other receptacle in which they are stored. By no later than November 8, 2018, plaintiff must produce to de fendants' counsel copies of all documents responsive to defendants' document requests that are in his possession, custody or control, including those that are stored in his property bags or other receptacle to which he has access. Signed by Hon. Marian W. Payson on 10/10/2018. Copy of this Decision & Order sent by First Class Mail to plaintiff Henry Benitez on 10/10/2018 to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
HENRY BENITEZ
DECISION & ORDER
Plaintiff,
17-CV-6230W
v.
MINDY KING, et al.,
Defendants.
_______________________________________

Pending before this Court is defendants’ motion for an order compelling plaintiff
to produce certain documents demanded in Defendants’ First Document Demands. (Docket
# 34-1). The documents at issue are grievances and related documents filed by plaintiff
concerning his causes of action. (Id.).
Plaintiff has opposed the motion on the grounds that he does not have copies of
those documents in his possession and does not have the ability to obtain them. (Docket # 36).
He claims that responsive documents are contained within his personal letters that are in property
bags maintained by the facility. (Id. at ¶¶ 2-4). According to plaintiff’s Declaration, he filed a
grievance requesting that he be provided with copies of his correspondence, but his request was
denied. (Id. at ¶¶ 2-6). Defendants did not reply to plaintiff’s opposition, although they have
argued in a subsequently-filed motion to dismiss that plaintiff “has been unable or unwilling to
provide any evidence supporting []his contention [that he filed grievances relating to all his
claims].” (Docket # 38-4 at 1).

In support of his opposition, plaintiff has submitted a copy of the grievance he
filed requesting production of his personal letters. (Docket # 36 at 5-7). The record shows that
the Superintendent denied his appeal of the grievance on the grounds that:
SHU porters do not distribute cell property to incoming SHU
inmates, the SHU Property Officer does. Grievant was provided
the opportunity to obtain the property he was entitled to. Appeal is
denied.
(Id. at 7). Plaintiff apparently maintains that he was never given the opportunity to obtain copies
of his personal letters after he was initially placed in SHU (which was before the discovery
requests were served). (See Docket # 36 at ¶ 11).
By contrast, defendants maintain that “plaintiff’s facility” has advised defendants’
counsel that plaintiff, who is housed in SHU,
has access to all his paperwork upon request[;] [p]er the facility,
[p]laintiff could have simply requested any documents in any of
his property bags, and has never been denied any property bags;
[t]he facility informed . . . there is no reason [p]laintiff could not
have produced any documents demanded located in his property
bags.
(Docket # 34-1 at ¶ 8).
The record before the Court is unclear whether plaintiff had access upon his
request to the “personal letters” he identifies as responsive to defendants’ requests following the
service of those document demands. Accordingly, defendants are directed to make arrangements
to permit plaintiff to obtain from his property bags his letters and other documents responsive to
defendants’ requests. By no later than October 25, 2018, plaintiff must be provided with an
adequate opportunity to obtain those documents from his property bags or other receptacle in
which they are stored. By no later than November 8, 2018, plaintiff must produce to
defendants’ counsel copies of all documents responsive to defendants’ document requests that

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are in his possession, custody or control, including those that are stored in his property bags or
other receptacle to which he has access.

CONCLUSION
For the reasons stated above, defendants’ motion to compel (Docket # 34) is
GRANTED in PART and DENIED in PART.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
October 10, 2018

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