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Harnage v. Barrone

United States District Court, D. Connecticut

August 11, 2017

JAMES A. HARNAGE
v.
S. BARRONE,

          RULING ON PENDING MOTIONS [DOC. ##75, 88, 89, 105]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are four motions filed by self-represented plaintiff James Harnage (“plaintiff”), two of which seek to compel responses to plaintiff's written discovery requests. [Doc. ##88, 89]. The third motion seeks permission to serve additional interrogatories on each of the 23 remaining defendants (“motion to expand discovery”).[1] [Doc. #75]. Plaintiff has filed a fourth motion seeking to “renew” his motions to compel and requesting oral argument on the motions to compel. [Doc. #105]. Defendants have filed a memorandum in opposition to plaintiff's motions to compel [Doc. #103], but have not filed an objection to plaintiff's motion to expand discovery. For the reasons articulated below, the Court: GRANTS, in part, and DENIES, in part, plaintiff's Motions to Compel [Doc. ##88, 89]; GRANTS, in part, and DENIES, in part, plaintiff's Motion to Expand Discovery [Doc. #75]; and DENIES plaintiff's Motion to Renew and For Oral Argument [Doc. #105].

         BACKGROUND

         Plaintiff brought this action pursuant to 42 U.S.C. §1983 alleging violation of his right to bodily privacy. See generally Doc. #1, Complaint. Specifically, plaintiff alleged that defendants violated his Fourth and Eighth Amendment rights by creating and enforcing a policy that prevents him from using a privacy sheet while using the toilet in his cell. See generally Id. Plaintiff also challenged the constitutionality of this policy. See generally Id. The claims have been narrowed substantially by a ruling on a motion to dismiss. See Doc. #63.

         The following allegations are derived from plaintiff's Complaint. See Doc. #1. At the time plaintiff filed the Complaint on July 6, 2015, and at all times during the incidents alleged, plaintiff was incarcerated at the MacDougall Correctional Institution in Suffield, Connecticut (hereinafter referred to as “MacDougall”). At MacDougall, defendant Murphy implemented a policy prohibiting inmates from hanging a privacy sheet while using the toilet.[2] Defendant Chapdelaine has maintained this policy and all other named defendants have enforced it. Only MacDougall and Walker Correctional Institutions, which are part of the same complex, have a policy prohibiting the use of privacy sheets.

         On August 13, 2012, defendant Maloid enforced the policy against plaintiff. On August 17, 2012, defendant Hall, a female, enforced the policy when she threatened plaintiff with disciplinary action for using a privacy sheet.

         On November 26, 2012, defendant Hall stood at plaintiff's cell door and ordered plaintiff to remove the privacy sheet, which he did while “naked” and with “fecal matter still clinging to him[.]” Doc. #1, Complaint at ¶32.

         On December 5, 2012, defendant Anderson, a female, enforced the policy when she made plaintiff “stand and expose himself” and remove the sheet while she watched. Id. at ¶37. On December 21, 2012, defendant Nolan made plaintiff stand and remove the sheet in the presence of plaintiff's then-cellmate, alleged to be a homosexual. The cellmate later commented on plaintiff's buttocks and genitals. At different times on December 23, 2012, defendants Taylor and Brito enforced the policy by making plaintiff remove the sheet.

         On February 6, 2013, and February 13, 2013, defendant Gonzalez, a female, enforced the policy when she made plaintiff remove the sheet while she watched and plaintiff was “completely exposed.” Id. at ¶40.

         On April 13, 2013, defendant Vamos #1 threatened plaintiff with disciplinary action for using the privacy sheet and made the plaintiff stand and remove the sheet while he watched. On April 16, 2013, defendant McCormack made plaintiff remove the sheet. On that same date, defendant VanOudenhave made plaintiff remove the sheet and threatened plaintiff with disciplinary action.

         On May 2, 2013, defendant Vamos #1 made plaintiff remove the sheet. On May 12, 2013, May 20, 2013, and May 22, 2013, defendant Allison threatened plaintiff with disciplinary action, and watched while plaintiff removed the sheet.

         On July 8, 2013, defendant Boyd made plaintiff remove the sheet. On July 14, 2013, defendant Roy made plaintiff remove the sheet. On August 18, 2013, defendant Kitt, a female, threatened plaintiff with disciplinary action and made plaintiff “stand naked and take down the sheet[.]” Doc. #1, Complaint at ¶47. On August 24, 2013, and on “multiple other occasions[, ]” defendant Vamos #2 threatened plaintiff with disciplinary action and made plaintiff “stand naked and take down the sheet.” Id. at ¶48.

         On October 8, 2013, defendant Houston threatened plaintiff with disciplinary action and made plaintiff “stand naked to take down the sheet.” Id. at ¶50. Defendant Houston continued to threaten plaintiff even after he removed the sheet.

         On June 12, 2014, July 3, 2014, and July 14, 2014, defendant Tyburski, a female, enforced the policy by making plaintiff remove the sheet and finish his bodily functions in view of his cellmate. On July 4, 2014, defendant Scott, a female, enforced the policy by making plaintiff remove the sheet and finish his bodily functions in front of his cellmate as she watched. On September 9, 2014, defendant Griffith, a female, enforced the policy by making plaintiff remove the sheet and finish his bodily functions in front of his cellmate as she watched.

         Plaintiff began to wait until his cellmate went to recreation to perform his bodily functions. As a result, plaintiff suffered persistent constipation. For seven months while plaintiff was housed in an expansion area at MacDougall plaintiff refers to as the “Green Mile, ” defendants refused to let plaintiff leave his cell to enjoy the remainder of his recreation period after he used the toilet.

         Plaintiff filed his Complaint on July 6, 2015. [Doc. #1]. An Initial Review Order issued on August 4, 2015. [Doc. #7]. On December 31, 2015, following several granted requests for extensions to respond to plaintiff's Complaint [Doc. ##39, 44, 46, 52], defendants filed a motion to dismiss plaintiff's Complaint. [Doc. #53]. Following a granted request for an extension of time [Doc. ##57, 58], on March 31, 2016, plaintiff filed an objection to the motion to dismiss, along with a supporting memorandum of law. [Doc. ##59, 60]. On August 24, 2016, Judge Thompson issued a Ruling granting defendants' motion to dismiss, in part. [Doc. #63]. Judge Thompson dismissed: any Fourth Amendment unreasonable search claims [see Id. at 8[3]; claims against female defendants Scott, Griffith, Kitt, Anderson, Hall, Gonzalez and Tyburski for violation of plaintiff's right to privacy by viewing him perform bodily functions [see Id. at 10]; any Fourth Amendment privacy claims against defendants VanOudenhave, Maloid, Nolan, Taylor, Brito, Vamos #1, Vamos#2, McCormack, Boyd, Roy, Allison and Houston for violation of plaintiff's right to privacy by viewing him perform bodily functions [see Id. at 10-11]; any Eighth Amendment claims relating to performing bodily functions in the presence of another inmate or a correctional officer [see Id. at 14]; any substantive due process claims [see Id. at 16]; and all claims against defendants DeMarco, McDaniels and Doe [see Id. at 22].[4]Judge Thompson has permitted plaintiff's Complaint to “proceed against the remaining defendants on the Fourth Amendment privacy claim regarding implementation and enforcement of the policy prohibiting use of a privacy sheet.” Id.

         DISCUSSION

         Plaintiff has filed two motions seeking to compel written discovery responses from defendants. [Doc. ##88, 89]. Plaintiff has also filed a motion to expand discovery, which, as now clarified by plaintiff, seeks permission to serve an additional 22 interrogatories on defendant Warden Chapdelaine. See Doc. ##75, 83. On March 2, 2017, Judge Thompson referred this matter to the undersigned for a status conference and a ruling on plaintiff's motion to expand discovery. [Doc. #79]. On March 20, 2017, the Court held an in-person discovery status conference. [Doc. ##80, 85, 86]. During this conference, plaintiff indicated that he wished to file a motion to compel directed to his written discovery requests served in September 2016. See Doc. #85 at 2. The Court set a deadline of April 17, 2017, for plaintiff to file any motions to compel directed towards his September 2016 written discovery requests. See id.[5] Plaintiff timely filed his motions to compel on March 28 and 29, 2017, respectively. [Doc. ##88, 89].[6] After two requested and granted extensions of time [Doc. ##92, 93, 100, 101], defendants filed their response to plaintiff's motions to compel on May 26, 2017. [Doc. #103]. On July 26, 2017, plaintiff filed a Motion to Renew and for Oral Argument as to the motions to compel. [Doc. #105]. Judge Thompson referred that motion to the undersigned on July 27, 2017. [Doc. #106].

         Because plaintiff proceeds in this matter as a self-represented party, the Court interprets his briefing “liberally” and reads his filings “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)). “Though a court need not act as an advocate for pro se litigants, in pro se cases there is a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done.” Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (internal quotation marks omitted) (quoting Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). Bearing this in mind, doings its best to glean from his submissions the discovery plaintiff seeks to obtain, the Court addresses each motion in turn.

         I. Legal Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). The advisory committee's notes to the recent amendment of Rule 26 further explain that

[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.

Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment. Nevertheless, “[t]he party resisting discovery bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).

         II. Motion to Compel Responses to Plaintiff's Interrogatories Directed to all the Named Defendants [Doc. #89]

         Plaintiff seeks to compel answers to his interrogatories dated August 25, 2016, which were directed to all defendants. [Doc. #89]. Plaintiff takes issue with the “boilerplate objections” asserted by defendants in response to the interrogatories. See Doc. #89 at 2-3. Defendants respond that the parties have met and conferred on several occasions, and that on March 24, 2017, in an effort to resolve the disputed requests, counsel for defendants hand-delivered to plaintiff “clarifications” of defendants' objections. See Doc. #103 at 2; see also Doc. #103-5.[7] Counsel for defendants represents that following these several meet and confers, the parties were able to resolve many of the disputes, but that plaintiff continues to seek additional responses to the following Interrogatories: 9, 13-16, 17(a)-(c), 19 and 21. See Doc. #103 at 2.

         a. Untimely Responses and Boilerplate Objections, Generally

         Before addressing the specific contested interrogatories, the Court turns first to plaintiff's arguments that defendants' answers to the interrogatories and responses to the requests for production were untimely, and that their objections are insufficient.

         Plaintiff contends that each of defendants' objections to the written discovery requests is waived because defendants did not serve their responses by November 14, 2016. See generally Doc. #89 at 1-4; Doc. #88 at 1-2. Plaintiff asserts that defendants received an extension of time to respond to plaintiff's written discovery requests only through November 14, 2016, and refers to the Order entered by Judge Thompson granting defendants' request for that extension of time. See Doc. #89 at 1-2; Doc. #88 at 1-2. However, plaintiff fails to acknowledge that defendants sought, and were granted, a second extension of time until December 14, 2016, to answer plaintiff's written discovery requests. See Doc. ##67, 68. Defendants' responses to plaintiff's discovery requests, which were served on December 7, 2016, and December 14, 2016, see Doc. #103-3, #103-4, were timely. Accordingly, defendants' objections are not waived as a result of untimeliness.

         Plaintiff next contends that defendants' objections are “boilerplate” and lack the specificity required by the Federal Rules of Civil Procedure. See Doc. #89 at 2, 4; Doc. #88 at 1-2. Defendants “disagree that their objections were deficient[, ]” but in an effort to resolve that specific issue, four days before plaintiff filed the motions to compel, defendants provided “clarifications” of the objections. Doc. #103 at 3; see also Doc. #103-5, #103-6 (defendants' clarifications of written discovery responses dated March 24, 2017). The Court will consider defendants' clarified objections in addressing each of the remaining written discovery requests at issue.

         b. Interrogatory 9

         Plaintiff seeks to compel answers to Interrogatory 9:

If you have ever been the subject of any civilian complaint or internal disciplinary proceeding having to do with alleged abuses of your powers as a correction officer, state as to each such proceeding: (a) The substance of any charges made against you in each such proceeding; (b) The name and address of each person who brought such charges; (c) The date and outcome of each such proceeding, including the date and nature of any subsequent disciplinary action against you, if any was taken.

Doc. #89 at 7. Defendants object: “This request does not pertain to relevant material and is outside the scope of rule 26(b)(1). Moreover, this request may implicate safety and security concerns to the extent that the plaintiff seeks personnel records.” Id.; see also Doc. #103-5 at 5. Defendants have clarified:

This request does not seek relevant or material information in that it is not limited to information regarding the policy prohibiting inmates from blocking a clear view into their cells. This request is also vague in that it does not define “civilian complaint.” Furthermore, there are also safety and security concerns to the extent that plaintiff seeks staff personnel records or records pertaining to other inmates.

Doc. #103-5 at 5. In addition to contending that defendants' objections are inadequate, plaintiff contends that the information sought is “perfectly within the ambit of discovery[, ]” and that “[d]iscovery rules require the pro se prisoner to be allowed to obtain information about the defendants and their prior records that may be relevant to their credibility and other issues, including pattern and practice or absence of mistake.” Doc. #89 at 7-8 (collecting cases). Defendants respond that the Court should deny plaintiff's request because plaintiff provides no explanation as to the relevance of the information sought, and the request is “far broader than merely seeking disciplinary records pertaining to dishonesty.” Doc. #103 at 5.

         As currently framed, Interrogatory 9 is overbroad as it is not limited in temporal scope and potentially seeks the identification of every complaint relating to “alleged abuses of power” made against each defendant since the beginning of time. Accordingly, the Court sustains, in part, defendants' objection to Interrogatory 9 on the grounds of relevance and over breadth. However, the Court will GRANT, in limited part, plaintiff's motion to compel as to Interrogatory 9.

         “[T]he great weight of the policy in favor of discovery in civil rights actions supplements the normal presumption in favor of broad discovery[.]” Nat'l Cong. for Puerto Rican Rights ex rel. Perez v. City of New York, 194 F.R.D. 88, 96 (S.D.N.Y. 2000) (internal quotation marks omitted) (quoting King v. Conde, 121 F.R.D. 180, 195 (E.D.N.Y. 1988)). Generally, in a section 1983 case such as this, “[d]isciplinary records involving complaints of a similar nature, whether substantiated or unsubstantiated, could lead to evidence that would be admissible at trial and thus, are discoverable.” Frails v. City of New York, 236 F.R.D. 116, 117-18 (E.D.N.Y. 2006) (alterations added) (compiling cases); see also Linares v. Mahunik, No. 9:05CV0625(GLS)(RFT), 2008 WL 2704895, at *3 (N.D.N.Y. July 7, 2008) (“To the extent other inmates' grievances or complaints allege conduct similar to that alleged in the Complaint, and were similarly directed against any of the named defendants, the documents sought may well yield information relevant to [plaintiff's] claims, and such documents are therefore discoverable.” (collecting cases)). Additionally, “[a] civil rights plaintiff is entitled to prove by extrinsic evidence that the defendant acted for the purpose of causing harm[] ... [and] where malicious, aggravated conduct is purportedly involved, reports of this conduct are admissible.” Lombardo v. Stone, No. 99CV4603(SAS), 2002 WL 113913, at *6 (S.D.N.Y. Jan. 29, 2002) (internal citations and quotation marks omitted).

         Thus, a limited subset of the information plaintiff seeks is relevant and discoverable. Accordingly, on or before September 15, 2017, each defendant shall answer Interrogatory 9 as limited by the Court: For the years 2012 through 2014, identify any grievance, complaint and/or disciplinary proceeding brought against you that relates to the enforcement of the MacDougall-Walker policy prohibiting inmates from hanging a privacy sheet while using the toilet, including the date and outcome of any identified grievance, complaint, or disciplinary proceeding.[8]

         To the extent defendants have any safety or security concerns, any such concerns may be alleviated by an appropriate protective order.

         c. Interrogatory 13

         Plaintiff seeks to compel answers to Interrogatory 13:

If you claim that you are entitled to qualified immunity in connection with any of the events alleged in the complaint, state exactly and completely: (a) Your entire basis for making such claim; (b) All physical evidence which might or could be introduced on your behalf in support of such claim; (c) Identify all witnesses who might or could be called to testify on your behalf in support of such claim.

Doc. #89 at 9. Defendants object on the grounds that this interrogatory calls for “legal analysis, ” see Id. at 9-10, and have clarified: “This request calls for legal analysis because ‘qualified immunity' is a special defense that requires inter alia legal research and ascertaining whether the defendants' alleged actions violated ‘clearly established law, ' as established by federal and state case law.” Doc. #103-5 at 7-8. Plaintiff, relying on Rule 33(a)(2), contends that he “is entitled to ask the defendants for an application of law to fact within their knowledge of their actions.” Doc. #89 at 10. Defendants respond that they “are current and former employees for the CT DOC and are not practicing attorneys; it would be unfair and prejudicial to require them to answer this request.” Doc. #103 at 5.

         Rule 33 of the Federal Rules of Civil Procedure governs the proper scope of interrogatories. See generally Fed.R.Civ.P. 33(a)(2). “An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Id. An interrogatory requesting such information is a “contention interrogatory” and is “a perfectly acceptable form of discovery[.]” Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 273 F.R.D. 367, 369 (S.D.N.Y. 2010) (citations omitted). “Such interrogatories ‘may ask another party to indicate what it contends, to state all the facts on which it bases its contentions, to state all the evidence on which it bases its contentions, or to explain how the law applies to the facts.'” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 233 (E.D.N.Y. 2007) (quoting McCarthy v. Paine Webber Group, Inc., 168 F.R.D. 448, 450 (D. Conn. 1996)).

         Interrogatory 13 requests each defendants' “basis” for his or her claim of qualified immunity, and for defendants to identify any witnesses or physical evidence which bear on such a defense. See Doc. #89 at 9-10. Interrogatory 13 is a “contention interrogatory” and therefore falls within the scope of a permissible interrogatory under Rule 33. See, e.g., Protex Int'l Corp. v. Vanguard Prod. Grp., Inc., No. 05CV5355(ADS)(ARL), 2006 WL 3827423, at *2 (E.D.N.Y. Dec. 27, 2006) (“[C]ontention interrogatories ask a party: to state what it contends; to state whether it makes a specific contention; to state all the facts upon which it bases a contention; to take a position, and to explain or defend that position, with respect to how the law applies to facts; or to state the legal or theoretical basis for a contention.” (citation and internal quotation marks omitted)).

         Accordingly, the Court overrules defendants' objections, and GRANTS, in part, plaintiff's motion to compel as to Interrogatory 13. On or before September 15, 2017, each defendant shall answer Interrogatory 13, rephrased as follows: If you claim that you are entitled to qualified immunity in connection with any of the events alleged in the Complaint, for which a claim currently remains, state with specificity all facts upon which you base that contention.[9]

         d. Interrogatory 14

         Plaintiff next seeks to compel answers to Interrogatory 14:

Identify any electronic or photographic record that was made of any part of any of the events alleged in the complaint or in your answers to the preceding interrogatories, identify the person or persons having present custody of such electronic or photographic record or recording and state the exact present location of each such photograph or recording.

Doc. #89 at 10. Defendants object: “This request does not pertain to relevant material and is outside the scope of Rule 26(b)(1). The allegations in the complaint contain more than 100 paragraphs, span over several years, and contain too many alleged incidents (many without dates) to respond to.” Id.; See also Doc. #103-5 at 8. Defendants have clarified: “Please see objection to request/clarification number 4. The information requested is not relevant in that it inter alia pertains to ‘electronic and photographic information' that pertains to the enforcement of a policy against non-party inmates spanning several years.” Id.[10] In support of this request, plaintiff points the Court to his “position statement” as to Interrogatories 2, 4, and 9. See Doc. #89 at 11. Defendants respond that they “have already indicated to the plaintiff that the facility has confirmed that there are no saved video recordings from the stationary cameras in the plaintiff's unit on the days of the alleged incidents[, ]” and further rest on their clarified objections. Doc. #103 at 5-6.

         Plaintiff's “position” as to Interrogatories 2 and 4 is that defendants assert “boilerplate” objections and have waived these objections as they were untimely. The Court rejects the waiver argument for reasons previously stated. See Section II.a., supra. The Court also rejects plaintiff's contention that defendants have asserted only boilerplate objections, in light of defendants' clarifications of their objections. Plaintiff's “position” as to Interrogatory 9 contends that the information sought is relevant, and that plaintiff should be allowed to obtain information relevant to defendants' credibility and other issues, including pattern and practice or absence of mistake. See Doc. #89 at 7-8 (collecting cases).

         As phrased, Interrogatory 14 is overbroad, not proportional to the needs to the case, and seeks irrelevant information. It potentially implicates every available photograph and video recording of the MacDougall facility from at least 2012 through 2016. Plaintiff fails to provide any explanation specific to this request regarding how the breadth of information sought is reasonably calculated to lead to the discovery of admissible evidence. The Court cannot see how such a request could lead to relevant information concerning the defendants' credibility. Moreover, defendants have represented that “there are no saved video recordings from the stationary cameras in the plaintiff's unit on the days of the alleged incidents.” Doc. #103 at 5-6.[11]The Court finds that defendants' narrowing of Interrogatory 14 is appropriate and proportional to the needs of this case. Accordingly, the Court sustains defendants' objections and DENIES, in part, plaintiff's motion to compel as to Interrogatory 14. However, on or before September 15, 2017, at least one defendant shall assert the representation regarding the existence of the stationary video recordings in a verified amended answer to Interrogatory 14. At least one defendant shall further indicate whether any other video recordings exist, such as by handheld cameras, which were taken of the plaintiff's unit on the days of the incidents alleged in the Complaint.

         e. Interrogatory 15

         Plaintiff seeks to compel answers to Interrogatory 15:

If you have ever been arrested and/or convicted of any crime whatsoever, identify by name and description the nature of each such offense, the date of which same occurred, and the location and disposition of any prosecution arising out any such arrest.

Doc. #89 at 11. Defendants object on the grounds that Interrogatory 15 “does not pertain to relevant material and is outside the scope of Rule 26(b)(1) and could jeopardize DOC's safety and ...


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