United States District Court, D. Connecticut
RULING ON MOTIONS TO COMPEL [DOC. ##79, 90]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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,
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].
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).
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.
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.
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
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).
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
Motion for Order Compelling ...