CHARLES S. HAIGHT, Jr., Senior District Judge.
The background of this pro se civil rights action has been detailed extensively in prior orders from the Court. See Docs. 15, 82. There is no need to repeat it here. It is for the Court now to resolve the seventeen motions pending before it.
Plaintiff moves, pursuant to Fed. R. Civ. P. 60(b)(1) and (6), for the Court to "overturn its Ruling ordering dismissal of Plaintiff's claims for declaratory and injunctive relief." Doc. 86, at 5. The ruling Plaintiff refers to was filed on December 31, 2014. Doc. 64. Plaintiff filed an earlier motion for reconsideration of that ruling on April 1, 2015, arguing, inter alia and as it does here, that the Court erred in dismissing Plaintiff's claims for declaratory and injunctive relief. Doc. 71. On July 23, 2015, the Court ruled that Plaintiff's reconsideration motion was untimely and also, in dicta, rejected Plaintiff's arguments on their merits. Doc. 82, at 9. Plaintiff filed the instant motion on August 3, 2015. Doc. 86.
Plaintiff purports to bring his motion pursuant to Fed. R. Civ. P. 60(b). This is in error. Rule 60(b), by its very terms, applies only to "a final judgment, order, or proceeding." This Court's December 31, 2014 ruling was not a final judgment or order. See Fed. R. Civ. P. 54(b). Rather, Plaintiff's motion is more properly considered a motion for reconsideration governed by this district's local rules. As the Second Circuit stated in Harris v. Millington:
613 F. App'x 56, 58 (2d Cir. 2015); see also City of West Haven v. Liberty Mut. Ins. Co., 1989 WL 190242, at *6 n.3 (D. Conn. June 1, 1989) ("[D]efendant has erred in seeking relief under Rule 60(b), as judgment is not final with respect to Count One or any other claims. See Rule 54(b). Defendant's request is more appropriately construed as a motion for reconsideration.").
Local Rule 7(c)(1) requires that a motion for reconsideration be filed within fourteen days from the order from which relief is sought. Plaintiff filed his motion 215 days after the ruling from which he seeks relief. Therefore, like his previous motion for reconsideration, it is untimely.
Moreover, Plaintiff's motion is meritless. As stated in the Court's previous denial of his earlier reconsideration motion: "The standard governing a motion for reconsideration is strict . . . Such a motion generally will be denied unless the `moving party can point to controlling decisions or data that the court overlooked.'" Doc. 82, at 8 (quoting Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). In its previous order, the Court held that
Id. at 9 (quoting Ziemba v. Lajoie, 2012 WL 4372245, at *3 (D. Conn. Sept. 24, 2012)). Plaintiff makes no citation to any overlooked authority that would bring that analysis into question, nor could he. Plaintiff's only citations are ti the Declaratory Judgment Act, 28 U.S.C. § 2201, which simply states that a court "may" issue a declaratory judgment and in no way requires one as to the present facts, and Powell v. McCormack, 395 U.S. 486, 499 (1969), which simply reiterates the same principle.
Nor does Plaintiff raise any new authority calling into question the Court's rejection of his argument that the Court erred in finding moot his request for declaratory and injunctive relief. Further, assuming arguendo that the Court did err in discussing mootness where no mootness argument was presented to it, the Court's central holding was the one reiterated just above: Plaintiff is not entitled to declaratory or injunctive relief as a matter of law. That ground was, and remains, an independently sufficient ground for dismissal. Plaintiff's motion is denied.
On August 20, 2015, Plaintiff requested a "courtesy copy of the Second Amended Complaint, Initial Review Order, and Document ## 43-87 of the court's file." Doc. 90, at 1. Plaintiff moved to withdraw this motion on September 4, 2015. Doc. 94. The Court grants Plaintiff's motion to withdraw, and denies as withdrawn his earlier motion. The Clerk is directed to close both motions.
Plaintiff moves for joinder of five individuals who are currently referred in the operative pleading as"John Doe #1" through "John Doe #5."
Where a party seeks to replace "John Doe" parties with named individuals, it must demonstrate that the substitution satisfies the "relation back of amendments" provision of Fed. R. Civ. P. 15(c). Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468 (2d Cir. 1995) (citing Aslandis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993)). Those requirements are that the conduct of the John Doe defendants "arose out of the conduct transaction or occurrence" discussed in the initial pleading (clearly satisfied here), and that the following requirements were fulfilled within 120 days after the initial complaint was filed: (i) "the party to be brought in . . . received such notice that it will not be prejudiced in maintaining its defense," and (ii) that party "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c).
First, the Court finds that the individuals Plaintiff aims to substitute for the John Doe defendants were on sufficient notice for purposes of Rule 15(c). Where a newly proffered state-official defendant will be represented by the same attorney as previously identified state-official defendants, notice to the earlier defendants can be imputed to the later defendants where "the attorney knew or should have known that the additional defendant would be added to the existing suit." Byrd v. Abate, 964 F.Supp. 140, 146 (S.D.N.Y. 1997). Here, defense counsel should have been aware of the identities of the John Doe defendants, given that they were identified with a fair amount of specificity in the amended complaint filed September 24, 2012. See Doc. 12 ¶¶ 24-27 (each of John Does #1-4 "is/was at all times relevant to this Complaint a CTDOC employee assigned to NCI as a Corrections Officer `C.O.'"); ¶ 13 ("John Doe #5 is/was at all times relevant to this Complaint a CTDOC employee assigned to NCI with the rank of third shift commander designee-Lieutenant"); ¶¶ 111-19 (alleging that John Does #1-4 "prepared individually [the] in cell restraint checklist" between April 23-26, 2010, made misleading reports about Plaintiff's behavior as part of a conspiracy with the Lieutenant Defendants, and knew such reports would lead to a continuation of in cell restraint status); ¶¶ 146, 149-50 (allegations about John Doe #5 and his activities specifically during the third shift hours on April 24-26, 2010). Accordingly, "as in Byrd, defense counsel knew of the roles of the `Doe' defendants, and knew that the officers who were on duty at the times and places identified in the Complaint would be named as defendants in the suit," identities which "were `uniquely accessible to [Defendants' counsel,]' who could have (and should have) consulted police department records and interviewed officers and other police department employees." Archibald v. City of Hartford, 274 F.R.D. 371, 380 (D. Conn. 2011) (quoting Byrd, 964 F. Supp. at 146-47) (also determining that "counsel was aware that it would have to obtain that information," "within the 120 days after the [C]omplaint was filed"). Defendants' notice argument rings hollow.
Second, that Plaintiff's listing of the proposed defendants as "John Doe" was not a "mistake concerning the proper party's identity" does not preclude him from invoking Rule 15(c). At first glance, such would appear to be the necessary outcome of Barrow, in which the Second Circuit held that "Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." 66 F.3d at 470. One could argue that here, like in Barrow, Plaintiff simply did not know the identities of the John Doe defendants, and thus his was not a "mistake" under Rule 15(c)(1)(C).
However, since Barrow, courts have fashioned an exception to this rule for situations such as the case at bar, in which the information as to the "John Doe" identities is particularly within the defendant's knowledge, the plaintiff has diligently attempted to ascertain those identities through discovery, and the plaintiff seeks to amend shortly after learning of those identities. See Byrd, 964 F.Supp. 140, 146 (permitting amendment replacing John Doe defendants to relate back pursuant to Rule 15(c) because the plaintiff's "circumstances are distinguishable from those presented in Barrow," in which the plaintiff "failed to make any efforts to obtain the identity of their names until well after the statute of limitations had run."). In Byrd, where the inmate-plaintiff "made a series of efforts to obtain the identity of the individual officer without prompting, and well before the end of the limitations period," and where the identity of John Doe was "uniquely within the knowledge of Corporation Counsel," the plaintiff was permitted to invoke Rule 15(c). Id. The Byrd court ended its analysis by aptly pointing out the implications of a different holding: "To hold that Rule 15(c) does not permit relation back in such circumstances would permit defense counsel to eliminate claims against any John Doe defendant merely by resisting discovery requests until the statute of limitations has ended." Id.
This holds true here. In fact, so much so that it is almost an expression of temerity for the Defendants to argue that Plaintiff's request to substitute the John Doe defendants is improper. As an initial matter, just six weeks prior to his filing of the instant motion, this Court expressly permitted Plaintiff to refile his joinder motion "should the [John Doe] identities be revealed through discovery." Doc. 82, at 1 n.1. Further, the "discovery" referred to in that sentence was information that was being ordered to be produced within that ruling itself.
Moreover, it is clear that Plaintiff has been diligently attempting to gain discovery as to the John Doe defendants throughout this timely-filed litigation. Plaintiff, through the May 15, 2013 Initial Review Order, was told for the first time that failure to identify the John Doe defendants "may" lead to dismissal. Doc. 15, at 15.
Doc. 35, at 3. Shortly thereafter, in January 5, 2014, Plaintiff propounded interrogatories and requests for admission as to the John Doe defendants, and, after receiving no response, filed a subsequent motion to compel as to same on April 17, 2014.
It was only then that Plaintiff was finally able to receive the information for which he had been diligently searching, namely, the identities of the John Doe defendants. As Plaintiff now posits in his instant motion: "It was not until August 14, 2015, that the defendants finally complied with Plaintiff's August 9, 2014 discovery request providing information revealing the identities of John Doe #9-12 who became John Doe #1-4." Doc. 108, at 6. Plaintiff then quickly filed the instant motion to join the John Doe defendants three weeks after receipt of that discovery. A greater example of diligence on the part of an incarcerated pro se plaintiff cannot be envisioned. Plaintiff's motion is granted.
Generally, a party may serve up to 25 interrogatories on any other party. Fed. R. Civ. P. 33(a)(1). On September 9, 2015, Plaintiff moved for permission to serve an additional 10 interrogatories on each Defendant. Doc. 96. On September 21, 2015, Plaintiff filed a supplemental motion seeking leave to serve an additional 40 interrogatories on each Defendant, for a total of 65. Doc. 101. Defendants objected to that motion. Doc. 105. On October 1, 2015, Plaintiff filed another supplemental motion, which expressly withdrew his previous two motions to the extent they sought additional interrogatories as to all Defendants. Rather, his latest motion "limits his request to serve additional interrogatories upon Defendants Michael Pafumi and Richard Bellerose." Doc. 110, at 3-4. Plaintiff does not identify the precise number of interrogatories he aims to serve on Defendants Pafumi and Bellerose. Moreover, he failed to attach complete versions of the proposed interrogatories. See, e.g., Doc. 110 Ex. 1 (missing even numbered pages). This failure requires the dismissal of Plaintiff's motion. As stated by Judge Bolden:
Ruffino v. Correctional Officer Harrell, 2015 WL 9451028, at *2 (D. Conn. Dec. 23, 2015). Plaintiff's motion is denied without prejudice to refiling with the complete versions of the proposed interrogatories attached.
On September 9, 2015, Plaintiff filed a motion seeking to extend the dates set by the Court in its scheduling order that it issued along with its earlier omnibus ruling. Doc. 97. Defendants opposed that motion. Doc. 106. On October 27, 2015, Defendants filed a motion to extend the date by which the parties must file the joint trial memorandum. Doc. 111. On November 2, 2015, Plaintiff filed his own motion to extend the same date. Doc. 113. Each motion is denied as moot in light of the scheduling order the Court enters herewith. See infra.
On June 11, 2015, Plaintiff initially moved for the appointment of pro bono counsel. Doc. 82. The Court denied that motion in its earlier omnibus ruling, which also ruled, inter alia, on Defendants' motion to dismiss claims against them in their individual capacities. Doc. 82. In that ruling, the Court stated the Second Circuit's relatively strict requirements for the appointment of pro bono counsel, including, but not limited to, that the movant's claim "`seems likely to be of substance.'" Hodge, 802 F.2d at 61. On that point, the Court ruled as follows:
Doc. 82, at 27.
Plaintiff accepted the Court's invitation and filed a second motion for appointment of counsel three months after the Court's earlier ruling. Doc. 112. Plaintiff's sole additional argument purporting to rectify the deficiency previously identified by the Court—that it is premature to assess the merits of Plaintiff's claim given the bare record before the Court—is that he will be entitled to an adverse inference regarding a video that was purportedly destroyed by the Defendants that documents the conduct at issue. Doc. 112-1, at 6-13. The argument thereby seemingly goes that because he will be entitled to an adverse inference, the chances of him succeeding at trial have increased. However, there is no spoliation motion before the Court and therefore Plaintiff's reliance on a forthcoming ruling regarding an adverse inference is pure speculation.
Plaintiff moves to compel Defendants's production of documents responsive to his first requests for production. Plaintiff served those requests on March 18, 2015. Defendants did not respond or otherwise object to those requests by their April 17, 2015 deadline. Rather, Defendants responded to Plaintiff's requests on September 11, 2015, and did so only after Plaintiff prodded them via written letter to respond. See Doc. 114-1 Ex. 1 Ex. A. In their untimely response, Defendants state numerous categorical objections to many of Plaintiff's document requests, ultimately leading to the instant motion to compel, filed on November 16, 2015. Defendants elected to file no objection to the motion to compel until February 10, 2016, nearly three months after the motion was filed and more than two months after their response was due.
With respect to Plaintiff's earlier motion to compel, the Court stated the following, which applies equally to his present motion:
Here, Defendants served Plaintiff with their objections nearly five months after the deadline to respond had passed. Moreover, Defendants had an opportunity to explain their delay by timely objecting to Plaintiff's motion to compel, in which he argued that Defendants' objections are waived because they were untimely. They chose not to. The Court holds without difficulty that Defendants have waived any general objections to Plaintiff's requests for production of documents, served on March 18, 2015. To hold otherwise would make a mockery of the Federal Rules.
Plaintiff's motion to compel is granted. Plaintiff is directed, if he desires, to file an affidavit on or before February 26, 2016 documenting his costs and expenses, if any, in proffering to the Court his motion to compel. Defendants will have the opportunity to respond to that submission.
Both parties have cross-moved for sanctions. Defendants claim that Plaintiff purposefully misled the Court by stating in his motion to modify the scheduling order that he "was not entitled to free postage and envelopes and free writing paper because he was not deemed indigent" under Department of Correction rules. Doc. 116. Defendants contend this statement was misleading in light of Plaintiff's later submission to the Court that he received legal envelopes "as if I [he] was an indigent per policy standards." Id. In turn, Plaintiff's motion argues that Defendants misrepresented Plaintiff's spending in prison. Doc. 118. Neither party cites any authority supporting an award of sanctions. The Court assumes that the motions are filed pursuant to Fed. R. Civ. P. 11(b), which controls the imposition of sanctions for false or misleading representations to the Court.
Rule 11(b)(2) governs the procedure for the filing of a motion for sanctions. Relevant here, it states that a "motion for sanctions must be made separately from any other motion." Id. Both parties fail to comply with that directive. Defendants' is both a motion for sanctions as well as an opposition to Plaintiff's previously-filed discovery motion. Doc. 116, at 1 ("Defendants further object to plaintiff's September 7, 2015 Motion to Modify the Discovery Deadline, and move to seek sanctions against the plaintiff for misrepresentations he made to the court."). Plaintiff's error is precisely the same. See Doc. 118, at 1 (captioning his motion as "Plaintiff's Motion for Sanctions and Supplemental Response to Defendant's [107] Objection [to Plaintiff's Motion to Modify the Discovery Deadline]"). Both motions are thereby defective and are dismissed without prejudice. The parties should give some consideration as to whether re-filing is warranted in light of the Court's order below setting a revised case schedule.
The plaintiff has filed a motion for emergency relief seeking a ruling on pending motions. In light of the instant ruling, the motion is denied as moot.
Based on the foregoing, the Court makes the following Ruling and Order.
All the foregoing is SO ORDERED.
