United States District Court, D. Connecticut
JAMES A. HARNAGE
RULING ON PENDING MOTIONS [DOC. ##75, 88, 89,
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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”). [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
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.
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. 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.
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.
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
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.
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.
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
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.
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.
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.
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
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.
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; 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].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.
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. Plaintiff timely filed his
motions to compel on March 28 and 29, 2017, respectively.
[Doc. ##88, 89]. 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].
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.
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).
Motion to Compel Responses to Plaintiff's Interrogatories
Directed to all the Named Defendants [Doc. #89]
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. 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.
Untimely Responses and Boilerplate Objections,
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
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.
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.
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
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.
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.
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
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
extent defendants have any safety or security concerns, any
such concerns may be alleviated by an appropriate protective
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.
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.
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
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.
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. 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.
“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
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.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.
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
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 ...