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Velasco v. Halpin

United States District Court, D. Connecticut

November 20, 2017

VICTOR JOSE VELASCO
v.
HALPIN, et al.

          RULING ON MOTIONS TO COMPEL [DOC. ##79, 90]

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

         Pending before the Court are two motions filed by plaintiff Victor Jose Velasco (“plaintiff”), seeking to compel discovery and a custodial affidavit from defendants, Lieutenant Halpin, Lieutenant Dougherty, Investigator Sweet, Counselor Damian Doran, and Acting District Administrator John Alves (“defendants”). [Doc. ##79, 90].[1] Defendants filed joint objections to plaintiff's motions to compel. [Doc. ##85, 90]. For the reasons articulated below, the Court: GRANTS in part, and DENIES, in part plaintiff's Motion to Compel Discovery regarding Document Request No. 6, [Doc. #79]; and GRANTS, in part, and DENIES, in part as moot, plaintiff's Motion to Compel a Custodial Affidavit, [Doc. #90].

         BACKGROUND

         Plaintiff brings this matter pursuant to 42 U.S.C. §1983 challenging disciplinary proceedings and his classification as a member of a security risk group safety threat (specifically, the Latin Kings).

         On October 13, 2017, plaintiff filed a motion seeking to compel defendants to produce additional documents in response to plaintiff's requests for production. See Doc. #79. Defendants filed an objection on October 26, 2017. See Doc. #85. On October 31, 2017, the Court held a Telephonic Status Conference regarding the issues raised in the motion to compel. During that conference, counsel for defendants represented that there are no materials responsive to Document Request No. 6 seeking “[t]he complete Department of Correction disciplinary records of each of the Defendants, including disciplinary reports.” Doc. #80-1 at 5. Specifically, counsel represented that none of the defendants had any disciplinary record at all, from 2010 to the present. However, after the conference, counsel for defendants notified the Court that materials had been found that are arguably responsive to request No. 6. The Court issued an Order requiring counsel for defendants to submit the materials to the Court for in camera review. See Doc. #87.

         On November 3, 2017, plaintiff filed a Motion to Compel a Custodial Affidavit that would: (1) Describe how the search for documents responsive to request No. 6 was performed; (2) explain how the determination was made whether documents were considered responsive; and (3) attest that all disciplinary records for each of the defendants has been produced to the plaintiff or the Court. See Doc. #90. at 4.

         In response, counsel for defendants submitted an affidavit from Dawn DiCesare, who conducted the search for responsive documents. See Doc. #95-2. In her affidavit, Ms. DiCesare states that she searched for responsive records in defendants' personnel files and the disciplinary log maintained by the Department of Corrections, and found no responsive documents. Id. at 2. After Ms. DiCesare reported that there were no responsive documents, a human resources staff member recalled a non-disciplinary resolution involving one of the defendants, and contacted her. Id. at 3. After discovering records of that matter, counsel for defendants submitted them for in camera review.

         DISCUSSION

         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 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).

         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. 9:05CV00625(GTS)(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).

         II. Motion for Order Compelling ...


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