Smith v. Baugh

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

__________________________________

LAURIE ANN SMITH, Individually and as

Administratrix of the Estate of

Thomas J. Blancke, Sr., deceased, DECISION

and

Plaintiff, ORDER

v.

ADRIAN BAUGH, 16-CV-906V(F)

GEORGE BROWN,

MICHAEL WOODARD,

JOHN AND JANE DOES,

Defendants.

_ __________________________________

APPEARANCES: THE COCHRAN FIRM

Attorneys for Plaintiff

STEPHANIE ROSE CORREA,

DEREK SCOTT SELLS, of Counsel

55 Broadway, 23rd Floor

New York, New York 10006

ERIC SCHNEIDERMAN

ATTORNEY GENERAL, NEW YORK STATE

Attorney for Defendants

JOEL J. TARRAGNOLI,

Assistant Attorney General, of Counsel

Main Place Tower

350 Main Street, Suite 300A

Buffalo, New York 14202

In this § 1983 action, Plaintiff alleges violations of Plaintiff’s decedent, Thomas

Blancke, Sr.’s (“Blancke”), Eight Amendment rights while Blancke was incarcerated at

the Five Points Correctional Facility (“Five Points”) operated by the New York State

Department of Corrections and Community Supervision (“DOCCS”) at which

Defendants were employed as corrections officers. Specifically, Plaintiff asserts

Blancke’s death as a result of a severe beating during the early morning hours of

December 14, 2013, by Blancke’s cell-mate, one Brian Karris (“Karris”), was caused by

Defendants’ wrongful placing Karris, an inmate with violent propensities known to

Defendants, in Blancke’s cell in retaliation for Blancke’s misconduct. Plaintiff also

alleges Defendants Brown and Baugh’s failure to intervene promptly after hearing

sounds of fighting in the cell further contributed to Blancke’s death in violation of

Blanche’s Eighth Amendment right to receive reasonable protection while a prisoner at

Five Points. Finally, Plaintiff alleges Defendants failed to provide Blancke with more

timely medical assistance, unreasonably delayed by Defendants, which if administered

promptly could have avoided Blancke’s death as a result of Karris’s beating. The record

indicates Karris was subsequently convicted in state court of murder in causing

Blancke’s death. Plaintiff’s claim for loss of consortium has been withdrawn. Dkt. 31 at

13.

By papers filed September 7, 2018 (Dkt. 27), Defendants moved for summary

judgment (“Defendants’ motion”). Plaintiff’s Opposition was filed October 15, 2018 (Dkt.

31) (“Plaintiff’s Opposition”). Defendants’ Reply was filed October 26, 2018 (Dkt. 32)

(“Defendants’ Reply”). In Plaintiff’s Opposition, Plaintiff contends Defendants’ motion

should be denied as Plaintiff has not completed discovery, specifically, depositions in

the matter, and requests pursuant to Fed.R.Civ.P. 56(d) (“Rule 56(d)”) the court permit

Plaintiff to conduct depositions and obtain records pertaining to Defendants’ failure to

provide Blancke with medications needed to control his behavioral problems, to enable

Plaintiff to fully oppose Defendants’ motion. Dkt. 31-1 at ¶¶ 3-5 (noting Plaintiff has not

received discovery relating to the appropriateness of assigning Blancke and Karris to

the same cell based on their psychological conditions and Plaintiff’s lack of opportunity

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to examine relevant witnesses including Defendants). In Defendants’ Reply,

Defendants argued that although Plaintiff served document requests to which

Defendants responded on November 27, 2017, Plaintiff failed to notice and conduct any

depositions prior to the cut-off date for discovery of August 9, 2018, established by the

Scheduling Order of August 9, 2017 (Dkt. 16), and that Plaintiff never requested an

extension of the discovery cut-off date to do so. Dkt. 32 at 2. Defendants’ motion was

thereafter filed one month after the scheduled close of discovery.

Subsequent to Defendants’ motion filing, in letters to the court dated December

13, 2019 and December 17, 2019, (“the December 2017 letters”) Plaintiff requested

leave to include in Plaintiff’s Opposition a copy of a report concerning Blancke’s death

at Five Points issued by the New York State Commission of Correction1 (“the

Commission”) dated June 27, 2017 (“the Report”) which had been included in

Defendants’ document production but as a result of “law office error” was overlooked by

Plaintiff’s counsel and thus not included in Plaintiff’s Opposition. Dkt. 35 at 1.2

According to Plaintiff, based on the Commission’s review of surveillance videos, the

Report bolsters Plaintiff’s contentions that Defendants failed to properly patrol the

Special Housing Unit (“SHU”) gallery where Blancke’s cell was located during the 5 – 6

a.m. time frame, as required by DOCCS directive, on December 14, 2013, during which

the altercation allegedly occurred and failed to respond promptly to sounds from the cell

1 The New York State Commission on Corrections, created by N.Y. Corr. Law § 41 (McKinney 1975), is

required by N.Y. Corr. Law § 47 (McKinney 2021) to investigate and issue reports concerning the deaths

of inmates incarcerated at state and local prisons.

2 An unredacted version of the December 13, 2019 Letter was docketed in restricted form, limiting access

to the parties and the court (Dkt. 34). The December 17, 2019 Letter was filed in redacted form (Dkt. 35),

and in unredacted form under seal (Dkt. 37-1).

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indicating a fight was taking place which failure allowed Karris to assault Blancke for

approximately 40 minutes without any intervention by Defendants, constituting an

Eighth Amendment violation based on Defendants’ failure to protect Blancke. Dkt. 35 at

2. Plaintiff further contends the Report provides evidence supporting Plaintiff’s

allegations that the sounds emanating from the cell should have alerted Defendants

Baugh and Brown to Blancke’s need for assistance supporting Plaintiff’s Opposition of

Defendants’ motion. See Dkt. 35 at 2.

Plaintiff further argues that the Report findings that Defendants’ delay in

responding to Blancke’s, who was still alive when Defendants responded, severe and

palpable injuries by administering immediate first aid significantly contributed to

Blancke’s death. Additionally, according to Plaintiff, the Report creates material issues

of fact as to whether Karris and Blancke were properly approved and designated for

double-celling, i.e., housing, in the same call based on their respective psychological

profiles and Defendants’ failure to provide for Blancke’s medical needs prior to the

assignment leading to the wrongful double-celling with Karris. Id. Based on the

Report’s finding of impropriety by Defendants Baugh and Brown in providing the

required degree of protection to inmates against reasonably foreseeable threats and

intervention in the case of assaults by another inmate, which Plaintiff contends provides

evidence supportive of Plaintiff’s allegations, Plaintiff requests that the Report be

included in Plaintiff’s Opposition despite counsel’s failure to include it in Plaintiff’s

Opposition by October 15, 2018 as required by the court’s briefing schedule for filing of

opposition to Defendants’ motion. See Dkt. 29.

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By papers filed December 19, 2019, Defendants moved to strike Plaintiff’s

December 2019 letters to the court, Dkt. 36, contending the Report was included in

Defendants’ document productions, a fact readily discernible by examination of

Defendants’ production in digital form on a USB drive according to Defendants. Dkt. 36-

1 ¶¶ 33-34. Defendants, accordingly, maintain Plaintiff fails to demonstrate Plaintiff

exercised reasonable diligence in conducting discovery and thus fails to establish good

cause required by Fed.R.Civ.P. 16(b) for reopening discovery. Dkt. 36-2 at 3-4.

Defendants further contend Plaintiff had an adequate period of time (one year) within

which to obtain discovery prior to Defendants’ motion, Dkt. 36-2 at 4-5, and that

Plaintiff’s Rule 56(d) request is based on pure speculation as to what evidence, if any,

Plaintiff expects to obtain pursuant to Rule 56(d) through belated depositions. Dkt. 36-2

at 5. Defendants also argue that nothing in the Report’s findings sufficiently implicates

Defendants to the extent necessary to establish there exists material triable issues of

either Defendants’ deliberate indifference or personal involvement, essential elements

of Plaintiff’s Eighth Amendment claims. Id. at 8-9. Finally, Defendants maintain the

December Letters fail to comply with Local R.Civ.P. 7(a)(1) which requires a motion with

supporting affidavit for all pretrial relief in civil cases.

Plaintiff’s opposition to Defendants’ motion to strike was filed January 2, 2020

(Dkt. 37) in which Plaintiff contended that Plaintiff’s depositions of Defendants were

expected to be coordinated with Defendants’ agreement with the schedule for

deposition discovery in Plaintiff’s pending N.Y. Court of Claims negligence case against

New York State on account of Blancke’s death in order to avoid unnecessary

duplication. Dkt. 37-1 at 5. According to Plaintiff, Plaintiff’s ability to conduct

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depositions in this case and the Court of Claims case on a coordinated basis was

hampered by a then pending motion in the Court of Claims matter thus excusing Plaintiff

from strict compliance with the Scheduling Order’s October 2017 discovery cut-off

seeking Defendants’ depositions prior to the discovery cut-off date. Dkt. 37-1 at 6. The

New York Court of Claims motion was decided by Judge Richard E. Sise on August 30,

2019. Dkt. 37-3 at 20. The present status of the Court of Claims case was not in the

record.

In Defendants’ Reply, filed January 6, 2020 (Dkt. 38), Defendants contend

Defendants never agreed to “keep discovery open” in reference to Plaintiff’s action in

the Court of Claims but Defendants did acknowledge that coordination of depositions

would be accomplished. See Dkt. 38-1 ¶¶ 4-6 (Declaration of Christopher L. Boyd Ass’t

Attorney General dated January 6, 2020) (Plaintiff’s negligence claims in that action

were dismissed based on late notice of claim; Plaintiff’s wrongful death claim was

allowed to proceed, see Dkt. 37-3). Defendants also reiterated that Plaintiff failed to

request any amendment of the Scheduling Order in this case to enlarge the discovery

period. Dkt. 38 at 3-4. Oral argument on Plaintiff’s Rule 56(d) motion and requests and

Defendants’ motion to strike was deemed unnecessary.

It is fundamental in federal civil litigation that the court has broad discretion in its

supervision of pre-trial discovery. In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (“‘A

trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with

regard to discovery are reversed only upon a clear showing of an abuse of discretion.’”

(quoting In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir.1998)). Further, law office

failures to comply with required time-tables in civil cases may be excused where such

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failures arise from excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B). Excusable neglect

is a flexible rule based on the equities of the circumstances giving rise to the oversight

and in order to achieve substantial justice. See Pioneer Inv. Services, Inc. v. Brunswick

Associates Ltd. Partnership, 507 U.S. 380, 390-95 (1993); Cohen v. Bd. of Trustees of

Univ. of D.C., 819 F.3d 476, 479 (D.C. Cir. 2016) (excusable neglect is a totality of

circumstances inquiry); see also Williams v. KFC Nat. Management Co., 391 F.3d 411,

415 (2d Cir. 2004) (excusable neglect is an equitable determination based on

consideration of “all relevant circumstances” (citing Pioneer Inv. Services, Inc., 507 U.S.

at 395)). Finally, Rule 1 of the Federal Rules of Civil Procedure requires the court to

apply the rules to achieve “just, speedy, and inexpensive determination” (underlining

added) in cases before the court.

Here, it appears Plaintiff’s counsel may have been inattentive to both the October

2017 discovery cut-off date as well as the inclusion of the Report in Defendants’

document production which, but for counsel’s oversight, would have enabled Plaintiff to

timely seek additional time for deposition practice by request to the court to amend the

Scheduling Order and to include the Report in Plaintiff’s Opposition to Defendants’

motion. Here, it is at least arguable whether the Report, for purposes of Fed.R.Civ.P.

56(c)(1) (on summary judgment material questions of fact require admissible evidence),

constitutes admissible evidence, see Bridgeway Corp. v. Citibank, 201 F.3d 134, 143

(2d Cir. 2000) (governmental agency investigative reports admissible evidence pursuant

to Fed.R.Evid. 803(8)(c) where report contains factual findings based on investigation

pursuant to lawful authority unless “‘sources of information or other circumstances

indicate lack of trustworthiness’”). Ross v. American Exp. Co. 36 F.Supp.3d 407, 435 n.

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27 (S.D.N.Y. 2014) (data contained in official government report and study, i.e.,

Consumer Financial Protection Bureau (“CFPB”) arbitration study, was admissible

under public records exception to hearsay rule, FRE 201(b), (d) and 803(8)).

Defendants do not argue the Report, required by N.Y. Corr. Law § 47 (Commission on

Corrections Medical Board is authorized to “[i]nvestigate and review the cause and

circumstances surrounding the death of any incarcerated individual of a correctional

facility” and to submit its report on such death to the Commission), does not make

factual findings based on an investigation, required by law or is otherwise lacking in

trustworthiness. Additionally, Plaintiff’s counsel’s belief that depositions were to be

scheduled after a pending motion in the Court of Claims action was decided provides

support that counsel was not indifferent to the need for depositions to be conducted

prior to filing dispositive motions. It would be odd that experienced counsel would delay

depositions in a case like this without some reason. Further, given the gravity of

Plaintiff’s claims, the court finds that Plaintiff’s counsel’s failure to obtain Defendants’

formal stipulation to extend the period for discovery should not result in Plaintiff being

rendered unable to fairly oppose summary judgment without Defendants’ depositions

and other necessary discovery.

In the instant case, both Rule 6(b)(1)(B) and Rule 56(d) support Plaintiff’s request

to extend discovery to permit her to depose the named Defendants. Although Plaintiff

has not separately moved pursuant to Rule 6(b)(1)(B) for an extension of time to

conduct further discovery to oppose summary judgment, especially the taking of

depositions, the court construes Plaintiff’s request for such relief as the requisite motion

under Rule 6(b)(1)(B). See United States v. $ 41,352.00 U.S. Currency, 2015 WL

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5638211, at *4 (W.D.N.Y. Sept. 24, 2015) (construing request for an enlargement of

time to file answer made in opposition to a motion to strike a claim as a motion pursuant

to Fed.R.Civ.P. 6(b)(1)(B) to extend time to file answer for excusable neglect).

Significantly, the required “excusable neglect” can be satisfied by, inter alia, attorney

incompetence. $ 41,352.00 U.S. Currency, 2015 WL 5638211, at *4 (citing Baicker–

McKee Janssen Corr, FEDERAL CIVIL RULES HANDBOOK 2015 Thomson Reuters at

324 (citing caselaw)).

Further, although a party opposing summary judgment is not automatically

entitled to discovery, Gualandi v. Adams, 385 F.3d 236, 244-45 (2d Cir. 2004), Rule

56(d) permits such discovery provided the nonmoving party who seeks further discovery

to oppose summary judgment makes a “show[ing] by affidavit or declaration” of the

reasons the requested discovery is needed. “To request discovery under Rule 56[(d)], a

party must file an affidavit describing: (1) what facts are sought and how they are to be

obtained; (2) how these facts are reasonably expected to raise a genuine issue of

material fact; (3) what efforts the affiant has made to obtain them; and (4) why the

affiant's efforts were unsuccessful.” Id. “Even where a rule 56[(d)] motion is properly

supported, a district court may refuse to allow additional discovery if it deems the

request to be based on speculation as to what potentially could be discovered.” Nat'l

Union Fire Ins. Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 117 (2d Cir. 2001) (internal

quotation marks and citation omitted). Whether to permit discovery pursuant to Rule

56(d) is a matter of the court’s discretion. Id.

In support of the requested discovery, Plaintiff filed the Correa Declaration in

Opposition to Defendants’ Motion for Summary Judgment (Dkt. 31-1) (“Correa

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Declaration”), in which Plaintiff’s counsel, Stephanie R. Correa, Esq. (“Correa”),

describes the discovery sought, i.e., the depositions of the named Defendants,

discovery pertaining to treatment of Plaintiff’s bipolar and ADHA conditions, and the

circumstances under which Karris was assigned to Plaintiff’s cell. Correa Declaration ¶

4. Plaintiff explains she expects the information to be obtained from the requested

discovery will assist Plaintiff in establishing the Eighth Amendment Claims, and that

without the discovery, Plaintiff will be required to rely on declarations provided by the

Defendants without an opportunity to cross-examine such parties. Id. ¶¶ 3-4. Plaintiff

further maintains the requested depositions will be taken in connection with the parallel

New York Court of Claims action. Id. ¶ 5. In Plaintiff’s Memorandum of Law in

Opposition to Summary Judgment (Dkt. 31) (“Plaintiff’s Memorandum”), Plaintiff

attributes the failure to earlier schedule the depositions now sought to an intention to

conduct the depositions of the named Defendants in both the instant case and the

parallel Court of Claims action at the same time, an arrangement to which former

Assistant New York Attorney General Christopher Boyd previously agreed at a

scheduling conference before the undersigned and reiterated by the Assistant Attorney

General as defense counsel in the Court of Claims case on December 19, 2019.

Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Strike at 2-3 (Dkt. 37-1

at 5-6) (citing August 9, 2017 Scheduling Conference). Although generally, calendaring

errors will not support excusable neglect for purposes of Rule 6(b)(1)(B), see Shorette

v. Harrington, 234 Fed. Appx. 3, 5 (2d Cir. 2007) (“law office calendaring error ... does

not constitute excusable neglect”), in the instant case, Plaintiff’s understanding that

depositions of the named Defendants would be coordinated so as to provide for one set

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of depositions to be taken with regard to both the instant case and the Court of Claims

action established more than a “calendaring error.”

While not condoning Plaintiff’s counsel’s apparent oversight in conducting

discovery and to oppose Defendants’ motion, neither can the court in good conscience

overlook the harsh impact of such oversight, unless excused by the court in the interest

of justice, see Lent v. Signature Truck Systems, Inc., 2009 WL 3305788, at * 3

(W.D.N.Y. Oct. 14, 2009) (permitting additional discovery “in the interest of justice” of

having the matter determined on its merits), upon Plaintiff’s ability to prosecute this

action. For example, depositions of Defendants may provide evidence sufficient to

avoid summary judgment on at least Plaintiff’s failure to protect claim. At Karris’s

murder trial Defendant Baugh, who was assigned guard duty on the SHU gallery where

Blancke’s cell was located, testified he did not hear any sounds while on duty signifying

a fight was then occurring in Blancke’s cell that should have alerted Baugh to

immediately investigate and, if necessary, intervene. See Dkt. 31-1 at 495-96. Such

denial appears contrary to the Report’s finding that surveillance video of Blancke’s cell

area included sounds of a serious altercation at that time. See Dkt. 34-1 at 10. Nor do

Defendants point to serious prejudice to Defendants if discovery is reopened on a

limited basis. Accordingly, the court finds Plaintiff’s counsel’s failure to timely seek to

enlarge the discovery period to allow for depositions and to include the Report in

Plaintiff’s Opposition to constitute excusable neglect and that in the circumstances the

court should exercise its discretion in supervising discovery to permit Plaintiff to do so.

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CONCLUSION

Based on the foregoing, Plaintiff’s request to include the Report in Plaintiff’s

Opposition to Defendants’ motion (Dkt. 31) is GRANTED; Defendants’ motion to strike

(Dkt. 36) is DENIED; Defendants’ motion (Dkt. 27) is DISMISSED without prejudice to

refiling following completion of further discovery consistent with this Decision and Order.

An amended Scheduling Order extending the time for completion of discovery limited to

depositions and any other of Plaintiff’s outstanding discovery requests for four months

will be filed simultaneously with this Decision and Order.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: January 28th, 2022

Buffalo, New York

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