Gross v. Lunduski
2014 U.S. Dist. LEXIS 182239
W.D.N.Y.2014Background
- Plaintiff (prisoner) alleges that on Aug. 4, 2011 a corrections officer (Defendant) assaulted him — squeezing his genitals and striking his head — causing concussion, ruptured eardrum, and testicular injury; parties give sharply different accounts and no surveillance or other neutral eyewitnesses exist.
- Plaintiff sued under 42 U.S.C. § 1983 (Eighth/Fourteenth Amendment) and sought broad discovery including: defendant’s personnel file, DOCCS Inspector General (IG) files, inmate grievances coded as Staff Conduct, Use of Force/Unusual Incident Reports, the original audio of Plaintiff’s Tier II disciplinary hearing for enhancement, a to‑scale diagram/bench dimensions, depositions outside the prison, and defendant’s mental‑health records.
- Defendant (a DOCCS officer) resisted, arguing lack of possession/custody/control over agency records, irrelevance (especially of unsubstantiated complaints), undue burden/security concerns for IG/grievances, privilege over mental‑health records, and risk of damage if the original tape were released.
- The court conducted an in camera review of the personnel file, received declarations from DOCCS/IG officials, and held oral argument.
- The Magistrate Judge granted in part and denied in part Plaintiff’s motion to compel and denied parts of Defendant’s motion for a protective order, ordering production of limited personnel materials, IG files and related UIRs and Staff Conduct grievances (subject to limits and confidentiality), permitting controlled enhancement of the original hearing tape, compelling defendant either to produce or state nonexistence of mental‑health records, and directing depositions at the facility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Production of defendant’s personnel file | Relevant for impeachment/credibility; court should produce items affecting credibility | Privacy; limited relevance | Court reviewed in camera and ordered limited production (performance eval for 2011–12 and attendance memoranda) within 14 days. |
| Possession/custody/control of DOCCS records (IG files, grievances) | Defendant/AG has practical ability and history of obtaining DOCCS records; Rule 34 control exists | Defendant lacks physical possession/custody/control; DOCCS sovereign immunity; records are non‑party’s | Court found practical ability/control (close coordination, common interest via AG representation) and overruled threshold objection. |
| Relevance of prior/unsubstantiated complaints (IG files, grievances) | Prior/subsequent complaints (even unsubstantiated) may be probative of pattern, intent, modus operandi, and credibility; discoverable under Rule 26(b)(1) and Rule 404(b) | Only substantiated complaints should be discoverable; unsubstantiated claims are unlikely to lead to admissible evidence | Court held unsubstantiated complaints can be discoverable if similar and reasonably calculated to lead to admissible evidence; refused to adopt a blanket rule limiting discovery to substantiated complaints. |
| Burdensomeness of searching grievances and IG files | Plaintiff narrowed requests (Staff Conduct code; four‑year window) and offers counsel inspection; probative value justifies limited burden | DOCCS searches are onerous (grievances indexed by inmate name and many codes); would take excessive staff/time | Court found defendant’s burden showing generalized and insufficient; ordered production/inspection subject to confidentiality and proportional limits (four years for grievances, 10 years for IG as narrowed). |
| Access to original Tier II hearing audio and enhancement | Original should be made available to a qualified technician for non‑destructive enhancement to produce a clearer transcript useful for impeachment/refreshing recollection | Risk of damaging original; DOCCS transcript/copy sufficient; producing original unnecessary | Court granted conditioned access: enhancement allowed following expert protocol (backup copy, precautions); balancing probative value and low risk of damage favors Plaintiff. |
| Mental‑health records of defendant | Records may reveal propensity for violent/anger reactions or impeachment; defendant waived privilege by failing to serve a privilege log | Privileged, speculative, and not shown to exist; no privilege log supplied because records may not exist | Court found requests relevant, defendant failed to timely provide privilege log or deny records’ existence; ordered defendant either to produce records or file statement that none exist (privilege waived if records exist and no log). |
| Location of depositions of facility employees and defendant | Depositions should be outside the facility to avoid interruptions/undue influence; convenience for Plaintiff’s counsel | Security/logistical burden and staffing disruption for facility staff traveling offsite outweigh counsel’s inconvenience | Court granted defendant’s motion on location: depositions to be held at Five Points (noticed by Plaintiff at facility was improper to move offsite); allowed Plaintiff to suspend and renew motion if facility disruptions occur. |
| Attorneys’ fees sanction under Rule 37 | Plaintiff seeks fees for having to litigate compelled discovery given defendant’s unjustified refusals | Defendant did not respond substantively; claims were substantially justified | Court found Plaintiff’s request has a colorable basis given many unsupported objections; ordered Defendant to respond re: fees within specified time; further briefing to follow. |
Key Cases Cited
- Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130 (2d Cir. 2007) (Rule 34 production requires possession, custody, or control; practical ability to obtain documents can satisfy control)
- Huddleston v. United States, 485 U.S. 681 (U.S. 1988) (Rule 404(b) admissibility requires sufficient evidence that similar acts occurred; timing of acts (prior or subsequent) is not dispositive)
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (recognition of psychotherapist‑patient privilege under federal law)
- O'Neill v. Krzeminski, 839 F.2d 9 (2d Cir. 1988) (evidence of other excessive force incidents may be admissible to show pattern/intent in § 1983 cases)
- Berkovich v. Hicks, 922 F.2d 1018 (2d Cir. 1991) (trial court’s discretion in limiting discovery of prior complaints; exclusion may be harmless depending on facts)
- Benedetto v. United States, 571 F.2d 1246 (2d Cir. 1978) (trial court has broad discretion to admit evidence of similar misconduct that contradicts defendant’s testimony)
- Sigety v. Abrams, 632 F.2d 969 (2d Cir. 1980) (practical ability/control over documents is a fact question bearing on Rule 34 obligations)
- Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331 (N.D.N.Y. 2008) (responding party may satisfy Rule 34 by making files available for inspection rather than producing copies)
- Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 247 F.R.D. 198 (D.D.C. 2008) (responding party must conduct a reasonable search and, if unable to locate documents, so state)