United States District Court, D. Connecticut
RULING ON MOTIONS TO COMPEL AND FOR SANCTIONS [ECF
Nos. 37, 43, 46] AND MOTION TO SEAL [ECF No. 42]
Michael P. Shea United States District Judge
plaintiff has filed a motion to compel and two motions
seeking sanctions relating to discovery in this case and the
defendants seek leave to file some of the exhibits to their
motion for summary judgment under seal.
Motion to Compel [ECF No. 37]
motion to compel, the plaintiff first states that in response
to his interrogatory addressed to DHO Richardson, the
defendants provided a statement from DHO Jaime Richardson.
The individual who submitted a waiver form in this case and
presided at the plaintiff's disciplinary hearing,
however, is DHO Bruce Richardson. The plaintiff states that
he informed defendants' counsel of this mistake on
November 24, 2016. In response to the motion to compel,
defendants' counsel represents that the interrogatory
response from Bruce Richardson would be provided by February
7, 2017. In light of this response, the motion to compel the
response is denied as moot regarding the interrogatory.
plaintiff also states in the motion to compel that, on
December 2, 2016, he viewed requested video footage but not
footage recording the plaintiff throwing his bag meal toward
Lieutenant Conger. This action resulted in the plaintiff
receiving a disciplinary charge for attempted assault. The
plaintiff states that this additional footage is important
for his claim that Lieutenant Conger spit in his sandwich. He
noted that in response to an interrogatory asking why he
personally served the plaintiff a meal with bologna
sandwiches which was different from the meal served to all
other inmates, defendant Conger denied ever serving the
plaintiff a meal. The plaintiff contends that the defendants
acted improperly in failing to retain the footage.
response, the defendants state that the plaintiff failed to
allege in his complaint that defendant Conger spit in his
sandwich. They also argue that the Court should deny
plaintiff's attempt to compel production of the video
footage from December 11, 2015. They assert that, although
familiar with procedures regarding preservation of video
footage, the plaintiff never requested that the December 11,
2015 footage be preserved, and that the DOC's practice is
to record over video at fixed intervals absent a timely
preservation request. The footage cannot now be produced. As
the footage no longer exists, the motion to compel its
production is denied.
Motion for Sanctions [ECF No. 43]
response to the defendants' objection to his motion to
compel, the plaintiff filed a motion for sanctions. He
contends that the defendants' actions have denied him
adequate discovery in this case.
allows the court to impose a variety of sanctions for
discovery-related abuses and affords the court “broad
discretion in fashioning an appropriate sanction.”
Residential Funding Corp. v. DeGeorge Fin. Corp.,
306 F.3d 99, 101 (2d Cir. 2002); see also Daval Steel
Products v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir.
1991) (“Provided that there is a clearly articulated
order of the court requiring specified discovery, the
district court has the authority to impose Rule 37(b)
sanctions for noncompliance with that order.”).
Sanctions include orders deeming certain facts established or
precluding the introduction of certain evidence, dismissing a
claim and entering an order of contempt. Valentini v.
Citicorp, Inc., No. 11 Civ. 1355(MF), 2013 WL 4407065,
at *2 (S.D.N.Y. Aug. 16, 2013).
deciding on the appropriate sanction, the court considers
“(1) the willfulness of the non-compliant party or the
reason for noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of the period of noncompliance[;]
and (4) whether the non-compliant party had been warned of
the consequences of … noncompliance.”
Id. at *4 (quoting Agiwal v. Mid Island Mortg.
Corp., 555 F.3d 298, 302-03 (2d Cir. 2009) (internal
quotation marks omitted). The court also considers whether
the moving party has been prejudiced by the non-compliance.
response to the defendants' statement that the plaintiff
failed to assert a claim that defendant Conger spit into his
sandwich in the complaint, the plaintiff submits a copy of
paragraph 30 of the complaint. In that paragraph, the
plaintiff alleges only that defendant Conger told the
plaintiff that he had spit in the sandwich. This paragraph is
included in Court One of the complaint, entitled Unreasonable
Force. In his second count, the plaintiff refers to the prior
count as relating to “assaultive excessive force
incidents.” Compl., ECF No. 1, ¶ 38. The plaintiff
does not assert a claim that he was subjected to
unconstitutional conditions of confinement. The Court
concludes that, although the statement is included in the
complaint, it is there merely as background describing the
incident that led to the application of restraints. Thus, the
defendants' statement that the plaintiff failed to assert
a separate claim that defendant Conger spit in his sandwich
plaintiff also contends that he requested preservation of the
video footage. As support, he attaches a copy of the notice
he Dated: December 2, 2016, after viewing the other
recordings. Next to his name, the plaintiff requested the
additional footage. This request, a year after the incident,
was too late. The plaintiff also attaches correspondence from
Deputy Warden Martin, dated November 2, 2015, stating that
footage of the restrictive housing unit on October 2, 2015,
could not be preserved due to time constraints. The
defendants note that this letter is irrelevant. The footage
the plaintiff seeks is from December 11, 2015, not October 2,
2015. The plaintiff presents no evidence that he made a
timely preservation request with respect to any footage from
December 11, 2015, and the tape no longer existed when the
plaintiff requested production of the footage in July 2016.
Thus, the Court will not sanction the defendants for failing
to produce the video footage.
Motions for Additional Sanctions [ECF No. 46] and Motion
to Seal [ECF No. 42]
conjunction with their motion for summary judgment, the
defendants have filed a motion to seal the video footage
exhibits. They state that the plaintiff has had an
opportunity to view all of the footage. The plaintiff asks
the Court to deny the motion until he can view all recordings
that he claims the defendants are intentionally withholding.
The plaintiff has articulated no basis for his allegations
that the ...