Carlton v. Pearson

• Decision Date: 14 March 2019
• Docket Number: 1:16-CV-00680 EAW
• Parties: CORYDON CARLTON, Plaintiff, v. C.O. PEARSON, Prison Guard and Employee at Wende Correctional Facility, Defendant.
• Court: U.S. District Court — Western District of New York

CORYDON CARLTON, Plaintiff, v. C.O. PEARSON, Prison Guard and Employee at Wende Correctional Facility, Defendant.

1:16-CV-00680 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 14, 2019

DECISION & ORDER

INTRODUCTION

Plaintiff Corydon Carlton ("Plaintiff") filed this action on August 19, 2016, alleging violations of his civil rights. (Dkt. 1). Plaintiff alleges that defendant Correctional Officer Robert Pearson ("Defendant") failed to protect him from an assault by another inmate. Plaintiff filed his lawsuit on August 19, 2016 (Dkt. 1); discovery closed, at the latest, on December 22, 2017 (Dkt. 31); and on August 27, 2018, this Court scheduled a jury trial to commence on March 18, 2019 (Dkt. 48). The Court held a final pretrial conference on February 25, 2019, at which time the Court granted Plaintiff's oral motion to preclude Defendant's use of Plaintiff's and inmate Clifton Goring's ("Goring")¹ Tier III Hearing Transcripts (the "Transcripts") at trial, which were only recently produced to Plaintiff on or about February 11, 2019. (See Dkt. 61). On March 8, 2019, Defendant filed a motionfor reconsideration, requesting the Court reconsider its prior ruling and permit Defendant's use of the Transcripts at trial. (Dkt. 62).

For the reasons set forth below, Defendant's motion (Dkt. 62) is denied.

DISCUSSION

I. Legal Standard for Reconsideration

The Federal Rules of Civil Procedure do not recognize a motion for "reconsideration." See Lopez v. Goodman, No. 10-CV-6413 CJS, 2013 WL 5309747, at *1 (W.D.N.Y. Sept. 20, 2013) (citing Hamilton v. Williams, 147 F.3d 367, 371 n.10 (5th Cir. 1998)). "Since the Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration, such a motion may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b)." Hill v. Washburn, No. 08-CV-6285-CJS, 2013 WL 5962978, at *1 (W.D.N.Y. Nov. 7, 2013) (citing Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989)).

As noted by the Second Circuit Court of Appeals, "[t]he standard for granting a [motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice." Virgin Atl. Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotations and citations omitted). "With respect to the third of these criteria, tojustify review of a decision, the Court must 'have a clear conviction of error on a point [of law] that is certain to recur.'" Turner v. Vill. of Lakewood, No. 11-CV-211-A, 2013 WL 5437370, at *3-4 (W.D.N.Y. Sept. 27, 2013) (quoting United States. v. Adegbite, 877 F.2d 174, 178 (2d Cir. 1989)). "These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court." Boyde v. Osborne, No. 10-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 17, 2013) (quoting Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)).

II. Legal Standard for the Imposition of Sanctions

A district court has wide discretion to impose sanctions, including preclusion, where a party does not meet its discovery obligations. Reilly v. NatWest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999) ("Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses. . . ."), superseded by statute on other grounds as recognized by Hernandez v. Jrpac Inc., No. 14 Civ. 4176 (PAE), 2016 WL 3248493, at *35 (S.D.N.Y. June 9, 2016). If a party does not timely disclose Rule 26(a) information, the party generally is not permitted to use that information at trial, "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1); see also Middle Mkt. Fin. Corp. v. D'Orazio, No. 96 Civ. 8138(SWK)(HBP), 2002 WL 31108260, at *4 (S.D.N.Y. Sept. 23, 2002) ("The 'automatic sanction' for a violation of Rule 26(a) is preclusion."). The non-disclosing party bears the burden of demonstrating that its non-disclosure was substantially justified or harmless. Atkins v. County of Orange, 372 F. Supp. 2d 377, 395-96 (S.D.N.Y. 2005), aff'd, 248 F. App'x 232 (2d Cir. 2007).

III. The Court Declines to Reconsider its Prior Ruling to Preclude Defendant's Use of the Tier III Hearing Transcripts at Trial

Defendant acknowledges that the case management order issued by United States Magistrate Judge H. Kenneth Schroeder, Jr. "required that Defendant provide Plaintiff with copies of documents identified as part of [his] Rule 26 disclosures." (Dkt. 62-4 at 3; see Dkt. 15 at 1 ("Defendants shall . . . provide to [P]laintiff copies of any documents prepared by any employee of the State of New York in connection with the events from which the [P]laintiff's claims arose. . . .")); see also L.R. Civ. P. 5.2(f) (requiring filing of discovery material in pro se cases). Judge Schroeder's order also notified the parties of the potential for "sanctions in the event of failure to comply with any direction of this Court." (Dkt. 15 at 5); see Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) ("[A]ll litigants . . . have an obligation to comply with court orders, and failure to comply may result in sanctions. . . ." (quotation and citation omitted)).

In support of his motion, Defendant argues that his initial Rule 26 disclosures, filed on July 20, 2017, identified Plaintiff's and Goring's "Tier II" hearing transcripts as documents that "may exist" and which have been requested from the New York State Department of Corrections and Community Supervision ("DOCCS"). (See Dkt. 22 at 3; Dkt. 62-1 at ¶ 3).² On August 4, 2017, Defendant filed a supplemental Rule 26 disclosure, which included several previously identified documents, but did not produce the Transcripts. (Dkt. 62-1 at ¶ 4; see Dkt. 24). Defendant's counsel explained that theTranscripts were not received by his office "until sometime in September 2017," and were eventually "scanned on to [their] computer system on September 27, 2017." (Dkt. 62-1 at ¶ 4). However, Defendant's counsel apparently forgot to provide Plaintiff with copies of the Transcripts (see Dkt. 62-4 at 5), and it was only on February 11, 2019, that Defendant first produced copies of the Transcripts to Plaintiff along with Defendant's other pretrial submissions (Dkt. 62-1 at ¶ 6).

Courts in the Second Circuit apply a four-factor balancing test to determine whether preclusion of evidence is an appropriate sanction: 1) the party's explanation for failing to comply; 2) the importance of the evidence precluded; 3) the prejudice suffered by the opposing party; and 4) the possibility of a continuance. See Bausch & Lomb Inc., v. Vitamin Health, Inc., No. 13-CV-6498, 2016 WL 554848, at *1 (W.D.N.Y. Feb. 10, 2016) (citing Outley v. City of New York, 837 F.2d 587, 590-91 (2d Cir. 1988)); see also Softel, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997).

Defendant's explanation for his failure to comply with Judge Schroeder's case management order is rather underwhelming. According to Defendant's counsel's own declaration, counsel was in possession of the Transcripts before discovery was complete and over 16 months before they were tendered to Plaintiff. (See Dkt. 62-1 at ¶ 4). Counsel's only explanation for his noncompliance is that he forgot to produce the Transcripts due to an original delay in their receipt from DOCCS resulting from a "backlog of requests for inmate documents in connection with prisoner litigation." (Id.; see Dkt. 62-4 at 5). Indeed, counsel realized his error only just as he was preparing for trial. (Dkt. 62-1 at ¶ 6).

Defendant argues that because Rule 26 does not require a party to produce copies of the items disclosed, he fulfilled his obligations under the Federal Rules even if he did not comply with Judge Schroeder's order. (See Dkt. 62-4 at 3-4). While "[c]ourts have acknowledged that . . . [Rule 26(a)(1)(A)(ii)'s] 'duty to disclose is not synonymous with a duty to produce,'" Hayes v. Frontera Produce, Ltd., No. CIV.A. 12-588-BAJ, 2013 WL 6174799, at *1 (M.D. La. Nov. 20, 2013) (quoting Forbes v. 21st Century Ins. Co., 258 F.R.D. 335, 337 (D. Ariz. 2009)),³ significantly, Defendant also stated that he would update his disclosure and "produce documents following the expected receipt of any further documents from DOCCS." (See Dkt. 22 at 2 (emphasis added)); see generally Solis-Alarcon v. United States, 514 F. Supp. 2d 185, 189-90 (D.P.R. 2007) (holding that the defendants "voluntarily assumed the further duty to produce the initially disclosed documents" where they stated that "[t]hese documents shall be produced forthcoming"), aff'd, 662 F.3d 577 (1st Cir. 2011). In any event, "there is no question the court may, . . . under its inherent authority, sanction [the] failure to comply with court orders, . . . and for 'discovery abuses that may not be a technical violation of the discovery rules.'" Network Caching Tech., LLC v. Novell, Inc., No. C-01-2079 VRW, 2003 WL21699799, at *3 (N.D. Cal. Mar. 21, 2003) (quoting Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988)).

Defendant also argues that the Transcripts are important to his trial strategy because they support his position that "the fight between inmate Goring and Plaintiff did not result from a vendetta by Defendant against Plaintiff, as Plaintiff contends; rather, the cause of the fight was that Plaintiff owed Goring money and would not pay him." (Dkt. 62-4 at 5). However, while Defendant will not be able to...