Opinion
99cv0441.
August 31, 2004
Order and Report Recommendation
Before the Court is the defendants' motion to dismiss (Docket No. 46) and the plaintiff's motion for reconsideration (Docket No. 48).
The plaintiff claims that he was assaulted by guards and/or other inmates while incarcerated at the Niagara County Jail. The defendants previously filed a motion seeking to compel the plaintiff to produce certain discovery. (Docket No. 39). By order dated November 25, 2003, the Court directed that among other things, the plaintiff produce updated authorizations regarding medical records; releases to obtain information from the Niagara County Department of Social Services; a copy of an agency investigation referred to in plaintiffs' counsel's March 8, 2002 letter; and responses to the defendants' third request for the production of documents. (Docket No. 44). The defendants now move for dismissal on the grounds that the plaintiffs have failed to produce these items as directed. (Docket No. 46).
The plaintiffs assert that the authorizations and releases were not timely provided because plaintiffs' counsel's schedule prevented her from traveling to the Niagara County Jail to obtain her client's signature and she had advised her client not to sign anything unless she was present. It appears that the authorizations and releases have since been executed. (Docket No. 49 at ¶ 5).
With respect to the agency report, the plaintiffs contend that no such report is in their possession, custody or control. In a letter dated March 8, 2002, plaintiffs' counsel referred to an investigation of Dr. George H. Muscato by an "agency." (Docket No. 39, Exhibit E). The defendants requested that plaintiffs produce a copy of the report issued by the unnamed agency. This item was included in the defendants' motion to compel. The plaintiffs responded that they refused to produce the "supporting documentation" referred to in the March 8, 2002 letter because it was attorney-work product. (Docket No. 42 at ¶ 11). The Court held that any such report would not constitute attorney-work product and would have to be produced. (Docket No. 44). The plaintiffs now seek reconsideration of this portion of the Court's November 25, 2003 Order stating that they do not possess any such report, and were in fact requesting this document from the defendants. (Docket No. 48). Such a position does not make sense in light of the plaintiffs' counsel's response to the motion to compel. However, the plaintiffs cannot produce a report that is not in their possession custody or control. Although the motion for reconsideration is hereby denied, the Court will not recommend sanctions based upon the plaintiffs' failure to produce this report inasmuch as plaintiffs represent that they do not possess the report. If it is determined that either the plaintiffs or plaintiffs' counsel actually possesses a copy of the report, this Court would favorably entertain a new motion seeking the imposition of sanctions.
Finally, the plaintiffs assert that they have now responded to the defendants' third request for the production of documents.
The drastic sanction of dismissal is not warranted at this time. The defendants do not seek other sanctions. (Docket No. 46).
Based on the above, it is recommended that the motion to dismiss be denied.
Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as WDNY Local Rule 72(a)(3). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and WDNY Local Rule 72(a)(3).
Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. SeePatterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to WDNY Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3)may result in the District Court's refusal to consider the objection.
So ordered.