United States District Court, D. Connecticut
OMNIBUS RULING ON PENDING MOTIONS [DOC. 39, 41, 42,
CHARLES S. HAIGHT, JR., SENIOR UNITED STATES JUDGE
se plaintiff, Andrew El-Massri, an inmate currently
incarcerated at the Garner Correctional Institution in
Newtown, Connecticut, has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 against the New Haven
Correctional Center ("NHCC"), where he was
previously detained, and seven of the facility's
employees in their individual and official capacities: Deputy
Warden Marmora, Lieutenant Cacioli, Lieutenant Lewis,
Lieutenant Williams, Officer Hebert, Officer McGivney, and
Nurse Goode (herein collectively "Defendants").
El-Massri has attempted to sue the Defendants for violating
his Eighth Amendment protection against cruel and unusual
punishment and seeks monetary, injunctive, and declaratory
relief. Doc. 1 (Complaint), at 8-9. After initial review, and
based on the Plaintiff's statements that he was a
"prisoner" during the events at issue, the Court
dismissed the claims against NHCC but permitted
El-Massri's Eighth Amendment claims against the
individual Defendants to proceed for excessive force, failure
to intervene against excessive force, deliberate indifference
to medical needs, and unconstitutional conditions of
confinement. See Doc. 9 ("Initial Review
Order"), at 23. The Defendants answered the complaint on
November 27, 2018. Doc. 14 ("Answer"). El-Massri
has filed the following motions, which are currently pending
before the Court: Motion Requesting More Sufficient Responses
to Requests for Admissions [Doc. 39], Motion to Appoint an
Expert Witness [Doc. 41], Motion to Amend the Complaint [Doc.
42], and Motion to Appoint Counsel [Doc. 49]. The Court
resolves the motions herein.
Motion for More Sufficient Responses to Requests for
Admissions [Doc. 39]
has filed a motion pursuant to Federal Rule of Civil
Procedure 36 requesting that the Court direct Defendant
Cacioli to provide more sufficient responses to
Plaintiff's requests for admissions. El-Massri contends
that Cacioli is "attempting to avoid responding to [his]
request[s] . . . in bad faith." Doc. 39, ¶ 4.
3, 2019, Cacioli gave the following responses to
El-Massri's Requested Admissions:
1. Admit or deny the authenticity or genuineness of Exhibits
E-1, [E-2], [and E-3].
ANSWER/RESPONSE: Neither Admit nor Deny. I cannot
verify the authenticity of a document you submitted.
2. Admit or deny the authenticity or genuineness of [the]
signature being yours on . . . Exhibits E-1 [and E-2].
ANSWER/RESPONSE: Neither Admit nor Deny. I
cannot verify the authenticity of a document
3. Admit or deny that you were trained and aware of facts and
directives in Exhibit E-3.
ANSWER/RESPONSE: Neither Admit nor Deny. I cannot
verify the authenticity of a document you submitted.
Doc. 39-1. Exhibit E-1 is a document entitled
"Supervisor Video Recording Review" dated November
26, 2015, which appears to be signed by Cacioli. Doc. 39-2
(Exhibit E-1), at 4. Exhibit E-2 consists of two "Use of
Force Report[s]" dated November 26, 2015, one of which
also appears to be signed by Cacioli. Doc. 39-2 (Exhibit
E-2), at 5-6. Exhibit E-3 is a copy of Department of
Correction ("DOC") Administrative Directive 6.9
which governs the "Collection and Retention of
Contraband and Physical Evidence." Doc. 39-3.
support of his motion, El-Massri contends that Cacioli can
admit or deny: the genuineness of a document under Rule
36(a)(2), whether the signature on Exhibits 1 and 2 is his
signature, and whether he was trained in the policies and
procedures outlined in DOC Administrative Directive 6.9.
Cacioli has not responded to the motion.
Standard of Review for Requests for Admissions
Rule of Civil Procedure 36(a)(1)(B) authorizes a party to
"serve on any other party a written request to admit . .
. the truth of any matters [falling within the proper scope
of discovery] . . . relating to . . . the genuineness of any
described documents." The party who requests the
admission "bears the burden of setting forth its
requests simply, directly, not vaguely or ambiguously, and in
such a manner that they can be answered with a simple admit
or deny without explanation, and in certain instances, permit
a qualification or explanation for purposes for
clarification." Dash v. Seagate Technology (US)
Holdings, Inc., No. CV-13-6329 (LDW) (AKT), 2015 WL
4257329, at *16 (E.D.N.Y. July 14, 2015) (quoting Henry
v. Champlain Enters., Inc., 212 F.R.D. 73, 77 (N.D.N.Y.
2003)). Moreover, "[i]f a matter is not admitted, the
answer must specifically deny it or state in detail why the
answering party cannot truthfully admit or deny it."
for admissions are not discovery tools in the traditional
sense. Brodeur v. McNamee, No. 3:02-CV-823
(NAM/DEP), 2005 WL 1774033, at *2 (N.D.N.Y. July 27, 2005).
"While discovery mechanisms such as requests for
document production, interrogatories, and depositions
typically seek to uncover information for use in pursuing or
defending against a litigated claim, requests for admissions
serve the distinctly different purpose of assisting the
parties and the court to narrow the factual issues to be
presented for determination in connection with such a claim,
either on motion or at trial." Id.
"Provided the demand is understandable and
straightforward, calls for relevant information, and does not
violate a recognized privilege, an objection to a request to
admit is improper." Woodward v. Holtzman, 329
F.R.D. 16, 26 (W.D.N.Y. 2018) (quoting Booth Oil Site
Administrative Grp. v. Safety-Kleen Corp., 194 F.R.D.
76, 80 (W.D.N.Y. 2000)).
36(a)(6) permits the requesting party, in this case
El-Massri, to move for a determination of the sufficiency of
an answer or objection to a request for an admission.
"Unless the court finds an objection justified, it must
order that an answer be served. On finding that an answer
does not comply with this rule, the court may order either
that the matter is admitted or that an amended answer be
served." Fed.R.Civ.P. 36(a)(6). "When assessing the
sufficiency of a party's responses, a court considers
whether the response meets the substance of the request and
whether any qualifications are demanded by, and made in, good
faith." Wiwa v. Royal Dutch Petroleum Co., No.
96-CIV-8386 (KMW) (HBP), 2009 WL 1457142, at *5 (S.D.N.Y. May
26, 2009). "On a Rule 36(a)(6) motion, '[t]he burden
is on the objecting party to persuade the court that there is
a justification for the objection.'" Freydl v.
Meringolo, No. 09-CIV-07196 (BSJ) (KNF), 2011 WL
2566079, at *2 (S.D.N.Y. June 16, 2011) (quoting 8B Charles
Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure § 2263 (3d ed. 2010)).
objection to the motion by Cacioli and/or an explanation for
his refusal to respond, the Court agrees that Cacioli has the
ability to admit or deny the authenticity of the
"Supervisor Video Recording Review" [E-1]and the
first of the two "Use of Force Reports" [E-2], both
of which list his name at the bottom as the DOC employee who
reviewed and/or prepared the documents. See Doc.
39-2, at 4-5. Cacioli has not explained why he cannot
authenticate these documents by comparing them to those on
file with the DOC or through some other means, nor has he
explained why he cannot indicate whether the signature next
to his name at the bottom of each document is, in fact, his
signature. Thus, the Court will direct Cacioli to file an
amended response to Requests for Admissions 1 and
the first two requests, Request Number 3 does not call upon
Cacioli to admit or deny the genuineness of a document but
rather seeks the discovery of information. Nevertheless, it
is not necessary that Cacioli respond to this request as it
is already established, and the Court takes judicial notice,
that all DOC employees are trained on Chapter 6 of the
Administrative Directives. See DOC Admin. Dir. 1.3,
§ 24 ("Training"). Therefore, to the extent
El-Massri seeks an order for a more sufficient response to
Request Number 3, his motion is DENIED.
Motion Requesting Court to Appoint an Expert Witness [Doc.
has filed a motion requesting the Court to appoint a medical
expert, specializing in dermatology, to testify about the
effects of using chemical mace on an individual without
proper decontamination. He contends that he is unable to pay
the fees of such an expert witness and that the Court should
do so because it previously granted him permission to proceed
in forma pauperis under 28 U.S.C. § 1915.
El-Massri misconstrues the scope of in forma
being granted in forma pauperis status under 28
U.S.C. § 1915 permits El-Massri to proceed with his case
without prepayment of filing fees and the responsibility to
effect service on the defendants, it "does not authorize
payment or advancement of discovery expenses by the
[C]ourt." Goode v. Faneuff, No. 3:04-CV-1524
(WWE) (HBF), 2006 WL 2401593, at *1 (D. Conn. Aug. 18, 2006).
The Court has no authority to finance El-Massri's
discovery expenses, including the costs of hiring an expert
witness, despite granting him permission to proceed in
forma pauperis. Id.; see also Candelaria v.
Coughlin, 133 F.3d 906 (2d Cir. 1997) (affirming
district court's denial of plaintiff's request to
"present expert medical testimony at the
government's expense" because "this Court has
established that 'federal courts are not authorized to
waive or pay witness fees on behalf of an in forma pauperis
litigant'") (quoting Malik v. Lavalley, 994
F.2d 90 (2d Cir.1993)); Benitez v. Choinski, No.
3:05-CV-633 (JCH) (HBF), 2006 WL 276975, at *2 (D. Conn. Feb.
2, 2006) (holding 28 U.S.C. § 1915 does not authorize
Court to pay for plaintiff's medical examination).
El-Massri is responsible for his own discovery expenses, and
therefore, his motion for the Court to appoint and finance an
expert witness is DENIED.
Motion for Leave to Amend Complaint [Doc. 42]
Court denied El-Massri's first motion for leave to amend
his complaint [Doc. 28] because, inter alia, he
failed to submit a proper memorandum of law in support of the
motion and a proposed amended complaint, in accordance with
Federal Rule of Civil Procedure 15 and District of
Connecticut Local Civil Rule 7(f). See Doc. 33
("Ruling on Plaintiff's Motion to Amend
Complaint"), at 4-6. In so ruling, the Court instructed
El-Massri to re-file his motion with the required attachments
no later than June 7, 2019. Id., at 6, 12. The Court
specifically stated that the proposed amended complaint
"must state all allegations and claims [El-Massri]
wishes to pursue in this action, including those which the
Court found plausible in its Initial Review Order
("IRO"), and any additional claims and/or
defendants he seeks to add." Id., at 12.
24, 2019, El-Massri filed his second motion for leave to
amend his complaint with a supporting memorandum of law and a
proposed amended complaint. The proposed amended complaint
seeks to: (1) add allegations and new claims against the
existing defendants and (2) add five new defendants to the
action: Warden Jose Feliciano, Deputy Warden John Doe (name
unknown), Officer Mazzonna, Officer Corley, and Officer
Harris. Doc. 42, at 5-11, 14-25. The Defendants have objected
to El-Massri's motion on the grounds that any amendment
to the complaint would run afoul of the three-year statute of
limitations, and the newly added defendants will be
prejudiced by the untimely amendment because they were not on
notice that they could have been brought in as defendants to
this action. Doc. 48 ("Defendant's Objection").
For the following reasons, the Court will GRANT in part and
DENY in part the motion to amend.
Standard for Leave to Amend - Rule 15, Fed. R. Civ. P., and
to Rule 15(a), Fed. R. Civ. P., a plaintiff may amend his
complaint once as a matter of course within twenty-one days
after service of the complaint or within twenty-one days
after service of a responsive pleading (i.e., answer
or motion to dismiss) or of a Rule 12(b), (e), or (f) motion,
whichever is earlier. See Fed. R. Civ. P.
15(a)(1)(A) and (B). See also, e.g., Baines v.
Pillai, No. 3:16-CV-01374 (CSH), 2017 WL 1375168, at *1
(D. Conn. Apr. 10, 2017); Taurus B, LLC v. Esserman,
No. 3:14-CV-715 CSH, 2014 WL 4494398, at *1 (D. Conn. Sept.
other cases, the plaintiff may amend his complaint only with
"the opposing party's written consent or the
court's leave," which should be "freely give[n]
when justice so requires." Fed.R.Civ.P. 15(a)(2).
"In the absence of any apparent or declared reason -
such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment,
futility of the amendment, etc. - the leave should, as the
rules require, be 'freely given.'" Foman v.
Davis, 371 U.S. 178, 182 (1962) (discussing Rule 15(a)).
"This relaxed standard applies with particular force to
pro se litigants." Pangburn v.
Culbertson, 200 F.3d 65, 70 (2d Cir. 1999).
determining what constitutes prejudice, the Court considers
whether the amendment would: "(i) require the opponent
to expend significant additional resources to conduct
discovery and prepare for trial; (ii) significantly delay the
resolution of the dispute; or (iii) prevent the plaintiff
from bringing a timely action in another jurisdiction."
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
Cir. 1993). "The longer the period of
unexplained delay, the less will be required of the non-
moving party in terms of a showing of prejudice."
Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47
(2d Cir. 1983)).
Standard for Reviewing Prisoner Civil Complaints Under 28
U.S.C. § 1915A
28 U.S.C. § 1915A, the Court must review a
prisoner's civil complaint and dismiss any portion that
"(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief."
See 28 U.S.C. § 1915A(b)(1)-(2). Although
highly detailed allegations are not required, the complaint
"must contain sufficient factual matter, accepted as
true, to 'state a claim that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S 544, 570 (2007)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
Court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678. The complaint must provide "more than the