UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
AKO BURRELL, Plaintiff, -v.- 9:22-CV-1178 (DNH/MJK) DONALD UHLER, et al. Defendants. _____________________________________________________________________ AKO BURRELL, Plaintiff, pro se MITCHELL J. KATZ, U.S. Magistrate Judge
ORDER On January 13, 2025, Plaintiff filed two discovery motions in this case seeking:1 1. leave to serve additional interrogatories on Defendants and a non-party witness who is identified as DIN 6930, because he is unable to pay for a stenographer (Dkt. No. 108); and 2. to compel Defendants to produce certain video, audio, and documents without cost. (Dkt. 110). Defendants have not responded to either motion.2
1 These motions were mailed on January 8, 2025—after the December 27, 2024 discovery deadline. But as discussed below, the subject of these motions should have been raised long ago. 2 Notwithstanding Defendants’ failure to respond to Dkt. 108 and 110, the Court is nevertheless “charged with the duty to control its docket and to satisfy its obligation to ‘secure the just, speedy, and inexpensive determination of every action.’” Rensselear Polytechnic Inst. V. Apple Inc., No. 1:13-CV- 633, 2014 WL 201965, at *8 (N.D.N.Y Jan. 15, 2014) (quoting Fed. R. Civ. P. 1). I. PROCEDURAL HISTORY On October 23, 2023, the Court issued a Mandatory Pretrial Discovery and
Scheduling Order directing completion of discovery by April 23, 2024. (Dkt. 47). Three days later, Plaintiff requested a copy of the docket and an extension of the discovery deadline, alleging that his legal documents were being withheld from him. (Dkt. 51). Obliging Plaintiff, the Court extended the discovery deadline to May 23, 2024. (Dkt.
52). On January 10, 2024, Plaintiff asked the Court for an order directing Defendants to provide him with their availability for depositions and Attica Correctional Facility to
provide him with use of Webex. (Dkt. 57). In response, defense counsel took no position with respect to Plaintiff’s request for a Court order to depose Defendants, but they noted that Plaintiff had not served any deposition notices. (Dkt. No. 58). Defense
counsel also noted that there were sixteen Defendants and that deposition dates could not be provided since Plaintiff had not identified which Defendants he sought to depose. (Id.). Also, defense counsel expressed concern that Plaintiff would be unable to retain a stenographer for the “number of depositions he has requested.” (Id.). Subsequently,
Plaintiff requested permission to use a recorder for the depositions he sought to conduct. (Dkt. 59). On February 1, 2024, Plaintiff moved to consolidate this action, 9:23-CV-98, and
9:22-CV-1156 for purposes of conducting depositions. (Dkt. 60). The next day, Plaintiff again moved for a Court order seeking a tape recorder, notary, and use of Webex. (Dkt. 61). The Court responded:
TEXT ORDER: The plaintiff’s recent letter motions to the court concerning discovery/deposition issues [Dkt. Nos. 57, 59, 60, 61] are pending before the court, and the court is in the process of scheduling a discovery conference to resolve these issues. In the interim, no further submissions will be accepted from the parties concerning the discovery/deposition issues that have been raised. Any further submissions received will be stricken from the docket. Authorized by US Magistrate Judge Mitchell J. Katz on 2/7/2024. (Copy served via regular mail)(meb) (Entered: 02/07/2024) (Dkt. 64) (emphasis added). The very next day, Plaintiff moved for a Court order seeking to conduct depositions and filed a letter request which included the names of three incarcerated individuals he wanted to depose. (Dkts. 69, 70). Three weeks later, the Court held a stenographically-recorded-video conference with the parties and entered the following text minute entry: The court discussed with plaintiff that he must comply with the Local Rules of the court and to only file letters that correspond to his specific case. The court and the parties discussed at length the numerous filings the court has received from plaintiff. The parties should rely on the transcript of this conference as documentation of the details of the court’s rulings, guidance, and the supporting reasons. The court has DENIED without prejudice 57 59 65 66 69 70 71 plaintiff’s letter motions and 60 plaintiff's letter motion is DENIED with prejudice. As to 68 plaintiff’s letter motion, the court directed the Assistant Attorney General’s office to provide a copy of the complaint and docket sheet to plaintiff. On or before 4/29/2024, the Assistant Attorney General will respond to plaintiff's interrogatories by regular mail. Defense counsel will also initiate the request to obtain the OSI file from NYS DOCCS. Pretrial deadlines have been extended, as reflected in the accompanying text order. Appearances: Ako Burrell, pro se plaintiff; Rachel Ouimet, AAG for defendants. (Court Reporter: Jodi Hibbard. Time: 1:35 PM - 2:28 PM.) (Copy served by regular mail)(kmc) (Entered: 02/26/2024). The Court also issued a text order extending the discovery deadline to July 31, 2024. (Dkt. 72).
Three days after the conference, Plaintiff requested subpoenas for the non-party incarcerated individuals. (Dkt. 73). Again, defense counsel took no position on Plaintiff’s request for subpoenas. (Dkt. 74). But they reserved their objections relative
to safety and security concerns and raised their concern about Plaintiff’s inability to retain a stenographer for the requested depositions. Id. The Court, addressing the parties’ submissions, issued a text order stating: TEXT ORDER: The Court has reviewed plaintiff’s letter 73 requesting the court issue subpoenas to nonparty incarcerated persons who are alleged to be witnesses to events described in plaintiff’s complaint. From plaintiff’s letters 59 66 and 69, the Court is aware that plaintiff proposes to use an audio device to record the proposed depositions. The Court has also reviewed defendants’ response 74 which takes no position regarding the request for subpoenas, reserving rights with respect to safety and security issues, and concerns that plaintiff has yet to show his ability to pay for the costs and expenses arising from the proposed depositions, including those to be charged by a stenographer for preparing and providing transcripts. These issues were discussed at length during a conference held on February 26, 2024. While plaintiff has identified the alleged witnesses and asserts that they were present, he has not stated why he needs to depose these inmates. Without this information, the Court is unable to determine if the inmates’ testimony will be probative or unreasonably cumulative and duplicative. The Court also does not have any information regarding possible security and logistical concerns. Finally, notwithstanding defense counsel and the Court’s requests, plaintiff has not provided information to establish how the fees, costs and expenses (including transcripts) of conducting the requested examinations will be paid. For these reasons, the Court denies plaintiff’s request for the issuance of subpoenas to nonparty incarcerated persons WITHOUT PREJUDICE. SO ORDERED by U.S. Magistrate Judge Mitchell J. Katz on 3/14/2024. (Copy served via regular mail)(kmc) (Entered: 03/14/2024)
(Dkt. 75).
Plaintiff appealed that text order, Defendants responded, and U.S. District Court Judge David Hurd denied Plaintiff’s appeal. (Dkts. 76, 78, 79). On July 24, 2024, defense counsel requested a ninety-day extension of the discovery deadline. (Dkt. 83). The Court granted the extension and enlarged the discovery deadline to October 29, 2024. (Dkt. 84). Defense counsel then requested another extension, 11 days before the discovery deadline, because Plaintiff was released from custody the day before his scheduled deposition, and he failed to update his address on the docket. (Dkt. 86). The Court issued the following text order granting Defendants’ request:
TEXT ORDER: Granting defendants’ letter request at 86 for a sixty (60) day extension of the discovery deadline. Discovery cutoff is 12/27/2024. Defendants should attempt to confer with plaintiff to determine a mutually agreed upon date, time and location on which to hold plaintiff's deposition. To the extent plaintiff does not respond to defendants[’] communications concerning his deposition, or otherwise fails to participate in the scheduling of his deposition, defendants shall proceed to determine the logistics. Defendants shall submit a proposed "So Ordered" letter to this court within fifteen days identifying the date, time and place that plaintiff's deposition will be held, and advising the status of communications with plaintiff. SO ORDERED by Magistrate Judge Mitchell J. Katz on 10/28/2024. (Copy served via regular mail)(kmc) (Entered: 10/28/2024)
(Dkt. 87) (emphasis added). Roughly two weeks later, Plaintiff moved for a court order “terminating the examination on the ground that it is being conducted in bad faith & in a manner as to
unreasonably annoy, embarrass, or oppress the deponent.” (Dkt. 90). That same day, in response to Plaintiff’s request, the Court issued the following text order: TEXT ORDER: Plaintiff’s motion for a protective order 90 is denied. Plaintiff voluntarily commenced this action. In doing so, he subjected himself to discovery, including a deposition by oral examination pursuant to FRCP 30. The proposed deposition serves the purpose provided by the Federal Rules of Civil Procedure to obtain information that is relevant to any party's claim or defense. Plaintiff has provided no facts to support his conclusory statement that the deposition sought “serve only to embarrass and harass” him. To the extent that plaintiff's letter motion also objects to the deposition being conducted virtually, that objection is overruled. Plaintiff will sit for a deposition, under oath, conducted virtually for the reasons previously stated. Defendants have failed to abide by this court's directive 87 to submit a proposed “So Ordered” letter by November 12, 2024, identifying the date, time, and place of plaintiff's deposition. On or before November 14, 2024, defendants shall submit a proposed "So Ordered" letter to this court identifying the date, time and place that plaintiff's deposition will be held, and advising the status of communications with plaintiff. Authorized by Magistrate Judge Mitchell J. Katz on 11/13/2024. (Copy served via regular mail)(meb) (Entered: 11/13/2024). (Dkt. 91) (emphasis in original). Like before, Plaintiff appealed the order, Defendants responded, and Judge Hurd denied Plaintiff’s appeal. (Dkts. 91, 97, 102). Plaintiff—on the discovery deadline—requested an extension of the discovery cut-off date, alleging that the facility where he was housed was not approving his outgoing mail without a Court order. (Dkt. 99).3 Two days later, the Court denied the request:
TEXT ORDER RE 98 [request for a free copy of the complaint], 99 Letter Requests: Plaintiff's request for an extension of his discovery deadline is denied without prejudice. The discovery deadline has been extended numerous times since the inception of this action. The court notes that plaintiff is a frequent litigator in this court, whose indiscriminate litigation tactics routinely cause extensive delays in his cases. Defendants are directed to file status update by 12/26/24 confirming whether the 12/6/24 deposition took place, and the status of discovery. Plaintiff's request for court intervention is otherwise denied. His concerns regarding his mail should be addressed through administrative channels at his current facility and, if necessary, by means of a properly filed action. It bears noting that, to the extent plaintiff complains of an inability to send mail at his current facility, the court has been in receipt of a multitude of correspondences from plaintiff in the past week alone, including the letter request in which he seeks the court's intervention. The Clerk is directed to provide Plaintiff with a one- time courtesy copy of the complaint for this action, together with a copy of the docket sheet. Plaintiff is advised that future copies of any documents will be subject to the $0.50 per page rule. Authorized by Magistrate Judge Mitchell J. Katz on 12/19/2024. (Copy served via regular mail)(meb) (Entered: 12/19/2024) (Dkt. 100) (emphasis added).
3 Plaintiff was reincarcerated between Defendant’s request for an extension (Dkt. 87) and his own request at Dkt. 99. II. DISCUSSION For the reasons stated below, the Court is denying Plaintiff’s motions with prejudice.
A. Plaintiff’s Motion at Dkt. 108 is Denied Plaintiff’s motion at Dkt. 108 for leave to serve additional interrogatories on Defendants and an order directing compliance with his deposition notices for non- parties, is denied with prejudice.
The Court’s concerns—raised in its March 14, 2024 text order—persist and Plaintiff’s current motion offers nothing to address them. Like his failure a year ago, Plaintiff has not demonstrated that the witnesses he seeks to depose have any information that is relevant to his claims and proportional to the needs of this case. See
Fed. R. Civ. P. 26(b)(1). Plaintiff has been afforded more than ample time to provide this information to the Court. He has squandered it. Plaintiff has no one to blame other than himself for his idleness.
Similarly, Plaintiff has not shown that he can afford the requested depositions. See Murray v. Palmer, No. 9:03-CV-1010 (DNH/GHL), 2006 WL 2516485, at *4 (N.D.N.Y. August 2006) (“[A] litigant proceeding in forma pauperis does not have a right to a waiver of (1) the cost of a deposition stenographer, (2) the daily attendance
fee and mileage allowance that must be presented to an opposing witness under Rule 45 of the Federal Rules of Civil Procedure, or (3) the copying cost of any deposition transcripts.”); see also Sitts v. Simmonds, No. 9:20-CV-1475 (TJM/ML), 2021 WL 1853642 (N.D.N.Y. May 6, 2021) report recommendation adopted 2022 WL 2666909 (July 11, 2022) (“However, as the Court has already advised, that Plaintiff proceeds pro
se and in forma pauperis does not relieve him of the obligation to pay all costs and fees associated with prosecuting his claims, including the costs associated with discovery of evidence.”) (citation omitted). Northern District of New York Local Rule 5.1.4 provides
in part that “[t]he granting of an in forma pauperis application shall not relieve a party of the obligation to pay all other fees for which the party is responsible regarding the action, including but not limited to copying and/or witness fees.” Plaintiff is also directed to footnote number 5 of Judge Hurd’s February 15, 2023 Decision and Order
which states that “although the Court has granted [Plaintiff’s] application to proceed in form pauperis, [Plaintiff] will still be required to pay fees that he may incur in this action, including copying and/or witness fees. (Dkt. 5).
B. Plaintiff’s Motion at Dkt. 110 is Denied. Plaintiff’s motion for relief from paying the copy charges associated with discovery is denied with prejudice. Plaintiff is again reminded of his obligations under N.D.N.Y. Local Rule 5.1.4 and Judge Hurd’s March 7, 2023 Decision and Order. Given Plaintiff’s prolific litigation history in the Northern District of New York,
he is all too familiar with the Court’s rules and his obligations as a litigant. Like in other cases before this Court, Plaintiff has not only waited until the eleventh hour to seek discovery, his motions at Dkt. 108 and 110 in this case were mailed after the December 27, 2024 discovery deadline and in violation of N.D.N.Y. Local Rule 37.1(h). Even if Plaintiff had timely filed his motions at Dkt. 108 and 110, they would still be denied. The discovery deadline in this case has been extended several times because of Plaintiffs failure to participate in the prosecution of his action. It has been approximately sixteen months since this case has been assigned to this Court and Plaintiff is still seeking the same relief that was previously denied without prejudice. For reasons known only to him, Plaintiff has still not provided the Court with the information requested of him in the March 14, 2024 text order. Simply put, Plaintiff is wasting the Court’s time and resources. WHEREFORE, based on the findings above, it is hereby ORDERED, that Plaintiff's motions at Dkt. 108 and 110 are DENIED WITH PREJUDICE.
Dated: April 2, 2025
U.S. Magistrate Judge
2006 WL 2516485 and 58. Plaintiff has submitted a reply and a sur-reply. Dkt. Only the Westlaw citation is currently available. Nos. 57 and 60. United States District Court, N.D. New York. In ruling on these discovery motions, the Court is mindful of the following general propositions concerning pretrial James MURRAY, Plaintiff, discovery. First, “actions alleging violations of § 1983 require v. especially generous discovery.” Cox v. McClellan, 174 F.R.D. R. PALMER; S. Griffin; M. Terry; F. Englese; 32, 34 (W.D.N.Y.1997) (Feldman, M.J.) (citing the late Sergeant Edwards; K. Bump; K.H. Smith; District Judge James T. Foley's decision in Inmates of Unit 14 v. Rebideau, 102 F.R.D. 122, 128 [N.D.N.Y.1984] ). Second, A. Paolano; Ted Nejwith, Defendants. as stated in Obiajulu v. City of Rochester, Dep't of Law, No. 903-CV-1010 (DNH/GHL). | An objection to a document request must Aug. 29, 2006. clearly set forth the specifics of the objection and how that objection relates Attorneys and Law Firms to the documents being demanded. The James Murray, Pine City, NY, Plaintiff, Pro Se. burden is on the party resisting discovery to clarify and explain precisely why its Eliot L. Spitzer, Attorney General of the State of New objections are proper given the broad and York, Albany, NY, James Seaman, Esq., Assistant Attorney liberal construction of discovery rules General, for the Defendants. found in the Federal Rules of Civil Procedure. DECISION AND ORDER GEORGE H. LOWE, United States Magistrate Judge. Obiajulu v. City of Rochester, Dep't of Law, 166 F.R.D. 293, 295 (W.D.N.Y.1996) (Feldman, M.J.) (citations omitted). *1 Plaintiff James Murray commenced this action on August 14, 2003. Dkt. No. 1. By Order of United States District Judge David N. Hurd filed on August 20, 2003, Plaintiff was I. PROCEDURAL MATTERS directed to file an Amended Complaint. Dkt. No. 2. Plaintiff The Court initially notes that Plaintiff has not demonstrated submitted an Amended Complaint on January 27, 2004. that he made a good faith effort to resolve discovery Dkt. No. 6. The Amended Complaint asserted allegations matters with Defendants' counsel after receiving Defendants' of wrongdoing against the Defendants regarding incidents responses and before filing these motions to compel that occurred at Great Meadow Correctional Facility (“Great discovery. Rule 7.1(d)(1) of the Local Rules of the Northern Meadow”). Id. Plaintiff alleged that certain Defendants District of New York (“Local Rules”) requires that a party assaulted him while other Defendants failed to protect him make good faith efforts to resolve any discovery dispute prior from the alleged assault. Dkt. No. 6. Plaintiff also alleged to filing any motion to compel discovery. The Pretrial Order that certain Defendants were deliberately indifferent to his that the Court previously issued in this action specifically serious medical needs. Id. By Order of District Judge Hurd advised Plaintiff of this Rule, and cautioned Plaintiff that filed February 5, 2004, Plaintiff's Amended Complaint was any motion to compel filed in this action that was not approved for filing and service was directed. Dkt. No. 7. accompanied by documentation that substantiated his efforts On October 15, 2004, Defendants Bump, Edwards, Griffin, to resolve any discovery disputes prior to the filing of such Nejwith, Palmer, Paolano, Smith and Terry submitted an motion would be denied. Dkt. No. 42 at 3.1 Answer to the Amended Complaint. Dkt. No. 35. Currently before the Court are two Motions to Compel 1 Specifically, the Pretrial Order stated: Discovery filed by Plaintiff. Dkt. Nos. 52 and 54. Defendants unless (a) the party has made good faith efforts his second motion to compel and other discovery to resolve the issues in dispute as directed materials to his reply. See Dkt. Nos. 54 and 57. in L.R. 7.1(d) and (b) the related discovery Since the discovery materials are lengthy and not materials accompany the motion to compel. clearly referenced in Plaintiff's motions, the Court ANY MOTIONS NOT ACCOMPANIED will address the discovery issues in the Order set BY DOCUMENTATION SHOWING THAT forth in Plaintiff's motions. PARTY'S EFFORTS TO RESOLVE ANY DISCOVERY DISPUTES PRIOR TO FILING A. DOCS Employees Manual (June 1999 Edition) A MOTION TO COMPEL WILL BE DENIED Relating to Use of Batons3 F LO OR C AF LA RIL UU LR EE . TO COMPLY WITH THIS 3 DOCS refers in all instances to the New York State Dkt. No. 42 at 3. Department of Corrections. *2 The Court could deny Plaintiff's motion solely for Plaintiff requested a copy of the DOCS Employees Manual his failure to make good faith efforts to resolve discovery (June 1999 edition) pertaining to the use of batons by disputes. See Local Rule 7.1(d)(1). However, in light of correctional officers. Dkt. No. 52 at 1. After the first motion Plaintiff's pro se status, and because Defendants have fully to compel was filed, Defendants provided Plaintiff with “the briefed their opposition to Plaintiff's motions to compel, the portion of the 6/99 Employee Manual pertaining to the use of Court will address the merits of the motions as well. force.” Dkt. No. 56 at ¶ 16. Defendants have now substantially complied with Plaintiff's request. This aspect of Plaintiff's While Defendants argue that Plaintiff's second motion to motion is denied as moot. compel should be denied as it was filed after the expiration of the motion to compel filing deadline, see Dkt. No. 56 at B. DOCS Directive 4944 ¶ 33, this is incorrect. As the Second Circuit has noted, a Plaintiff asserts that he was provided with a copy of the 2002 document filed by an inmate is deemed “filed” when it is revision of Directive 4944, but in fact needed the April 7, delivered to prison officials. Dory v. Ryan, 999 F.2d 679, 682 1999 version of the Directive. Dkt. No. 52 at 2. Defendants (2d Cir.1993). Plaintiff's second motion was dated January have since provided Plaintiff with a copy of the correct 29, 2005. Dkt. No. 54 at 7. Plaintiff has also submitted a version of Directive 4944. See Dkt. No. 56 at ¶ 16. Therefore, copy of an “Authorized Advance Request” dated January 31, this portion of Plaintiff's motion is also denied as moot. 2005 which he contends demonstrates that prison officials had received his second motion to compel for mailing no later than January 31, 2005. Dkt. No. 57, Ex. A. Since the motion to C. Master Index compel filing deadline expired on January 31, 2005, see Dkt. Plaintiff seeks the “master indexes kept by the Department of No. 51, Plaintiff's motion is deemed timely filed. Correctional Services and by the Great Meadow Correctional Facility for August 17, 2000 to date.” Dkt. No. 52 at 4. Defendants object to this request for two reasons. First, II. FIRST MOTION TO COMPEL Plaintiff's actual discovery request made no request for a Plaintiff's first motion to compel is actually a series of separate master index for Great Meadow, but only for DOCS (see motions, each relating to a specific discovery request.2 The Dkt. No. 54, third attachment, ¶¶ 15, 16). Second, Defendants Court will review each disputed request individually. provided Plaintiff with a copy of the master index for “DOCS directives” but objected to providing Plaintiff with “a master 2 Local Rule 26.2 provides in relevant part that index of all DOCS records as overly broad and not reasonably “[a]ny motion pursuant to Fed.R.Civ.P. 37 shall be likely to lead to the discovery of admissible evidence.” Dkt. accompanied by the discovery materials to which No. 56 at ¶ 18. Defendants characterize Plaintiff's request for the motion relates if those materials have not a master index of all DOCS records as a “fishing expedition.” previously been filed with the Court.” Plaintiff has Id. The Court finds that the Plaintiff has not established a not attached a copy of all of the discovery materials specific need, as related to his action, for a copy of the to which the motions relate along with his motions master index for all records held by DOCS. Moreover, the of Plaintiff's motion is therefore denied . employee) could operate the video-camera. Id. If the video- camera were operated by a correctional employee (or court employee), Plaintiff states that he could pay for the cost of D. Free Copy of Medical and Mental Health Records the video tapes only; he states that he could not afford to pay *3 Plaintiff wants the Defendants to provide him with a any other costs associated with a normal oral deposition. Id. free copy of his medical and mental health records. Dkt. Implicit in this proposal is an argument that either Defendants No. 52 at 6. Plaintiff claims that the medical release that he or the Court should pay those other costs. To accomplish the signed authorizing release of the records to the Defendants proposed depositions, Plaintiff requests that the Court order also entitled Plaintiff to receive free copies. Id. Defendants Defendants to enter a written stipulation, pursuant to Rule object, stating that the medical release did not indicate that 29 of the Federal Rules of Civil Procedure, modifying the Plaintiff would receive a free copy. Dkt. No. 56 at ¶ 20. procedures ordinarily governing depositions. Id. Moreover, Defendants argue that “litigants must fund their own discovery” and, in any event, Plaintiff “is free to review *4 Defendants object for two reasons. Plaintiff never served his own medical records.” The Court has reviewed the a notice of deposition upon any of the Defendants prior to medical release executed by Plaintiff. See Dkt. No. 56, Ex. D. the expiration of the discovery deadline, therefore he is now The release does not entitle Plaintiff to receive a free copy of barred from conducting such discovery.5 Dkt. No. 56 at ¶ his health care records. 24. Additionally, Defendants contend that Plaintiff's proposed deposition procedure does not comport with the Federal Rules Furthermore, neither Fed.R.Civ.P. 34, nor 28 U.S.C. § 1915, of Civil Procedure. Id. at ¶ 25. which governs proceedings in forma pauperis,4 requires a d be yf e an d pa an rt t yt o b a rs insi gs it n i gn f si un ia t n ac gin ag in t sh te ic t.o s Wt o ilf l il ai mtig sa t vi .o n C i on uc gu hr lr ie nd , 5 The discovery deadline expired on December 30, No. 95-CV-1737, slip op. at 2-3 (N.D.N.Y. May 31, 1996) 2005. See Dkt. No. 51. (Pooler, J.) (“[C]opying and/or witness expenses are not The Court agrees with both arguments advanced by included among the delineated expenses for which the Court Defendants. The Court would add only two points. First, can direct payment.”); Billups v. West, No. 95 Civ. 1146, Plaintiff has not shown cause for the rather extraordinary 1997 WL 100798, at *7 (S.D.N.Y. Mar. 6, 1997). Defendants' relief he requests-an order directing Defendants to enter into obligations under Rule 34 extend only to the requirement of a written stipulation dispensing with the requirement that a providing such documents for inspection and, if requested, deposition be preceded by the administration of an oath,6 for photocopying at Plaintiff's expense. The Court therefore and shifting the cost of several depositions from Plaintiff to directs the Defendants to, within 30 days of the date of this Defendants or the Court.7 Nor has Plaintiff shown that such Order, produce for Plaintiff's inspection at Plaintiff's current an order would even result in the production of evidence correctional facility a copy of Plaintiff's medical records, that is admissible during trial or any summary judgment and any of Plaintiff's mental health records that the facility motion (i.e., sworn deposition testimony that is free of any maintains. If Plaintiff wishes to obtain actual copies of any “chain of custody” concerns resulting from, for example, the of the records made available to him for inspection, he shall videotaping being conducted by Plaintiff's family members). bear the cost of such copies. 6 4 See Fed.R.Civ.P. 28(a), 30(b)(4). The Court notes that Plaintiff was granted in forma pauperis status under 28 U.S.C. § 1915, on July 9, 7 See, e.g., Fed.R.Civ.P. 30(b)(2). 2004. Dkt. No. 13. Second, Plaintiff's argument that he should be excused from the requirements of having to pay the costs of a deposition E. Oral Depositions of Defendants because he is a “poor plaintiff” is unpersuasive. See Dkt. Plaintiff seeks to take oral depositions of Defendants. Dkt. No. 52 at 12. Although Plaintiff has been granted in forma No. 52 at 10-14. However, he states that he could not afford pauperis status under 28 U.S.C. § 1915, such status does to hire a court reporter and that, in any event, there is no need not relieve him of the duty to pay his share of the cost of for one. Id. Rather, he proposes to record the depositions with discovery (or somehow shift that cost to either Defendants affords an inmate only certain benefits, namely, the right to forma pauperis application shall in no way relieve be able to “proceed” in a matter without prepaying certain the party of the obligation to pay all other fees “fees and costs.”8 These “fees and costs” do not include for which such party is responsible regarding such the costs of taking part in discovery. For example, a litigant action, including, but not limited to, copying and/or proceeding in forma pauperis does not have a right to a waiver witness fees.”); Smith v. Buffalo Bd. of Educ., 96- of (1) the cost of a deposition stenographer,9 (2) the daily CV-0229, 1997 WL 613255, at *2 (W.D.N.Y. Oct. attendance fee and mileage allowance that must be presented 2, 1997). to an opposing witness under Rule 45 of the Federal Rules of Accordingly, the Court finds that Plaintiff's belated request Civil Procedure,10 or (3) the copying cost of any deposition for discovery should be denied for each of the above-stated transcripts.11 reasons. 8 See 28 U.S.C. § 1915. F. Photograph of Plaintiff Taken upon Arrival at 9 Great Meadow See Benitez v. Choinski, 05-CV-0633, 2006 Plaintiff asks for a copy of his picture taken upon arrival at WL 276975, at *2 (D.Conn. Feb. 2, 2006); Great Meadow to demonstrate that he was wearing eyeglasses Tajeddini v. Gluch, 942 F.Supp. 772, 782 upon his arrival. Dkt. No. 52 at 15. Defendants oppose the (D.Conn.1996); Doe v. U.S., 112 F.R.D. 183, 185 request, indicating that Plaintiff has not demonstrated the (S.D.N.Y.1986); Toliver v. Community Action Com. need for or relevance of the photograph. Dkt. No. 56 at ¶ to Help Economy, Inc., 613 F.Supp. 1070, 1072 28. Plaintiff, however, states that the cuts that he received (S.D.N.Y.1985), aff'd without opinion, 800 F.2d in his temple area will be consistent with the shape of the 1128 (2d Cir.1986), cert. denied, 479 U.S. 863 glasses he was wearing, demonstrating that he was kicked (1986); Ebenhart v. Power, 309 F.Supp. 660, 661 on both sides of the head while lying face down. Dkt. (S.D.N.Y.1969). No. 52 at 15. In their response to the original discovery 10 See 28 U.S.C.1915(d) (“Witnesses shall attend as request, Defendants also asserted that any such photograph no in other cases....”); N.D.N.Y. L.R. 5.4(a) (“The longer exists because “[r]ecords reflecting inmate arrivals and granting of an in forma pauperis application shall internal inmate moves are discarded after three years.” Dkt. in no way relieve the party of the obligation to pay No. 57, Ex. E, ¶ 1. Since the Court cannot require a party to all other fees for which such party is responsible produce something that does not exist, this aspect of Plaintiff's regarding such action, including, but not limited to, motion is denied. copying and/or witness fees.”); Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir.1993) (affirming dismissal G. List of All Persons at Great Meadow on August 17, of complaint by Di Bianco, M.J ., N.D.N.Y.); 2000 Milton v. Buffalo Eng'g, P.C., 03-CV-0472, 2004 *5 Plaintiff asked for a list of all persons at Great Meadow WL 1179336, at *1 (W.D.N.Y. May 27, 2004); on the date of his arrival-August 17, 2000-for purposes Fridman v. City of New York, 195 F.Supp.2d 534, of identifying possible witnesses. Dkt. No. 52 at 16. The 535 (S.D.N.Y.2002); Smith v. Gracie Square Hosp., Court finds the request to be overly broad and agrees with 96-CV-1327, 1997 WL 698183, at *2 (S.D.N.Y. the Defendants that it constitutes a “fishing expedition.” Nov. 10, 1997); Malsh v. Police Dep't of City Plaintiff's motion is denied in this regard. See Messier v. of N. Y., 92-CV2973, 1995 WL 296735, at * 1 Southbury Training School, No. 3:94-CV-1706, 1998 WL (S.D.N.Y. May 16, 1995); Toliver v. Community 136170, at *6 (D.Conn. Jan. 30, 1998) (discovery “fishing Action Com. to Help Economy, Inc., 613 F.Supp. expedition[s]” are “disfavored by courts”) (citations omitted). 1070, 1072 (S.D.N.Y.1985), aff'd without opinion, 800 F.2d 1128 (2d Cir.1986), cert. denied, 479 U.S. 863 (1986); Gonzalez v. Fenner, 128 F.R.D. 606, III. SECOND MOTION TO COMPEL 607-608 (S.D.N.Y.1989). A. DOCS Directive 4943 of DOCS Directive 4943 (in effect on 8/17/00) which sets officers came from.” Dkt. No. 54 at 3-4. Because Plaintiff has forth guidelines for hand-held video-taping. Dkt. No. 54 at already been provided with a drawing of the area at which the 1. Defendants oppose the request, indicating that Plaintiff alleged incident occurred, see Dkt. No. 56 at Ex. B, and given never included such a request in his discovery materials. Dkt. the security concerns with releasing to an inmate the blueprint No. 56 at ¶ 38. Defendants also assert that “the directive of the entire facility, this request is denied. is labeled confidential for security reasons, and cannot be released to inmates absent a court order.” Id. Because of the confidential nature of the directive sought, and Plaintiff's D. Names and Addresses of Everyone at Great failure to establish how DOC's video-taping policies are Meadow on August 17, 2000, and Photographs of relevant to Plaintiff's underlying claims or likely to lead to the Everyone at Great Meadow on August 17, 2000 discovery of admissible evidence, this portion of Plaintiff's The Court finds these requests to be overly broad and motion is denied. constitute a “fishing expedition.” Plaintiff's motion is denied as to these requests. See Messier, 1998 WL 136170, at *6 (discovery “fishing expedition[s]” are “disfavored by courts”) B. DOCS Directive Relating to Pin-Pull Devices (citations omitted). Plaintiff asks for “the directives[,] ... dictates[,] and data on the pin pull device[,] its register[,] and [everything] that will show and prove that [,] once the correction officers involved E. Assistance in Serving Defendant Englese with in [the] incident pulled [the] pin [,] ... an alarm [indicating] Process that [an] officer [was] in distress went out and caused ... Plaintiff seeks assistance in locating or serving Defendant correction officers from all areas to converge/respond to [the] Englese with service of process. Dkt. No. 54 at 6. Plaintiff area in which [the] incident occurred.” Dkt. No. 54 at 3. indicates that Defendant Englese, a former Correctional Plaintiff indicates that he needs this information to show who Officer at Great Meadow, is retired. Id. Defendants oppose arrived at the location of the alleged incident and the speed of the request stating that the Attorney General's Office “does the response by the correction officers. Id. Defendants oppose not represent Mr. Englese and has no obligation to provide the request. Defendants presume that Plaintiff is referring to assistance to [Plaintiff's] prosecution of this lawsuit.” Dkt. the “pin” on radios carried by correction officers, which are No. 56 at ¶ 43. “pulled” to call for emergency assistance. Dkt. No. 56 at ¶ 39. Defendants argue that any information produced in response The Court acknowledges that Defendants perhaps have little to this request “is not material or necessary to any claim in or no obligation to assist Plaintiff with the prosecution plaintiff's Complaint. There is no allegation that the pin was of his lawsuit and appreciates that Defendants would be pulled in violation of his constitutional rights, and those who understandably hesitant to provide an incarcerated inmate responded are identified in the Unusual Incident Report which with the home address or any other similar personally has been provided.” Id. identifiable information regarding a past corrections worker. The Court also appreciates, however, the dilemma facing the While the Court is unable to determine, with complete clarity, Plaintiff, who for lack of the information now sought has been Plaintiff's need for copies of the directives requested, since unable to effectuate service of process upon that Defendant. Defendants provide little justification for not providing copies In order to balance these competing concerns, the Court will of such directives, this aspect of Plaintiff's motion is granted. request that the Attorney General, acting on behalf of the The Defendants are directed to, within 30 days, produce to DOCS, make an effort to contact F. Englese through any Plaintiff a copy of any DOCS Directives governing the use information available to that agency, and determine whether of emergency pull “pins” on correctional officer's radios as they will be permitted to waive service on behalf of the well as any Directives governing the response to receipt of an Defendant and appear on his or her behalf. The Attorney emergency call through the use of such “pins.” General is directed to contact the Court within thirty days of the date of this order and advise as to whether or not his office will be authorized to waive service and appear on behalf of C. Blueprints of the Prison that Defendant. In the event that such an authorization is not *6 Plaintiff requests blueprints of Great Meadow so that he forthcoming, the Court will consider appropriate alternatives service upon that Defendant by the United States Marshal's must serve supplemental responses and/or produce required Service. documents within THIRTY (30) DAYS of the filing date of this Order. ACCORDINGLY, it is All Citations ORDERED that Plaintiff's motions to compel (Dkt. Nos. 52 and 54) are GRANTED in part and DENIED in part, as Not Reported in F.Supp.2d, 2006 WL 2516485 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 9:03cv01010 — N.D.N.Y. Aug. 14, 2003 Docket MURRAY v. STATE OF NEW YORK, ET AL History (4)
Direct History (2) 1. Murray v. Palmer v= 2006 WL 2516485 , N.D.N.Y. , Aug. 29, 2006
Reconsideration Denied by 2. Murray v. Palmer 2007 WL 1237679 , N.D.N.Y. , Apr. 27, 2007
Related References (2) 3. Murray v. Palmer 2008 WL 2522324 , N.D.N.Y. , June 20, 2008
Pa 4. Murray v. Palmer 2010 WL 1235591 , N.D.N.Y. , Mar. 31, 2010
2021 WL 1853642 Facility (“Otsego County C.F.”)—the facility where Plaintiff Only the Westlaw citation is currently available. is currently confined but is a non-party to this action—to United States District Court, N.D. New York. transport Plaintiff to “an eye examination ... by an outside facility optometrist of my choosing.” (Dkt. No. 24 at 3.) James C. SITTS, Plaintiff, Plaintiff argues that he made multiple requests to see an v. outside eye doctor, but in response, “the medical staff ... has SIMMONDS; Cory Bene, Officer of Corrections; me see the facility doctor who is not an actual eye doctor and Biggar, Sergeant; and Goff, Corporal, Defendants. they have me read the eye chart and shine[ ] a light in my eye.” (Id. at 2.) Plaintiff seeks the outside examination “as 9:20-CV-1475 (TJM/ML) evidence of injury” in his case. (Id. at 1.) Plaintiff's motion | states no particulars regarding the doctor or facility he wants Signed 05/06/2021 to visit, or how he proposes to pay for the costs associated with transportation and the examination. Attorneys and Law Firms In response, Defendants argue that Plaintiff is not entitled to JAMES C. SITTS., Plaintiff, Pro Se, Otsego County shift the costs associated with being examined by an outside Correctional Facility, 172 County Hwy 33W, Cooperstown, doctor to a non-party. (Dkt. No. 26 at 2.) Defendants also New York 13326. note that Plaintiff admits that when he requested to see an eye OF COUNSEL: FRANK W. MILLER, THOMAS J. doctor, he was permitted to visit the medical staff at Otsego MURPHY, THE LAW FIRM OF FRANK W. MILLER, County C.F. and Delaware County Correctional Facility. (Id.) Counsel for Defendants, 6575 Kirkville Road, East Syracuse, New York 13057. The Court denies Plaintiff's motion for the following reasons. First, Plaintiff fails to demonstrate the reasons why he must visit an outside facility for an eye examination as opposed to having a doctor of his choosing come to Otsego County C.F. DECISION and ORDER to examine him. Second, Plaintiff's motion appears to request MIROSLAV LOVRIC, United States Magistrate Judge that the cost of his transportation and medical examination be assumed by a non-party to this case, Otsego County C.F. *1 Currently pending before the Court in this civil rights However, as the Court has already advised,2 that Plaintiff action filed by inmate James C. Sitts (“Plaintiff”), who is proceeds pro se and in forma pauperis does not relieve him proceeding pro se and in forma pauperis, is Plaintiff's Motion of the obligation to pay all costs and fees associated with to Compel. (Dkt. No. 24.) prosecuting his claims, including the costs associated with discovery of evidence. See Malik v. Lavalley, 994 F.2d 90, Plaintiff filed this matter on December 2, 2020, generally 90 (2d Cir. 1993) (“[F]ederal courts are not authorized to alleging Eighth Amendment claims against Simmonds, Bene, waive or pay witness fees on behalf of an in forma pauperis Biggar, and Goff (“Defendants”) relating to an incident that litigant.”); Koehl v. Greene, 06-CV-0478, 2007 WL 4299992, occurred at the Delaware County Correctional Facility while at *3 (N.D.N.Y. Dec. 6, 2007) (Lowe, M.J.) (“Although Plaintiff was confined there.1 (Dkt. No. 1.) The Court issued Plaintiff has been granted in forma pauperis status under a scheduling order on March 19, 2021 and set the close of 28 U.S.C. § 1915, such status does not relieve him of the discovery for September 20, 2021. (Dkt. No. 22 at 5.) duty to pay his share of the cost of discovery [ ]or somehow shift that cost to either Defendant or the Court[ ].”). In 1 On January 13, 2021, the Court dismissed addition, Plaintiff has not shown good cause, and the Court Delaware County Correctional Facility as a is unaware of any authority, that would justify shifting the Defendant. (Dkt. No. 8 at 10) On April 21, 2021, costs associated with a medical examination to a non-party. Plaintiff notified the Court that his new address was Indeed, courts are instructed to avoid imposing undue burden at the Otsego County Correctional Facility. (Dkt. or expense on non-parties. See, e.g., Bernier v. Koenigsmann, No. 25.) 17-CV-254, 2020 WL 1950873, at *4 (N.D.N.Y. Apr. 23, 2020) (Baxter, M.J.) (recognizing that, in the context of mindful of avoiding undue burden or expense on third is DENIED; and it is further parties.”) (citing Fed. R. Civ. P. 45(d)(1)). ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on Plaintiff, along with copies of 2 As Judge Thomas J. McAvoy stated in his January the unpublished decisions cited herein in accordance with the 13, 2021 Decision and Order granting Plaintiff's Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 request to proceed in forma pauperis, “Plaintiff (2d Cir. 2009) (per curiam). should note that, although his IFP application has been granted, he will still be required to pay fees that he may incur in this action, including copying IT IS SO ORDERED. and/or witness fees.” (Dkt. No. 8 at 9 n.4.) All Citations *2 WHEREFORE, it is hereby Not Reported in Fed. Supp., 2021 WL 1853642 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 9:20-CV-01475 — N.D.N.Y. Dec. 02, 2020 Docket Sitts v. Delaware County Correctional Facility et al Direct History (1) 1. Sitts v. Simmonds 2021 WL 1853642 , N.D.N.Y. , May 06, 2021 Related References (4) 2. Sitts v. Delaware County Correctional Facility 2021 WL 12157651 , N.D.N.Y. , Jan. 13, 2021 3. Sitts v. Simmonds 2021 WL 12157650 , N.D.N.Y. , Feb. 02, 2021 4. Sitts v. Simonds 2022 WL 2670213 , N.D.N.Y. , May 11, 2022 Report and Recommendation Adopted by
5. Sitts v. Simonds 2022 WL 2666909 , N.D.N.Y. , July 11, 2022 2022 WL 2666909 the evidence, Judge Lovric finds that questions of fact remain Only the Westlaw citation is currently available. as to whether Simonds and Bene used excessive force when United States District Court, N.D. New York. they used pepper spray and other methods to handcuff Plaintiff in his cell and whether Simonds unnecessarily James C. SITTS, Plaintiff, delayed medical treatment to Plaintiff after using pepper spray v. to subdue him. SIMONDS, Cory Bene, Officer of Corrections; Biggar, Sergeant, and Goff, Corporal, Defendants. Defendants filed objections to the Report-Recommendation. See dkt. # 50. When a party objects to a magistrate 9:20-CV-1475 (TJM/ML) judge's Report-Recommendation, the Court makes a “de novo | determination of those portions of the report or specified Signed July 11, 2022 proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1). After such a review, the Attorneys and Law Firms Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. James C. Sitts, Coxsackie, NY, Pro Se. The judge may also receive further evidence or recommit the Frank W. Miller, Thomas J. Murphy, The Law Firm of Frank matter to the magistrate judge with instructions.” Id. W. Miller, East Syracuse, NY, for Defendants. Having reviewed the record de novo and having considered the other issues raised in Defendants’ objections, this Court has determined to accept and adopt the recommendation DECISION & ORDER of Judge Lovric for the reasons stated in the Report- Thomas J. McAvoy, Senior United States District Judge Recommendation. Defendants’ objections ask the Court to accept their version of the events in question. Resolving *1 Plaintiff filed this action pursuant to 42 U.S.C. § factual disputes is the province of the jury. 1983, alleging that Defendants, Officers at the Delaware County Correctional Facility in Delhi, New York, violated It is therefore ORDERED that Plaintiff's objections to the his constitutional rights by using excessive force against him, Report-Recommendation of Magistrate Judge Lovric, dkt. # acting with deliberate indifference to a serious medical need, 50, are hereby OVERRULED. The Report-Recommendation, and retaliating against him for filing grievances. The Court dkt. # 49, is hereby ACCEPTED and ADOPTED. referred the matter to the Hon. Miroslav Lovric, United States Defendants’ motion for summary judgment, dkt. # 43, Magistrate Judge, for a Report-Recommendation pursuant to is hereby GRANTED IN PART and DENIED IN PART. 28 U.S.C. § 636(b) and Local Rule 72.3(c). The motion is GRANTED with respect to Plaintiff's First Amendment retaliation claim and DENIED with respect to: 1) The Report-Recommendation, dated May 11, 2022, Plaintiff's excessive force and failure to protect claims against recommends that the Court grant Defendants’ motion for Defendants Simonds and Bene and 2) Plaintiff's deliberate summary judgment in part and deny the motion in part. indifference claims against Defendant Simonds. See dkt. # 49. Judge Lovric recommends that the Court deny Defendants’ motion with respect to any excessive force and failure to protect claims against Defendants Simonds IT IS SO ORDERED. and Bene and any deliberate indifference to serious medical All Citations needs claims against Defendant Simonds. Judge Lovric also recommends that the Court grant the motion with respect to Not Reported in Fed. Supp., 2022 WL 2666909 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 9:20-CV-01475 — N.D.N.Y. Dec. 02, 2020 Docket Sitts v. Delaware County Correctional Facility et al Direct History (2) 1. Sitts v. Simonds 2022 WL 2670213 , N.D.N.Y. , May 11, 2022 Report and Recommendation Adopted by 2. Sitts v. Simonds 2022 WL 2666909 , N.D.N.Y. , July 11, 2022 Related References (3) 3. Sitts v. Delaware County Correctional Facility 2021 WL 12157651 , N.D.N.Y. , Jan. 13, 2021 4. Sitts v. Simmonds 2021 WL 12157650 , N.D.N.Y. , Feb. 02, 2021
5. Sitts v. Simmonds 2021 WL 1853642 , N.D.N.Y. , May 06, 2021