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El-Massri v. New Haven Correctional Center

United States District Court, D. Connecticut

July 31, 2019





         Pro 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.


         A. Motion for More Sufficient Responses to Requests for Admissions [Doc. 39]

         El-Massri 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.

         On May 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 you submitted.
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."[1] Doc. 39-3.

         In 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.

         1. Standard of Review for Requests for Admissions

         Federal 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." Fed.R.Civ.P. 36(a)(4).

         Requests 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)).

         Rule 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)).

         2. Analysis

         Absent 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 2.[2]

         Unlike 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.

         B. Motion Requesting Court to Appoint an Expert Witness [Doc. 41]

         El-Massri 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 pauperis status.

         Although 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.

         C. Motion for Leave to Amend Complaint [Doc. 42]

         This 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.

         On May 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.

         1. Standard for Leave to Amend - Rule 15, Fed. R. Civ. P., and Foman

         Pursuant 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. 12, 2014).

         In all 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).

         In 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)).

         2. Standard for Reviewing Prisoner Civil Complaints Under 28 U.S.C. § 1915A

         Under 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)).[3] "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 unadorned, the-defendant-unlawfully-harmed-me ...

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