Frederick Smith v. C.O. S. Dodge, et al.

[[COURTLISTENER_SUBOPINION {"id":"11208343","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                                              
NORTHERN DISTRICT OF NEW YORK                                             
________________________________________                                  

FREDERICK SMITH,                                                          

               Plaintiff,                                            
                                        9:18-cv-1066                 
     v.                                 (MAD/TWD)                    

C.O. S. DODGE, et al.,                                                    

               Defendants.                                           
________________________________________                                  

APPEARANCES:                                                              

FREDERICK SMITH                                                           
Plaintiff, pro se                                                         
15-A-1771                                                                 
Green Haven Correctional Facility                                         
P.O. Box 4000                                                             
Stormville, NY 12582                                                      

HON. LETITIA JAMES                      KOSTAS LERIS, ESQ.                
New York State Attorney General         Assistant Attorney General        
Attorney for Defendants                                                   
The Capitol                                                               
Albany, NY 12224                                                          


THÉRÈSE WILEY DANCKS                                                      
United States Magistrate Judge                                            

                  DECISION and ORDER                                 
I.    INTRODUCTION                                                        
Presently before the Court in this prisoner civil rights action asserting claims pursuant to
42 U.S.C. § 1983
(“Section 1983”) is a motion to compel discovery brought by pro se Plaintiff 
Frederick Smith (“Plaintiff” or “Smith”).  Dkt. No. 172.  The Court has also considered 
Plaintiff’s Memorandum of Law, Dkt. No. 174, submitted in support of the motion to compel.  
Defendants oppose the motion.  Dkt. No. 179.  Also before the Court is Plaintiff’s letter motion, 
Dkt. No. 185, requesting reconsideration of this Court’s Decision and Order, Dkt. No. 184, 
which denied his motion to amend, Dkt. No. 154.  Defendants filed a response in opposition, 
Dkt. No. 186, to Plaintiff’s motion for reconsideration.  For the reasons that follow, and in the 

manner directed herein, Plaintiff’s motion to compel discovery, Dkt. No. 172, is granted, in 
limited part, and denied, in part.  Plaintiff’s letter motion for reconsideration, Dkt. No. 185, is 
denied.                                                                   
II.  PROCEDURAL BACKGROUND                                                
Plaintiff h commenced this action, through counsel, by filing a complaint asserting claims 
pursuant to Section 1983.  Dkt. No. 1.  The complaint asserted Eighth Amendment excessive 
force and failure-to-intervene claims against Defendants Dodge, Ashline, McNally, and Murray 
arising out of a use-of-force incident that occurred at Great Meadow Correctional Facility on 
September 9, 2015.  See
id.
On December 28, 2018, Plaintiff’s then counsel filed an amended complaint asserting the 

same claims against the same Defendants.  See Dkt. No. 13.  Following motion practice and an 
exhaustion hearing, Defendants filed an answer to Plaintiff’s amended complaint on May 1, 
2023.  See Dkt. No. 85.  On May 31, 2023, the Court issued a Uniform Pretrial Scheduling Order 
directing, among other things, that amended pleadings be filed by July 31, 2023, and discovery 
be completed by November 30, 2023.  See Dkt. No. 87.  Discovery ensued wherein Plaintiff’s 
then counsel served Defendants with Plaintiff’s First Request for Production of Documents 
(“RFP”) and Interrogatories.  Dkt. No. 179-2.  Defendants responded to the RFP on July 14, 
2023.  Dkt. No. 179-3.  On August 7, 2023, Defendants McNally and Murray responded to 
Plaintiff’s First set of Interrogatories and on August 11, 2023, Defendants Dodge and Ashline 
responded to Plaintiff’s Interrogatories.  Dkt. Nos. 179-4 through 179-7.  Plaintiff did not file a 
motion to compel or otherwise object to any of Defendants’ responses to Plaintiff’s demands. 
On August 11, 2023, the parties filed a Joint Status Report indicating, among other 
things, that discovery was proceeding and there were no issues that required Court intervention.  

See Dkt. No. 91.  On September 1, 2023, the fact discovery deadline was extended until 
November 14, 2023.  Dkt. No. 92.  On October 13, 2023, Plaintiff was deposed.  See Dkt. No. 
158-10.  Fact discovery was completed by November 14, 2023, and on that date, Plaintiff filed a 
motion for sanctions against Defendants for allegedly spoliating an escort video, which was later 
denied.  Dkt. Nos. 98, 124.  Plaintiff did not dispute or challenge any other responses served by 
Defendants to Plaintiff’s demands.
Id.
On January 22, 2024, the Court issued a Text Order 
extending the expert discovery deadlines, but did not extend any other deadlines.  See Dkt. No. 
106.                                                                      
On March 6, 2024, Plaintiff’s counsel filed a motion to withdraw as attorney for Plaintiff.  
Dkt. No. 113.  By Decision and Order entered on August 1, 2024, the Court granted the motion.  

Dkt. No. 125.  In that Decision and Order, the Court extended the expert discovery deadlines and 
ordered that all remaining discovery be completed by September 30, 2024.  See
id.
On 
September 5, 2024, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”).  See 
Dkt. No. 127.  By Text Order entered on September 9, 2024, the Court granted Plaintiff’s request 
to proceed IFP, and stayed the remaining deadlines until Plaintiff could receive a copy of his 
case file from his former counsel.  Dkt. No. 129.                         
On November 6, 2024, the Court issued a Text Order lifting the stay.  Dkt. No. 139.  On 
December 9, 2024, the Court held a telephonic conference and reset the remaining overall 
discovery deadline to March 14, 2025.  Dkt. No. 147.  At that conference, the Court directed that 
discovery be complete by March 14, 2025, and, upon Plaintiff’s request, permitted Plaintiff to 
file a motion to amend the operative amended complaint.
Id.
Thereafter, Plaintiff filed the 
motion to amend, Dkt. No. 148, an amended motion to amend, Dkt. No. 150, and then a 
“correct” amended motion to amend.  Dkt. Nos. 154, 154-1.  Defendants opposed the motion to 

amend, Dkt. No. 158, and the Court ultimately issued a Decision and Order denying the motion 
to amend.  Dkt. No. 184.  Plaintiff then filed the letter motion currently before the Court 
requesting reconsideration of the denial of his motion to amend.  Dkt. No. 185. 
While the motion to amend was pending, Plaintiff served supplemental discovery 
demands on Defendants by letter dated March 6, 2025.  Dkt. No. 179-8.  Although these 
supplemental demands were not served in a timely fashion before the close of discovery, see 
N.D.N.Y. Local Rule 16.2, and they were served well after the close of fact discovery, Dkt No. 
92, Defendants responded to the demands on April 10, 2025, by providing additional documents 
and asserting objections.  See Dkt. No. 179-9.  On May 23, 2025, Plaintiff filed the motion to 
compel presently before the Court.  Dkt. No. 172.  On June 20, 2025, Defendants served 

supplemental responses, Dkt. No. 179-10, to Plaintiff’s March 6, 2025, demands.  While the 
motion to compel was pending, the Court issued its Decision and Order, Dkt. No. 184, denying 
Plaintiff’s motion to amend.  Dkt. No. 154.  Thereafter, Plaintiff timely filed a letter motion 
requesting reconsideration of the motion to amend.  Dkt. No. 185.         
The Court will address the pending motion to compel, Dkt. No. 172, and the pending 
letter motion for reconsideration, Dkt. No. 185, separately as set forth below. 
III.  PLAINTIFF’S MOTION TO COMPEL                                        
A.   Plaintiff’s Document Requests                                   
Plaintiff seeks an order compelling Defendants to provide documents in the following 
categories: (1) Defendants’ personnel and disciplinary files; (2) all Use of Force and Unusual 
Incident Reports the Defendants prepared from 2009-2024, and all Code 49 grievances filed 
against Defendants; (3) all files kept by DOCCS Inspector General (“IG”) of the Office of 
Special Investigations (“OSI”) related to investigations into Defendants, and DOCCS Bureau of 

Labor Relations (“BLR”) disciplinary files for Defendants; (4) all misbehavior reports 
Defendants authored from 2009-2024; (5) a list of all civil lawsuits in which Defendants were 
named as filed by incarcerated individuals, along with the Use of Force and misbehavior reports 
related to those lawsuits; (6) Defendants’ mental health treatment and counseling records; (7) the 
motion papers Plaintiff submitted in support of his Article 78 proceeding; (8) Plaintiff’s mental 
health progress notes from 2015-2025; (9) Plaintiff’s ambulatory health records from 2015-2025; 
(10) Police Officer Sukeen’s statement maintained at the Dutchess City Courthouse; (11) 
Defendants’ medical records from September 9, 2015; (12) OSI Investigator Brian Irwin’s 
written statement dated September 9, 2015, and his final determination related to Plaintiff’s 
claims in this action; and (13) addresses for 40 non-party witnesses Plaintiff previously 

requested.  See generally Dkt. Nos. 172, 174.                             
Plaintiff also seeks an order to compel the Office of the Attorney General (“OAG”) to 
accept Plaintiff’s written deposition questions to non-party individuals, and mail their responses 
back to Plaintiff.  See Dkt. No. 174 at 17-20.1  Plaintiff also requests that DOCCS appoint a 
stenographer to take the depositions and administer the oath to the non-party individuals.
Id.
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the 
Court’s electronic filing system.  Where the submissions set forth consecutively numbered 
paragraphs, the Court will refer to the specific numbered paragraph.  Unless otherwise indicated, 
excerpts from the record are produced exactly as they appear in the original and errors in 
spelling, punctuation, and grammar have not been corrected.               
B.   Legal Standard                                                  
Rule 26(b) 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).                                                 
Information is relevant if: “(a) it has any tendency to make a fact more or less probable 
than it would be without the evidence; and (b) the fact is of consequence in determining the 
action.”  Fed. R. Evid. 401.  Relevance is a matter of degree, and the standard is applied more 
liberally in discovery than it is at trial.  Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., No. 13 
Civ. 1654 (RA)(HBP),
2014 WL 5420225
, at *7 (S.D.N.Y. Oct. 24, 2014) (“‘[I]t is well 
established that relevance for the purpose of discovery is broader in scope than relevance for the 
purpose of the trial itself.’”) (brackets in original) (quoting Arch Assocs., Inc. v. HuAmerica Int’l, 
Inc., No. 93 Civ. 2168 (PKL),
1994 WL 30487
, at *1 (S.D.N.Y. Jan. 28, 1994)); see Degulis v. 
LXR Biotechnology, Inc.,
176 F.R.D. 123, 125
(S.D.N.Y. 1997); Quaker Chair Corp. v. Litton 
Bus. Sys., Inc.,
71 F.R.D. 527, 530-31
(S.D.N.Y. 1976).                   
Though the burden of demonstrating relevance is on the party seeking discovery, see 
Mandell v. Maxon Co., No. 06 Civ. 460 (RWS),
2007 WL 3022552
, at *1 (S.D.N.Y. Oct. 16, 
2007), if a party objects to discovery requests, that party bears the burden of showing why 
discovery should be denied.  Financial Guar. Ins. Co. v. Putnam Advisory Co., LLC,
314 F.R.D. 
85, 87-88
(S.D.N.Y. 2016).  Federal district courts have broad discretion in deciding discovery 
disputes.  See Grand Cent. P’ship. Inc. v. Cuomo,
166 F.3d 473, 488
(2d Cir. 1999). 
As the advisory committee notes, the proportionality factors have been restored to their 
former position in the subsection “defining scope of discovery,” where they had been located 

prior to the 1993 amendments to the rules.  Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 
2015 amendment.  The amended rule is intended to “encourage judges to be more aggressive in 
identifying and discouraging discovery overuse” by emphasizing the need to analyze 
proportionality before ordering production of information.
Id.
The advisory committee’s notes 
further explain that “[a] party claiming that a request is important to resolve the issues should be 
able to explain the ways in which the underlying information bears on the issues as that party 
understands them.  The court’s responsibility, using all the information  provided by the parties, 
is to consider these and all other factors in reaching a case-specific determination of the 
appropriate scope of discovery.”
Id.
C.   Analysis                                                        

As an initial matter, the Court notes the discovery deadlines have been repeatedly 
extended in this matter.  Dkt. Nos. 87, 92, 94, 106, 112, 139, 141, 147, 153, 162, and 164.  
Despite this, Plaintiff’s further demands at issue in this motion to compel were not served in a 
timely fashion because they were served less than 30 days before the close of the discovery 
deadline in place at the time.  See Dkt. No. 179-8; see also Dkt. No. 147 (resetting discovery 
deadline to 3/14/2025); see also N.D.N.Y. L.R. 16.2 (discovery demands must be served 
sufficiently in advance of discovery cut-off date).  This tardiness in Plaintiff’s service of 
demands alone is sufficient reason to deny the motion since Plaintiff has not shown good cause 
for the late service of demands.2  Nevertheless, Defendants responded to the demands, and the 
Court further extended discovery deadlines.  Dkt. Nos. 162, 164.  Hence, the Court permitted 
Plaintiff to file the motion to compel presently before the Court.  Dkt. Nos. 166, 170. 
     1.  Requests for Civil Lawsuits Against Defendants; Plaintiff’s Medical  
     and Mental Health Records; Plaintiff’s Motion Papers for his Article 78  
     Proceeding; Non-Party Officer Sukeen’s Statement for Dutchess City Court;  
     40 Non-Party Witnesses’ Addresses                               
Defendants aver they have provided supplemental responses to Plaintiff’s requests for 
civil lawsuits naming Defendants, the Article 78 motion papers, Plaintiff’s medical records, and 
the names and addresses for the non-party witnesses Defendants could identify.  Dkt. No. 179-12 
at 6-7; see also Dkt. No. 179-9.  Defendants also state they responded to Plaintiff’s request for 
mental health records by noting they do not possess the records.  Id. at 7; see also Dkt. No. 179-
9, ¶ 8.  However, Defendants provided Plaintiff with a HIPAA compliant authorization to be 
signed and returned so that Defendants could request the records from the New York State Office 
of Mental Health (“OMH”) and then provide any records received pursuant to the authorization 
to Plaintiff.  Id.  Defendants also responded to the request for the non-party officer’s statement 
for Dutchess City Court by indicating they did not have that information.  Id.; see also Dkt. No. 
179-9, ¶ 10.                                                              



2 District courts have broad discretion to direct and manage the pre-trial discovery process.  Wills 
v. Amerada Hess Corp.,
379 F.3d 32, 41
(2d Cir. 2004).  The timing of discovery may be 
addressed by court order.  See generally Fed. R. Civ. P. 26.  Moreover, pursuant to Rule 16 of the 
Federal Rules of Civil Procedure, the Court has explicit discretion in discovery matters and may 
consider and take appropriate action, such as “controlling and scheduling discovery, including 
orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37.”  Fed. R. Civ. 
P. 16 (c)(2)(F).  Additionally, Local Rule 16.1(f) provides that “The Court shall strictly enforce 
any deadlines that it establishes in any case management order, and the Court shall not modify 
these, . . . except upon a showing of good cause.”  N.D.N.Y. L.R. 16.1(f). 
A party is not obligated to produce documents that it does not possess or cannot obtain.  
Fed. R. Civ. P. 34(a)(1) (“A party may serve on any other party a request . . . to produce . . . 
[documents] . . . in the responding party’s possession, custody or control . . . .”) (emphasis 
supplied).  “Under this rule, ‘production may be required’ where ‘a party has access and the 

practical ability to obtain documents not available to the party seeking them.’”  Hart v. Suffolk 
Cnty., No. 17-CV-05067 (LGD),
2023 WL 5720075
, at *6 (E.D.N.Y. Sept. 5, 2023)  
(citing Shcherbakovskiy v. Da Capo Al Fine, Ltd.,
490 F.3d 130, 138
(2d Cir. 2007)), aff’d, No. 
23-7269,
2025 WL 1374984
(2d Cir. May 13, 2025).  Here, Defendants indicated they do not 
have possession of documents regarding the statement of a non-party police officer maintained at 
the Dutchess City Courthouse.  Dkt. No. 179-9, ¶ 10.  Thus, Defendants have responded to this 
request and no further response is required.  McMillan v. Cnty. of Cortland, No. 9:04-CV-0827 
(PAM/GHL),
2008 WL 4283379
, at *1 (N.D.N.Y. Sept. 16, 2008) (A party “cannot be compelled 
to produce documents they do not have.”).                                 
While Defendants also indicated they do not have Plaintiff’s mental health records 

maintained at OMH, Defendants, to assist Plaintiff in obtaining those records, requested a 
HIPAA compliant authorization from him so Defendants can request the records and produce 
them to Plaintiff.  Dkt. No. 179-9, ¶ 8.  Accordingly, Defendants have responded appropriately to 
this request and no further response is required.  See, e.g., Signify Holding B.V. v. TP-Link Rsch. 
Am. Corp., No. 21-CV-9472,
2022 WL 3704001
, at *2 (S.D.N.Y. Aug. 26, 2022) (“Courts in the 
Second Circuit follow the so-called ‘practical ability’ standard; that is, a party has ‘possession, 
custody, or control’ over a document if it has the practical ability to obtain and produce the 
documents.” (collecting cases)).                                          
The Court agrees with Defendants that Plaintiff’s request for Defendants’ counsel to 
assist him with contacting approximately 40 non-party individuals who may be witnesses is 
improper.  Dkt. No. 179-9, ¶ 2.  Even so, Defendants provided the names and addresses for the 
non-party witnesses Defendants could identify.  Dkt. No. 179-1.  Therefore, no further response 

is required.  Similarly, since Defendants provided information in their possession regarding 
Plaintiff’s requests for civil lawsuits naming Defendants, the Article 78 motion papers, and 
Plaintiff’s medical records, Dkt. No. 179-9, ¶¶ 3, 5, and 9, no further response is required.  See, 
e.g., Stinson v. City of New York, No. 10 Civ. 4228,
2015 WL 4610422
, at *3 (S.D.N.Y. July 23, 
2015) (denying motion to compel where nonmovants agreed to provide the requested discovery). 
     2.  Use of Force, Unusual Incident Reports, and Misbehavior Reports   
     Defendants Prepared from 2009-2024; and Code 49 Grievances Filed Against 
     Defendants                                                      

Plaintiff seeks Use of Force, Unusual Incident Reports, and Misbehavior Reports 
prepared by Defendants for the 15-year period of 2009-2024, along with grievances related to the 
use of force filed against Defendants for that same time period.  Dkt. No. 179-9, ¶¶ 4, 7; see also 
Dkt. No. 174 at 9-12.  In response, Defendants submitted a Declaration from DOCCS Associate 
Counsel, Marat Shkolnik, who states that disclosure of such information presents significant 
safety and security concerns for the non-party incarcerated individuals and the DOCCS staff 
involved.  Dkt. No. 179-11, ¶¶ 11, 12.  Moreover, these records are indexed according to the 
names of the incarcerated individuals involved, rather than by the names of the DOCCS staff 
members involved.
Id. ¶¶14-17, 22-26
.  Thus, requiring Defendants to conduct a search for such 
records encompassing a period of 15 years would be overly burdensome, time-consuming, and 
not proportional to the needs of the case.  See Fed. R. Civ. P. 26(b).    
Because of the security implications if these documents were to be produced, the unduly 
burdensome nature of searching for and producing 15 years of records which are not catalogued 
by the names of DOCCS staff involved, and the lack of proportionality to the needs of the case, 
Plaintiff’s request for these documents is denied.  See Diaz v. Goord, No. 04-CV-6094CJS,
2007 

WL 2815735
, at *1 (W.D.N.Y. Sept. 25, 2007) (denying as overbroad and unduly burdensome a 
request for all grievances, complaints, and lawsuits without reference to subject matter or date of 
filing, given that the Department of Correctional Services (now known as DOCCS) does not 
index grievances, complaints, and lawsuits according to the name of the corrections officer 
named, but does so by the name of the complaining inmate); Ashford v. Goord, No. 07-CV-191,
2009 WL 2086838
, at *4 (W.D.N.Y. July 10, 2009) (request seeking all grievances and 
complaints filed against defendants was overly broad); Melendez v. Falls, No. 06-CV-6198CJS,
2010 WL 811337
, at *4 (W.D.N.Y. Mar. 3, 2010) (same).                     
     3.  Defendants’ Personnel Files                                 
Plaintiff seeks Defendants’ personnel files.  Dkt. No. 174 at 10.  Once again, Defendants 

have asserted concern for security interests in disclosing such files to incarcerated individuals 
such as the Plaintiff.  Dkt. No. 179-11, ¶¶ 6-9.  Defendants also argue that because of these 
security interests, DOCCS employee personnel files are not provided directly to incarcerated 
individuals.  Dkt. No. 179-12 at 8 (citing Woodward v. Ali, No. 13-CV-1304,
2018 WL 1037003
, 
at *2 (N.D.N.Y. Jan. 25, 2018)) (other citation omitted).  Accordingly, the Court hereby directs 
Defendants to produce for an in camera review only those portions of Defendants’ personnel 
files containing any disciplinary records of substantiated and unsubstantiated excessive force 
incidents from September 1, 2010, to September 30, 2020.  Counsel shall submit this information 
to the Court by December 8, 2025.  If no such disciplinary records exist for substantiated and 
unsubstantiated excessive force incidents, Defendants shall provide an affirmation under penalty 
of perjury from DOCCS personnel that conducted the search for the records which provides a 
description of the search and indicates that no such disciplinary records exist.  Defendants shall 
serve that affirmation on Plaintiff by December 8, 2025, and file it with the Court on that same 

date.  If documents are submitted for an in camera review, the Court will make further directives 
after its review is completed.                                            
     4.  Files from OSI/IG and BLR                                   
Plaintiff requests all files kept by DOCCS IG and the OSI related to investigations into 
Defendants, as well as disciplinary files on Defendants maintained by DOCCS BLR.  Defendants 
argue these demands are improper because they are, among other things, not limited in any way, 
they seek irrelevant information that is not proportional to the needs of the case, the Defendants 
were not disciplined, and such records may contain information related to non-parties.  Dkt. No. 
179-12 at 9.  Further, Defendants argue that disclosure of any such information to an 
incarcerated individual presents legitimate security concerns.  Dkt. No. 179-11, ¶¶ 33-42.   

For the same reasons set forth above regarding Defendants’ personnel files, Defendants 
are directed to produce for an in camera review any reports of substantiated and unsubstantiated 
excessive force incidents from September 1, 2010, to September 30, 2020, regarding Defendants 
maintained by DOCCS IG, DOCCS BLR, and/or the OSI.  Such information shall include OSI 
Investigator Irwin’s statement dated September 9, 2015, and his final determination related to 
Plaintiff’s claims to the extent such information exists.  Counsel shall submit this information to 
the Court by December 8, 2025.  If no such records exist pertaining to Defendants for 
substantiated and unsubstantiated excessive force incidents, Defendants shall provide an 
affirmation under penalty of perjury from the DOCCS personnel who conducted the search for 
the records which provides a description of the search and indicates that no such disciplinary 
records exist.  Defendants shall serve that affirmation on Plaintiff by December 8, 2025, and file 
it with the Court on that same date.  If documents are submitted for an in camera review, the 
Court will make further directives after its review is completed.  Additionally, the Court notes 

the OSI file related to the matter at hand was previously provided to Plaintiff’s former counsel 
pursuant to the terms of the Protective Order, Dkt. No. 90, due to the legitimate penological 
security interests.  Dkt. No. 179-12 at 10.                               
When this matter is set for trial, it is likely that pro bono trial counsel will be appointed 
for Plaintiff at which time Defendants shall provide the subject OSI file related to this matter, 
including the report of Investigator Brian Irwin dated September 9, 2015, his final determination 
concerning Plaintiff’s claims in this action, and any personnel file materials the Court may deem 
discoverable after its in camera review, to such counsel pursuant to the terms of the Protective 
Order.                                                                    
     5.  Defendants’ Medical and Mental Health Records               

Plaintiff seeks Defendants’ mental health treatment records without any date restriction, 
along with their medical treatment records for September 9, 2015.  Dkt. No. 174 at 6.  This 
request is denied.  First, as with some of the other documents sought by Plaintiff, there are 
security concerns with releasing such records to an incarcerated person.  Dkt. No. 179-11, ¶¶ 27-
32.  Second, and more importantly, such mental health records, if they exist, are irrelevant to any 
of the claims and defenses in this action.  There is no claim or defense in this case that DOCCS 
directed Defendants to undergo mental health treatment resulting from the use of force on 
Plaintiff.  See generally Dkt. Nos. 13, 85.                               
Further, regarding Defendants’ mental health records, courts have long recognized that 
certain communications and documents may be protected from discovery by the psychotherapist-
patient privilege, described by the United States Supreme Court in Jaffee v. Redmond,
518 U.S. 1
(1996).  The privilege covers confidential communications made to licensed psychiatrists, 

psychologists, and social workers during psychotherapy.
Id. at 15
.  The Jaffee Court noted the 
privilege is “rooted in the imperative need for confidence and trust” in the psychotherapist-
patient relationship and is designed to avoid deterring people from seeking treatment for fear that 
they will suffer a disadvantage in later litigation.
Id. at 10-11
.  The privilege also serves public 
ends because “[t]he mental health of our citizenry, no less than its physical health, is a public 
good of transcendent importance.”
Id. at 11
.                             
As stated above, in Jaffe, the Supreme Court instructed that “[f]ederal courts are required 
to recognize that confidential communications between a licensed psychotherapist --- including a 
licensed social worker engaged in psychotherapy --- and his or her patients in the course of 
diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal 

Rules of Evidence . . . .”  In re Sims,
534 F.3d 117, 130
(2d Cir. 2008) (citing Jaffe,
518 U.S. at 
15
).  The privilege may be either expressly or impliedly waived.
Id. at 131
(citations omitted).  
“[W]aiver may be implied in circumstances where it is called for in the interests of fairness,” 
including “when a party attempts to use the privilege as both a shield and a sword.”  Sims,
534 F. 
3d at 132
(citation and internal punctuation omitted).  In other words, waiver occurs if a party 
relies on a mental or emotional condition as an element of his or her claim or defense.  See 
Walker v. Metro North Commuter RR., No. 23 Civ. 9883 (GS),
2025 WL 2792594
, at *4 
(S.D.N.Y. Oct. 1, 2025) (citation omitted).  Whether a waiver has occurred should be determined 
on a case-by-case basis.  Jaffe,
518 U.S. at 18
.  Here, no such waiver has occurred because 
Defendants have not put their mental health at issue by relying on any emotional or mental 
condition as an element of their defenses.  See generally Dkt. No. 85.    
Moreover, Plaintiff’s reliance on Henry v. Hess, No. 11 Civ 2707(KMK)(GAY),
2012 
WL 4856486
(S.D.N.Y. Oct. 12, 2012), to support his request for Defendants’ mental health 

records is misplaced.  Henry involved records of a police officer defendant generated by a 
psychological “fit for duty” evaluation which was not for the purposes of treatment, and the 
records were disclosed to the relevant police department by the examiner.
Id. at *1-2
.  Here, 
there is no claim or defense that DOCCS directed Defendants to undertake a psychological 
fitness evaluation.  See generally Dkt. Nos. 13, 85.  Accordingly, Plaintiff’s motion to compel 
production of Defendants’ mental health records, if any exist, is denied.  
As for Plaintiff’s request for Defendants’ medical records from September 9, 2015, those 
medical records were provided to Plaintiff’s former counsel pursuant to the relevant Protective 
Order.  Dkt. No. 179-12 at 11-12; see also Dkt. No. 90.  Again, Defendants have articulated 
legitimate security concerns related to furnishing such records directly to incarcerated 

individuals.  Dkt. No. 179-11, ¶¶ 27-32.  The Court reiterates when this matter is set for trial, it is 
likely that pro bono trial counsel will be appointed for Plaintiff at which time Defendants shall 
provide the subject medical records of Defendants from September 9, 2015, to such counsel 
pursuant to the terms of the Protective Order.                            
     6.  Plaintiff’s Request for Defendants’ Counsel to Conduct Written    
     Depositions of Non-party Witnesses                              

Plaintiff also seeks an order directing Defendants’ counsel to accept his written 
deposition questions for multiple non-party witnesses employed by DOCCS and to have DOCCS 
appoint a stenographer to administer the oath and take these depositions.  Dkt. No. 174 at 17-20.  
The list of witnesses contains the names of approximately 33 people.
Id. at 17
; see also Dkt. No. 
172-2 at 59-60.  Plaintiff also requests subpoenas for non-party witness medical providers from 
Glens Falls Hospital and Albany Medical Center, and the medical providers at Great Meadow 
Correctional Facility and Southport Correctional Facility, all of whom allegedly treated him.
Id. 
at 18-21
.  Defendants oppose these requests indicating the requests are improper.  Dkt. No. 179-

12 at 12.  The Court agrees with Defendants.                              
Initially, the Court notes Plaintiff has not submitted a single proposed subpoena for the 
Court’s review and consideration.  See generally, Dkt. Nos. 172, 174; see also Fed. R. Civ. P. 45.  
Moreover, Plaintiff’s request for these written depositions to a voluminous number of non-party 
witnesses lacks any particularity regarding how the witnesses’ testimony may be related to the 
allegations in the operative complaint.  Importantly, Defendants do not represent the non-party 
witnesses and, as such, they are not required to conduct Plaintiff’s requested written deposition 
discovery for him.                                                        
Moreover, Plaintiff has not complied with Rule 31 of the Federal Rules of Civil 
Procedure which provides that “a party may, by written questions, depose . . . a party, without 

leave of court,” except in certain other circumstances.  Fed. R. Civ. P. 31(a)(1), (2).  In such other 
circumstances under Rule 31, leave of Court must be obtained when the requested depositions 
would result in more than 10 depositions being taken, as is the case here.  Fed. R. Civ. P. 
31(a)(2)(A).   The Rule also requires that an officer record any such deposition and certify it.  
Fed. R. Civ. P. 31(b); 30(b)(5), (c)(3).  Plaintiff has not proposed a plan to address the method of 
recording these numerous depositions, nor has he identified an officer to conduct them or how 
the costs of the depositions will be paid.  See generally Dkt. Nos. 172, 174.  Instead, Plaintiff 
requests that Defendants undertake those duties, which is improper.  As such, Plaintiff’s motion 
to compel the depositions of numerous non-party witnesses is denied since he has not complied 
with the requirements of Federal Rules of Civil Procedure 28, 30, 31, and 45. 
IV.  PLAINTIFF’S MOTION FOR RECONSIDERATION                               
Turning to Plaintiff’s letter request, Dkt. No. 185, for reconsideration of the Court’s 

Decision and Order, Dkt. No. 184, denying his motion to amend, Dkt. No. 154, that request is 
denied for the following reasons.                                         
Local Rule 60.1 provides that a party may file a motion for reconsideration within 
fourteen days from the date of judgment, order, or decree is entered.  N.D.N.Y. L.R. 60.1.  
Plaintiff’s letter request, Dkt. No. 185, was timely filed thus the Court will consider it.  The 
standards governing motions for reconsideration are necessarily strict to prevent litigants from 
rehashing the same issues that have already been carefully considered by the district court in the 
prior ruling.  Navigators Ins. Co. v. Goyard, Inc.,
623 F. Supp. 3d 220
, 222 (S.D.N.Y. 2022) 
(“[S]uch a motion ‘is not a vehicle for relitigating old issues, presenting the case under new 
theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple[.]’”) 

(quoting citing Analytical Survs. Inc. v. Tonga Partners L.P.,
684 F.3d 36, 52
(2d Cir. 2012)).  
In this circuit, “[a] court may justifiably reconsider its previous ruling if: (1) there is an 
intervening change in the controlling law; (2) new evidence not previously available comes to 
light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice.”  
DG N.Y. CS, LLC v. Norbut Solar Farm, LLC, No. 1:23-CV-971,
2024 WL 476540
, at *1 
(N.D.N.Y. Feb. 7, 2024) (quoting Delaney v. Selsky,
899 F. Supp. 923, 925
(N.D.N.Y. 1995)). 
Measured against this standard, Plaintiff’s letter request for reconsideration is denied.  
Plaintiff has not presented new law or facts that would require this Court to revisit its August 11, 
2025, Decision and Order, Dkt. No. 184.  Nor has Plaintiff articulated a clear error of law or 
manifest injustice.  Instead, Plaintiff merely argues that the Court erred in striking his reply to the 
underlying motion to amend because he is pro se and rejecting his reply amounted to “procedural 
default” which prevented his motion from being decided on the merits.  This argument is 
unpersuasive.  The motion to amend was fully briefed per Local Rule 7.1, and the Court 

thoroughly and extensively examined Plaintiff’s arguments supporting his motion such that it 
was decided on the merits.  See N.D.N.Y L.R. 7.1; see also Dkt. No. 184.  In his request for 
reconsideration, Plaintiff merely attempts to relitigate the issues decided in the underlying 
Decision and Order, Dkt. No. 184, and otherwise seeks to take a “second bite at the apple.”  
Accordingly, Plaintiff’s letter request for reconsideration, Dkt. No. 185, is denied. 
V.   CONCLUSION                                                           
After carefully reviewing the record, the parties’ submissions, and the applicable law, and 
for the reasons stated herein, Plaintiff’s motion to compel, Dkt. No. 172, is granted, in limited 
part, as set forth above, and denied in all other respects.  Plaintiff’s letter request, Dkt. No. 185, 
for reconsideration of this Court’s Decision and Order denying his motion to amend is denied in 

all respects.                                                             
WHEREFORE, it is hereby                                              
ORDERED that Plaintiff’s motion to compel, Dkt. No. 172, is GRANTED, in limited 
part as set forth above in Section III.C., subsections 3-5, and consistent with this Decision and 
Order, and is otherwise DENIED; and it is further                         
ORDERED that Plaintiff’s letter request, Dkt. No. 185, for reconsideration is DENIED; 
and it is further                                                         
ORDERED that, with the exception of the limited discovery directed herein, all fact 
discovery is closed; and the expert disclosure deadlines are extended as follows:  
Plaintiff's expert disclosure due 12/22/2025; Defendants’ expert disclosure due 1/12/2026; 
rebuttal expert disclosure due 1/23/2026; all expert disclosure, including expert depositions, if 
any, due 2/6/2026; dispositive motions due 3/9/2026; and it 1s further 
 ORDERED that the Clerk provide to Plaintiff a copy of this Decision and Order, along 
with copies of the unpublished decisions cited herein in accordance with the Second Circuit 
decision in Lebron v. Sanders,
557 F.3d 76
(2d Cir. 2009) (per curiam). 
 IT ISSO ORDERED. 
Dated: November 24, 2025 
 Syracuse, New York 



                                     United States Magistrate  Judge 

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