*1 Plaintiff Robert Adams, III, acting pro se, asserts claims under 42 U.S.C. § 1983 against defendant Corrections Officer Justin Taylor for violating plaintiff's First, Eighth, and Fourteenth Amendment rights. (Docket # 79 (second amended complaint)). The following motions are currently pending before this Court: (1) plaintiff's first motion for an order to compel (Docket # 65); (2) defendant's motion for an order to compel (Docket # 72); (3) plaintiff's letter motion seeking an order imposing sanctions (Docket # 91); (4) plaintiff's second motion for an order to compel (Docket # 127)[1]; (5) defendant's motion for a protective order (Docket # 131)[2]; and, (6) defendant's motion to dismiss (Docket # 141). The Court grants in part and denies in part the pending motions to compel and defendant's motion for a protective order as described more fully below. The Court denies plaintiff's request for sanctions and recommends that the district court deny defendant's motion to dismiss the case for failure to prosecute.

In November 2019, plaintiff was incarcerated at the Groveland Correctional Facility (“Groveland”) where defendant worked as a corrections officer. (See Docket # 79 at ¶¶ 5, 7). On November 23, 2019, Mardell Hall and Mark Rounds, who were also incarcerated at Groveland, confronted plaintiff while he was using the bathroom and threatened to physically assault him if he continued to use the restroom while other individuals were present. (Id. at ¶¶ 7, 8). Specifically, Hall pulled out a weapon and said, “Listen faggot, if we catch you in here again, while people are in here, we're gonna blow your head off.” (Id. at ¶ 8).

Plaintiff left the restroom and informed defendant of what had occurred and that Hall had a weapon. (Id. at ¶¶ 9, 10). In response to plaintiff's request that defendant separate him from Hall and Rounds, defendant stated, “I[’]m not your bodyguard[;] if you[‘re] being threatened, be a man[ ] and defend yourself[.] [M]a[ybe] if you stopped hanging out with homo's [sic], you wouldn't have this problem; people are tired of the gay parade, and personally, so am I.” (Id. at ¶¶ 10, 11 (emphasis omitted)). When plaintiff reiterated concerns for his safety, defendant replied, “You heard what I said[.] I'm not your bodyguard[;] ma[ybe] if you weren't a ‘gay ranger’ ... I'd see what I could do .... I won't be wa[ ]ving a rainbow flag for you[.] [Y]ou brought this on yourself[;] fight[ ] or sell some ass, but[ ] I'm not moving you.” (Id. at ¶¶ 11, 12 (emphasis omitted)). Plaintiff alleges that “gay ranger” is a “demeaning and offensive term defendant Taylor[ ] and other [corrections officers] frequently used to characterize inmates in the dorm[ ] who were a part of the L.G.B.T.Q. community.” (Id. at ¶ 12).

*2 The next morning, plaintiff attempted to talk to a sergeant about the threats he had received and defendant's response. (Id. at ¶ 14). Another corrections officer yelled at plaintiff for trying to talk to a sergeant without first speaking with a corrections officer. (Id.). Plaintiff informed the officer that he previously attempted to speak with defendant but was ignored and mocked, to which the officer said, “Well, it must not have been important[;] keep it moving.” (Id.).

Later that day, Hall shoved plaintiff, called him a “fucking snitch,” and threatened that plaintiff “wouldn't be in the dorm much longer, even if he ... had to be the one to cut” plaintiff. (Id. at ¶ 15). Plaintiff informed defendant that he continued to face a threat, feared for his safety, believed he would be attacked soon, and wanted to be removed from the dormitory. (Id. at ¶ 16). In response, defendant stated, “I haven't been here for five (5) minutes, and you[‘re] already crying to me about the boogey man; did you keep your ass through the night[?] [I]t looks like you did[;] nobody touched you, right, though you'd probably like it.” (Id. at ¶ 17). Plaintiff demanded to speak to a sergeant (id.), to which defendant replied, “I'm not bothering [the sergeant] with this gay rights shit[;] I could care less .... I'm not doing anything for you, especially after you cried to [the sergeant] this morning, trying to make me look bad” (id. at ¶ 18). Plaintiff retorted that if defendant did his job, plaintiff would not need to speak to a sergeant, to which defendant answered, “I'm giving you a direct order to get away from my desk, before I write your ass up for harassment.” (Id.). Plaintiff walked away. (Id. at ¶ 19).

Around 6:30 p.m., defendant and two other corrections officers left the dormitory to watch television. (Id. at ¶ 25). While plaintiff was picking up a chess board, Hall punched him from behind. (Id. at ¶ 28). Plaintiff put his hands up in self-defense and backed away to his sleeping area. (Id.). Hall, Rounds, and a third inmate then ran at plaintiff and physically attacked him for five to eight minutes. (Id. at ¶¶ 29, 30, 32 (stating that he was punched, kicked in the face and head, “stomped on,” spit on, and cut on his hand and face with a scalpel or can top)). Eventually, corrections officers returned to the dormitory, and plaintiff was taken to the infirmary. (Id. at ¶¶ 33-35). Plaintiff was charged with fighting and violent conduct. (Id. at ¶ 39). The misbehavior report included, or was based on, information provided by a confidential informant. (Id.).

Plaintiff initiated the current action on January 19, 2021. (Docket # 1). Plaintiff's Eighth Amendment claims pertain to defendant's alleged failure to protect him from current threats. (Docket # 79 at ¶¶ 47-50). Plaintiff also alleges a Fourteenth Amendment claim based upon defendant's purported refusal to protect him on November 23 and 24, 2019, because of plaintiff's actual or perceived sexual orientation. (Id. at ¶¶ 51, 52). Lastly, plaintiff asserts that, in violation of the First Amendment, defendant retaliated against him for attempting to report defendant's failure to respond appropriately to the initial threat – specifically, by denying plaintiff's request to contact a supervisor on November 24, 2019, refusing to separate plaintiff from Hall and Rounds, and threatening to write a false misbehavior report against plaintiff for harassment. (Id. at ¶ 46).

I. Motions for Orders to Compel

*3 Currently pending before the Court are three motions seeking orders to compel. (Docket ## 65, 72, 127). As a prerequisite to a motion to compel, Rule 37(a)(1) of the Federal Rules of Civil Procedure requires that the requesting party first confer in good faith with the responding party and include with his motion a certification attesting that the parties have conferred. Fed. R. Civ. P. 37(a)(1). This Court's local rules also require parties seeking judicial intervention to resolve a discovery dispute to include an affidavit “showing that sincere attempts to resolve the discovery dispute have been made.” Loc. R. Civ. P. 7(d)(3). The local rules further provide that “[n]o motion for discovery and/or production of documents ... shall be heard unless accompanied” by such an affidavit. Id. “The purpose of the meet and confer requirement is to resolve discovery matters without the court's intervention to the greatest extent possible.” Excess Ins. Co. v. Rochdale Ins. Co., 2007 WL 2900217, *1 (S.D.N.Y. 2007). “Only those matters that remain unresolved after serious attempts to reach agreement should be the subject of a motion to compel.” Id. Therefore, in addressing each of the pending motions to compel, the Court first assesses whether the parties have conferred.

A. Plaintiff's First Motion to Compel[4]

Plaintiff's first motion to compel (Docket # 65) relates to his May 9, 2022 First Demand for Discovery (“May 9 Document Demands” or the “Demands”) (totaling seventeen demands) (Docket # 43)[5] and his June 20, 2022 First Set of Interrogatories (“June 20 Interrogatories” or the “Interrogatories”) (a set of ten interrogatories) (Docket # 52). On June 27, 2022, because defendant had not timely responded to the May 9 Document Demands in accordance with Rule 34(b)(2)(A) of the Federal Rules of Civil Procedure, plaintiff wrote defense counsel informing her of his position that any objections to the Demands had been waived and providing defendant until July 14, 2022, to provide responses. (See Docket ## 53; 65 at ¶ 4). On July 5, 2022, defense counsel informed plaintiff that most of the requested documents would be disclosed as part of defendant's Rule 26 initial disclosures due July 25, 2022,[6] and that a separate response to the Demands would be sent once counsel obtained all responsive documents. (Docket # 54). In the same letter, counsel requested until August 30, 2022, to respond to the June 20 Interrogatories. (Id.). On July 11, 2022, plaintiff consented to the August 30, 2022 deadline for responses to the Interrogatories but reiterated his position that any objections to his May 9 Document Demands had been waived. (Docket # 55 at 2). On July 20, 2022, defense counsel responded to plaintiff's May 9 Document Demands (Docket # 57), and on July 27, 2022, plaintiff sent defense counsel a letter challenging most of defendant's responses as inadequate (Docket # 60).

On August 9, 2022, prior to the agreed-upon deadline for defendant to respond to the Interrogatories, defense counsel contacted plaintiff to advise that she would not provide further responses to plaintiff's Demands or answer any of the Interrogatories pending the Court's ruling on the then-pending motion to amend. (See Docket # 63).[7] Plaintiff did not respond to counsel's letter. Instead, on September 13, 2022, plaintiff filed the current motion disputing the adequacy of most of defendant's responses to the Demands, seeking an order compelling defendant to respond to the Interrogatories, and requesting the Court to deem waived many, if not all, of defendant's objections to both sets of discovery requests. (Docket # 65).

*4 The next day, although the Court had not yet decided the then-pending motion to amend, defendant responded to plaintiff's June 20 Interrogatories (Docket # 66), which plaintiff contends occurred “sole[ly] as a cause of the filing of the instant motion to compel” (Docket # 87 at ¶ 27). Additionally, on September 29, 2022, defendant provided supplemental responses to seven of plaintiff's May 9 Document Demands. (Docket # 71). In his reply papers, plaintiff persists in challenging the adequacy of the majority of defendant's responses,[8] which now include defendant's responses to the Interrogatories. (See, e.g., Docket # 87 at ¶¶ 25-37).

Defendant has opposed the motion on the grounds that plaintiff failed to confer in good faith prior to filing the pending motion. (Docket # 75-1). Additionally, defendant maintains that “[p]laintiff has failed to specifically identify which responses he contends are lacking and require supplementation” or “address[ ] the specific objections [that] were raised,” that “the underlying discovery casts an extraordinary wide net for discovery, far beyond what is contemplated by the Federal Rules of Civil Procedure,” and that defendant cannot produce some of the requested documents for security concerns. (Id.). As to the first assertion, it is simply untrue that plaintiff failed to specify the responses he deemed inadequate or address defendant's objections. (See, e.g., Docket ## 60 at ¶ 8; 65). If anything, defendant has not responded fully to the arguments plaintiff has made about the inadequacy or inappropriateness of defendant's objections. I consider the remainder of defendant's arguments below.

Defendant contends that plaintiff “did not make any attempt to truly ‘meet and confer’ ” prior to filing the motion to compel. (Docket # 75-1 at 3). Specifically, defendant argues that plaintiff: (1) did not reply to defense counsel's August 9, 2022 letter informing plaintiff that she would not produce any further responses to plaintiff's discovery demands due to the then-pending motion to amend (Docket # 63); (2) never requested a conference; and (3) did not make a “genuine effort” to resolve any disputes. (Docket # 75-1 at 3).

*5 Plaintiff contends that his July 27, 2022 letter[9] describing the inadequacies of defendant's initial – and untimely – production satisfied Rule 37(a)(1)’s conferral requirement. He asserts that the letter addressed defendant's objections and clarified the requests that defendant indicated were vague or unclear. (Docket # 87 at ¶ 4). Upon review of plaintiff's July 27, 2022 letter (Docket # 60), I find that plaintiff did attempt to meet and confer with defendant about the perceived inadequacy of defendant's responses to the Demands. The record does not reflect that defendant responded to the July 27, 2022 letter except to inform plaintiff that counsel had unilaterally decided not to provide any additional discovery because of the then-pending motion to amend. These facts, and the specificity of plaintiff's July 27, 2022 letter, demonstrate to the Court that plaintiff viewed his motion for an order compelling supplemental responses to his May 9 Document Demands as “a last resort rather than a first option.” Black v. Buffalo Meat Serv., Inc., 2016 WL 4363506, *5 (W.D.N.Y. 2016).

Plaintiff does not directly address, however, whether the parties met and conferred about the June 20 Interrogatories. Muddling the issue, the nature of the required conferral evolved between the filing of plaintiff's initial and reply papers. That is, although plaintiff's motion seeks an order compelling defendant to respond to the Interrogatories in the first instance, plaintiff's reply papers address the adequacy of defendant's responses, which defendant served the day after plaintiff filed his motion. Therefore, the portion of plaintiff's motion seeking an order compelling defendant to respond to the Interrogatories, and the question of whether plaintiff attempted to confer about defendant's failure to initially respond, are moot. See McFadden v. Williams, 2022 WL 17126213, *2 (W.D.N.Y. 2022) (“[b]ecause defendants have now provided their initial disclosures, [plaintiff's] request for an order compelling them to do so is moot”). As to the adequacy of defendant's responses, not only are plaintiff's arguments raised the first time in reply, but nothing in the record demonstrates that plaintiff attempted to confer with defendant about those issues. Therefore, I find that plaintiff has not satisfied his obligation to meet and confer as it pertains to the sufficiency of defendant's responses to the June 20 Interrogatories.

Having found that plaintiff generally satisfied his obligation to meet and confer as to the Demands,[10] I turn to the portion of his motion challenging defendant's responses to them.

As an initial matter, in his various communications with defense counsel, plaintiff asserted that defendant had waived any objections by failing to timely respond to the May 9 Document Demands. (See, e.g., Docket ## 53, 55). Although a party's delay in timely responding to discovery requests may result in a waiver of objections, a court retains discretion to excuse the waiver. See, e.g., Evans v. Murphy, 2013 WL 2250709, *4 n.6 (W.D.N.Y. 2013) (citing Ippolito v. Goord, 2008 WL 2776864 (W.D.N.Y. 2008)); Callaway Golf Co. v. Corp. Trade Inc., 2011 WL 1642377, *2 (S.D.N.Y. 2011); McKissick v. Three Deer Ass'n Ltd. P'ship, 265 F.R.D. 55, 57 (D. Conn. 2010). Here, although defendant's response was served over a month late under applicable Federal Rules of Civil Procedure, no motion to compel was necessary to induce the response. Moreover, the response was still made early in the discovery period and before even the deadline agreed to by the parties and set by the Court for mandatory disclosures. On this record, I do not find a waiver of defendant's objections is justified. See, e.g., Evans v. Murphy, 2013 WL 2250709 at *4 n.6 (declining to deem objections waived despite untimely response); Callaway Golf Co. v. Corp. Trade Inc., 2011 WL 1642377 at *2 (waiver finding not appropriate where responses were “only twenty-two days late” and “followed promptly” after reminder letter); McKissick v. Three Deer Ass'n Ltd. P'ship, 265 F.R.D. at 57 (“the [c]ourt finds that the delay of approximately one month is not sufficiently substantial as to justify the waiver of the defendants’ objections, particularly in the absence of any deliberately evasive conduct by the defendants”); Ippolito v. Goord, 2008 WL 2776864 at *3 (waiver finding not warranted where defendant not prejudiced by delay and discovery “continued for over a year [after] the answers were filed”).

*6 That said, many of defendant's objections are not well-taken. In response to nearly every demand, defendant lists various objections but produces documents subject to those objections without indicating whether documents were in fact withheld on those grounds. (See Docket # 57). For example, defendant objected to nearly every request “to the extent it seeks information and/or documents not in [d]efendant's possession, control, or custody.” (See, e.g., Docket # 57 at 4). Plaintiff noted that “[t]o the extent defendant asserts the inability to provide the documents based on [his] lack of possession, ... [because his] counsel has a workable relationship with [the Department of Corrections and Community Supervision (“DOCCS”)], she has the practical means[ ] by which to obtain the identified documents.” (See, e.g., Docket # 65 at ¶¶ 10, 11). Plaintiff is generally correct. See Richard v. Dignean, 2021 WL 5782106, *3 (W.D.N.Y. 2021) (“[c]ourts in this District have held that the relationship between DOCCS and its employees is ‘sufficiently closely coordinated’ to find that DOCCS employees have control over evidence held by DOCCS”). Although my review of defendant's production suggests that defendant has produced documents from DOCCS, by June 26, 2023, defendant shall supplement his responses by either representing that he has provided responsive documents in DOCCS's custody or by providing those responsive documents in DOCCS's custody that were previously withheld on the basis of this objection. Likewise, defendant must clarify whether documents were withheld on the basis of any of the other stated objections so that plaintiff may determine whether to challenge such objections. See Wells Fargo Bank, N.A. v. Konover, 2009 WL 585430, *6 (D. Conn. 2009) (“the party resisting discovery bears the burden of establishing the factual basis for withholding the requested discovery[;] ... [t]his burden requires an evidentiary showing by competent evidence; ... [it] cannot be discharged by mere conclusory or ipse dixit assertions[;] ... [w]hen the relevancy of a discovery request has been demonstrated, the party claiming that a discovery request is overbroad or burdensome must show specifically ... how each question [or request] is overly broad, burdensome or oppressive, by submitting affidavits or offering evidence revealing the nature of the burden[;] [t]he court is not required to sift each interrogatory [or request] to determine the usefulness of the answer [or documents] sought”) (quotations omitted).

Additionally, defendant objected to certain demands on the basis of attorney-client privilege without providing a privilege log. For this reason, plaintiff has requested that the Court deem the attorney-client privilege waived. (See, e.g., Docket # 65 at ¶ 8). “[W]here parties invoking privilege produce belated and/or inadequate privilege logs, courts have discretion to determine whether to order production of the withheld documents or instead to direct the withholding party to submit an appropriate privilege log.” Certain Underwriters at Lloyd's v. Nat'l R.R. Passenger Corp., 2017 WL 1232526, *6 (E.D.N.Y. 2017). Exercising this discretion, I require defendant to provide a privilege log for productions (past and future) that complies the Western District of New York's Local Rules of Civil Procedure. See Loc. R. Civ. P. 26(d). If, upon review of the privilege log, plaintiff believes defendant has improperly invoked a privilege, he must confer in good faith with defendant's counsel; if such conferral does not resolve the dispute, he may move for an order compelling disclosure by the August 28, 2023 deadline for filing motions to compel (see Docket # 111).

Defendant appears at times to have cited the attorney-client privilege when in fact his objection or redaction is based upon security or confidentiality concerns. (Compare Docket # 71 at 6 (objecting to request for DOCCS's Prison Rape Elimination Act (“PREA”) policy, in part, on the grounds of attorney-client privilege) with Docket # 75-1 at 4 (arguing disclosure of some of the PREA information presents security risks)). Except as otherwise addressed below, to the extent defendant believes that security or confidentiality concerns justify the withholding or redacting of documents, defendant must, by June 26, 2023, supplement his discovery responses with a sworn affidavit explaining those concerns.[11] (See, e.g., Docket # 57 at 5 (response to Request No. 3)). Upon review of the affidavit, plaintiff may determine whether to challenge defendant's determinations. Any motion to compel must be made by no later than August 28, 2023. Having addressed these preliminary issues, I now turn to plaintiff's specific requests.

*7 Request No. 4 seeks all “all documentation regarding the DOCCS policy[ ] and practice regarding ‘separation orders’ ” – which plaintiff defines as orders that “that identif[y] certain prisoners[ ] as enem[ies] of each other[ ] and directs that they are to be separated from each other” (Docket # 43 at ¶ 4 (emphasis omitted)) – in response to which defendant provided DOCCS Directive # 4948, Protected Custody Status (see Docket # 57 at 6). Plaintiff contends that Directive # 4948 is insufficient because it relates to individuals placed into protective custody rather than the policy and procedure related to enemy lists. (See Docket # 65 at ¶ 10). Defendant supplemented his production, asserting that Directive # 4948 is the only relevant document and that he is unaware of any other responsive directive. (Docket # 71 at 5). Directive # 4948 does not explicitly refer to the circumstances authorizing or permitting use of an enemy or “keep away” list and the consequences of such a list. Therefore, by June 26, 2023, defendants must either confirm in writing no such responsive documents exist or make a supplemental production.

Request No. 16 seeks policies, procedures, and directives related to gathering evidence as part of a fight investigation. (Docket # 43 at ¶ 16). According to plaintiff, defendant produced the fight investigation sheet related to the November 24, 2019 incident and a “heavily redacted” DOCCS Directive # 4004, Unusual Incident Report, but failed to produce the requested policies and procedures relating generally to fight investigations. (Docket # 65 at ¶¶ 22-23; see also Docket # 60 at ¶ 16). Defendant failed to respond to plaintiff's arguments in his opposition to plaintiff's motion. Therefore, the Court directs defendant, by June 26, 2023, to produce responsive documents concerning the “policies, procedures, and directives to be followed by an officer, ... sergeant, l[ie]utenant, etc., when gathering evidence relative to a ‘fight investigation’ ” or confirm in writing that no such responsive documents exist. If defendant has already produced responsive documents, he must identify them by bates numbers. If defendant believes in good faith that disclosure would present undue security risks, he may submit a sworn affidavit, by no later than June 26, 2023, explaining the bases for the concerns.

As defendant notes, plaintiff previously informed him that his production in response to two of the policy-related demands were adequate, although plaintiff now challenges defendant's responses to those demands in the current motion to compel. As to Requests No. 5 and 6, the Court reiterates that the parties must confer before seeking judicial intervention. In light of this history, the Court directs the parties to confer about the specific documents plaintiff contends have been improperly withheld. (See Docket # 65 at ¶¶ 11, 12). No further motion to compel may be filed before the required conferral takes place.

Plaintiff's Requests No. 1 and 2 seek defendant's entire personnel file, including his job application; information and documents relating to his hiring and training; performance evaluations; disciplinary records and proceedings; complaints by other officers, prisoners, or civilians; and any Office of Special Investigations/Internal Affairs files regarding defendant. (Docket # 43 at ¶¶ 1, 2). Defendant initially provided some documents “to the extent [he deemed they] relate[ ] to this particular matter” (Docket # 57 at 4-5) and, after plaintiff filed the current motion, supplemented his production (Docket # 71 at 4-5). In his reply papers, plaintiff states that defendant provided previously withheld performance evaluations but that the production “is incomplete[ ] to the extent that[ ] defendant has failed to provide any[ ] and all mental health records” that “more than likely exist.” (Docket # 87 at ¶ 16).

Plaintiff seeks defendant's mental health records on the grounds that “defendant[’s] conduct towards plaintiff between the dates of 11/23/19 and 11/24/19, demonstrates that, he may have ‘anger issues,’ or other mental health issues, which influenced his conduct towards plaintiff.” (Docket # 65 at ¶ 7). The caselaw plaintiff relies upon in support of his position is inapposite. For example, in Gross v. Lunduski, 304 F.R.D. 136, 162 (W.D.N.Y. 2014), the plaintiff pled an excessive force claim with “very specific allegations, including corroborative medical documentation, [that] indicated that the sequence of events leading to [p]laintiff's injuries could well have resulted from [d]efendant's assaultive reaction[,] ... a response which could conceivably have been the product of [d]efendant's difficulty in anger control when confronted with an inmate's apparent affront to [d]efendant's authority.” In contrast, plaintiff here asserts a failure to protect claim, and plaintiff's request for defendant's mental health records (even assuming they exist in his personnel file) “are too attenuated from his claims to be discoverable” as “[a]ny connection between the issues raised in this litigation and unspecified mental health, stress or anger management issues of ... defendant[ ] is speculative at best.” Sileo v. Schuck, 2010 WL 811321, *3 (W.D.N.Y. 2010). Plaintiff's request for an order compelling defendant to produce mental health records within his personnel file is thus denied.

*8 Request No. 7 seeks the floor plan or cube layout for Groveland's Housing Unit K, K3 dormitory. (Docket # 43 at ¶ 7). Defendant has objected to this request as confidential and has provided Assistant Commissioner Mitchell's affidavit explaining that such information could be used to thwart internal security systems and take advantage of perceived weaknesses. (See Docket # 75 at 10). Courts generally deny requests for prison floor plans on the basis that disclosure presents significant security risks. See Allen v. Eckard, 2019 WL 1099001, *3 (M.D. Pa. 2019) (“many courts have emphasized the security risks that are apparent from an inmate-plaintiff possessing a floorplan or diagram of the inside of a prison”) (citing cases). I agree and find that defendant has sufficiently demonstrated a justifiable reason to withhold production of the K3 dormitory floor plan.

In the alternative, plaintiff requests appointment of counsel for the “purpose ... [of] record[ing] and tak[ing] photographs[ ] and measurements of the area where plaintiff[’]s physical attack occurred.” (Docket # 65 at ¶ 16 (emphasis omitted)). That request is denied; instead, by June 26, 2023, defendant shall permit plaintiff or an agreed-upon designee to take photographs of the relevant area; alternatively, defendant may confer with plaintiff about the requested photographs and elect to take and provide them to plaintiff. See Hill v. Payne, 2023 WL 2342892, *12 (W.D.N.Y. 2023) (requiring defendant to allow plaintiffs to inspect the property under appropriate supervision or elect to take and provide photographs).

Request No. 9 seeks statistics concerning the number of prisoner-on-prisoner assaults in housing units K1-3 from January 1, 2018 through November 25, 2019. (Docket ## 43 at ¶ 9 (originally requesting statistics from January 1, 2015 through December 13, 2019); 60 at ¶ 9 (modifying timeframe to January 1, 2018 through November 25, 2019)). In his supplemental production, defendant appears to have produced responsive documents from January 1, 2019 to November 13, 2019, but has failed without explanation to produce documents from January 1, 2018 to December 31, 2018. The Court directs defendant to produce the relevant documents from January 1, 2018 and December 31, 2018.[14]

Request No. 13 seeks the “misbehavior reports[ ] and subsequent disciplinary dispositions of [i]nmates Mardell Hall, ... Mark Rounds, ... [and] Brandon Anderson, ... relative to their assault on plaintiff.” (Docket # 43 at ¶ 13). Defendant has refused to provide any documents responsive to this request on the basis that they are irrelevant and disclosure would violate the privacy of others and pose a security and safety risk. (Docket ## 57 at 8; 75-1 at 4). Defendant is correct that the disciplinary dispositions related to the November 24, 2019 alleged assault do not appear relevant to plaintiff's claims that defendant failed to protect him. Cf. Farmer v. Brennan, 511 U.S. 825, 842-43 (1994) (“if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk”) (quotations omitted and emphasis added); Williams v. Murphy, 2015 WL 1971517, *2 (D. Conn. 2015) (“[a]lthough the objection by defense counsel ... on the ground of safety and security is reasonable, that legitimate concern cannot be allowed to stand in the way of the plaintiff's need to discover evidence pertinent to his claims[;] ... if plaintiff can prove that the defendants were on notice that [the attacking inmate] had previously assaulted other inmates, that will likely bolster, or at least be relevant to, his deliberate indifference claim”). The misbehavior reports, by contrast, may contain evidence relevant to the claims because they presumably reflect factual accounts of the assault. Therefore, the Court grants the request for production of the misbehavior reports and denies the request for the disciplinary dispositions relating to the November 24, 2019 alleged assault.

*9 Request No. 17 seeks documents in plaintiff's own file regarding his security classification. (Docket # 43 at ¶ 17). Plaintiff contends that this request encompasses an unredacted copy of his “enemy list” and his inmate overview sheet. (Docket ## 60 at ¶ 17; 65 at ¶ 24). In response, Assistant Commissioner Mitchell alleges that plaintiff's security classification and enemy list cannot be disclosed for safety and security reasons. (Docket # 75 at 11). The relevance of plaintiff's security classification, his inmate overview sheet, and the names of all individuals on plaintiff's keep away list is not clear. What does appear clearly relevant, however, is the presence or absence of any of the individuals who allegedly attacked plaintiff on plaintiff's “keep away” list prior to November 24, 2019. Therefore, by June 26, 2023, defendant is directed to produce a redacted copy of plaintiff's keep away list as of November 24, 2019, or to confirm in writing that a diligent search has been conducted and no responsive documents exist.

As stated above, because defendant has responded to plaintiff's June 20 Interrogatories, plaintiff's motion for an order compelling defendant's response is denied as moot. To the extent plaintiff's reply papers raise issues regarding the adequacy of the responses, the record does not reflect that the parties have conferred or attempted to confer before seeking judicial intervention. Moreover, having reviewed plaintiff's reply papers, I expect that the parties may be able to resolve some, if not all, of the issues upon conferral. Plaintiff's motion for an order compelling defendant to supplement his answers to the Interrogatories is denied without prejudice.

I offer some general guidance to assist the parties in their conferral. First, an interrogatory should not include argument (see, e.g., Docket # 52 at ¶ 7 (referring to the attack as vicious, readily visible, and loud)), and a challenge to the accuracy of an answer is not a basis for court intervention (see, e.g., Docket # 87 at ¶ 35). Second, although counsel's August 9, 2022 letter indicating defendant's intention to defer responding to the Interrogatories pending a decision on plaintiff's motion to amend was not justified, defendant in fact responded to the Interrogatories only two weeks after the agreed-upon deadline, and before the Court issued its decision on the motion to amend. On this record, defendant's delay does not appear to justify a finding of waiver of his objections. Plaintiff is correct, however, that defendant must serve sworn responses that comply with Rule 33(b). See, e.g., Nowlin v. Lusk, 2014 WL 298155, *9 (W.D.N.Y. 2014) (“Rule 33(b)(5) requires the [a]nswers be signed by the person making the answer and signed by counsel for any objections raised therein”).

In addition to requesting counsel for the limited purpose relating to Request No. 7, plaintiff's notice of motion states more generally that he seeks appointment of counsel. (Docket # 65 at 1). Construing plaintiff's motion liberally, the Court interprets it to include a request for a full-scope appointment of counsel. It is well-settled that there is no constitutional right to appointed counsel in civil cases. Although the court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C. § 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988), such assignment of counsel is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors to be considered in deciding whether to assign counsel include the following:

*10 Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).

The Court must consider carefully the issue of appointment of counsel because “every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must first look to the “likelihood of merit” of the underlying dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 877 F.2d at 174, and “even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the ... claim are thin and his chances of prevailing are therefore poor.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).

The Court has reviewed the facts presented herein in light of the factors required by law and finds, pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and Hodge v. Police Officers, 802 F.2d at 61-62, that the appointment of counsel is not warranted at this time. As stated above, a plaintiff seeking the appointment of counsel must demonstrate a likelihood of success on the merits. See id. Plaintiff has failed to do so at this time. Moreover, the legal issues in this case do not appear to be complex, and plaintiff has drafted a complaint and two amended complaints, filed motions supported by facts and caselaw, and communicated with the Court and counsel regarding his case. (See, e.g., Docket ## 1, 79, 60, 65). Plaintiff's conduct in prosecuting this matter strongly suggests that he is capable of understanding and handling the litigation. See McLean v. Johnson, 2017 WL 4157393, *1 (W.D.N.Y. 2017) (incarceration alone does not warrant the appointment of counsel). Finally, plaintiff's case does not present any special reasons justifying the assignment of counsel. On this record, plaintiff's request for the appointment of counsel (Docket # 65) is denied without prejudice at this time. It is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. See 28 U.S.C. § 1654.

B. Defendant's Motion to Compel

On or about July 28, 2022, plaintiff signed a release form[15] allowing defendant to receive plaintiff's medical information from June 2019 to June 2020. (See Docket # 72-1 at 4). On August 2, 2022, plaintiff sent counsel a letter rescinding his authorization. (Id. at 4-6). Defendant now seeks an order compelling plaintiff to permit defendant's use of the signed July 2022 HIPAA authorization form. (Docket # 72).

*11 Defense counsel contends that she made a good faith effort to confer with plaintiff by sending him a letter on September 14, 2022, contending that defendant should be able to obtain plaintiff's medical information in accordance with the signed HIPAA authorization. (Docket # 72-2 at 1 (referring to Docket # 67)). Upon review of the September 14, 2022 letter that was contemporaneously filed on the docket (Docket # 67), and defendant's representation that plaintiff never responded, the Court finds that defendant attempted to meet and confer and thus has satisfied his obligation under Rule 37(a).

In support of his motion, defendant argues that he is “entitled to obtain medical documents related to the [November 24, 2019] incident pertaining to both physical injuries, which [p]laintiff alleges in his complaint, and mental health records[,] ... as [plaintiff] claims he suffered and continu[es] to suffer from severe mental and emotional distress.” (Docket # 72-2 at 2). Although plaintiff concedes that defendant has “a right to discover medical records[ ] relative to the claims[ ] and injuries identified in the complaint,” he maintains that the signed release form authorizing disclosure of his health information from June 1, 2019 to June 1, 2020, is overbroad and that defendant has not demonstrated the relevance of medical information predating the alleged assault and unrelated information postdating the alleged assault. (Docket # 80 at ¶¶ 6, 7, 8 (emphasis omitted)). Plaintiff is willing, however, to sign a HIPAA authorization form allowing the release of his medical records from November 24, 2019 to January 1, 2020. (Id. at ¶ 11).

Contrary to disclosure of information about his physical condition and injuries, plaintiff opposes disclosure of any of his mental health records. (Id. at ¶¶ 14-21). He argues that he did not waive the psychotherapist-patient privilege by alleging that he suffered emotional distress and that he has asserted only garden variety mental distress damages, which do not put his mental health at issue. (Id. at ¶¶ 14-16, 20). To the extent this Court finds otherwise, plaintiff wishes to abandon his claim for emotional damages. (Id. at ¶ 21).

In his reply, defendant did not directly respond to plaintiff's willingness to execute a narrower HIPAA authorization. (See Docket # 85 at ¶ 2 (“[d]efendant is interested in obtaining medical records to know the nature, the timing and related further details about the physical injuries [p]laintiff allegedly claims he has suffered because of the alleged incident”)). In the absence of any argument by defendant as to why a broader release is justified, the Court denies defendant's request to use the July 2022 signed HIPAA release. However, defendant is directed to promptly provide plaintiff, and plaintiff is directed to promptly sign, a HIPAA release authorizing disclosure to defendant of plaintiff's medical records from November 24, 2019 to January 1, 2020.[16]

As to the scope of the emotional distress damages that plaintiff seeks, defendant argues that plaintiff has alleged severe and continuous mental and emotional distress[17] and that defendant is entitled to plaintiff's mental health records from June 1, 2019 to June 1, 2020, to obtain information about plaintiff's mental health status before and after the incident. (Id. at ¶ 3). “In this context, ‘garden variety’ refers to claims for compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of the challenged actions.” Morales v. Pepsi Co. Inc., 2018 WL 3853390, *4 (W.D.N.Y. 2018); see also Feltenstein v. City of New Rochelle, 2018 WL 3752874, *5 (S.D.N.Y. 2018) (“[t]hese allegations can be substantiated by [p]laintiff's testimony, through which she can describe her injury in vague or conclusory terms without relating either the severity or the consequence of the injury[;] [plaintiff's] allegations also lack the extraordinary circumstances warranting support by any medical collaboration, and thus, are garden-variety claims of emotional distress[,] ... [such that] she had not put her mental condition at issue, thus barring disclosure of the subject mental health records”).

*12 On this record, plaintiff has two options. To the extent that he seeks damages for non-garden variety emotional distress, including trauma and severe anxiety as alleged in his complaint (see n.17 supra), records reflecting mental health conditions and treatment would be relevant and discoverable, and he must promptly provide defendant's counsel a HIPAA authorization permitting his treatment providers, including mental health providers, to release his mental health records from June 1, 2019 to June 1, 2020. To the extent plaintiff wishes to confine his claim for damages to garden variety emotional distress damages only, plaintiff must submit to the Court, on or before June 26, 2023, a sworn affidavit attesting to the following representations:

See Morales v. Pepsi Co. Inc., 2018 WL 3853390 at *4.

C. Plaintiff's Second Motion to Compel

Plaintiff's second motion to compel (Docket # 127) relates to his September 20, 2022 Second Demand for Discovery (“September 20 Demands” or “Second Set of Demands”) (totaling twenty-four demands) (Docket # 70) and his October 4, 2022 Third Demand for Discovery (“October 4 Demands” or “Third Set of Demands”) (totaling ten demands) (Docket # 77). Plaintiff contends that defendant has willfully and unreasonably withheld responsive documents (Docket ## 89; 96; 127 at ¶ 3); defendant counters that plaintiff has sought documents that are either irrelevant or cannot be disclosed for security reasons (Docket # 138 at ¶ 6).[18]

On November 9, 2022, plaintiff sent defense counsel a letter regarding the alleged inadequacy of defendant's responses to plaintiff's Second and Third Sets of Demands. (Docket # 100). On November 22, 2022, counsel responded to plaintiff's letter by reasserting defendant's objections. (Docket # 102). Defendant does not contend that plaintiff failed to confer, and, upon review of plaintiff's letter, I find that plaintiff has complied with his obligation under Rule 37 to address discovery disputes with opposing counsel before seeking judicial intervention.

Plaintiff maintains that defendant has insufficiently responded to twelve of his September 20 Demands and five of his October 4 Demands. Defendant replies that those requests seek disclosure of irrelevant documents and other information that presents genuine security concerns.[19] (Docket # 138 at ¶ 6).

The Court finds that the following requests are irrelevant to the pending claims against defendant:

Although most of these demands appear to relate generally to events that occurred in the aftermath of plaintiff's alleged assault, the requested documents and information are nonetheless irrelevant to plaintiff's claims. See Fed. R. Civ. P. 26(b)(1) (“[p]arties 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, ... [and] the importance of the discovery in resolving the issues”). Additionally, the latter two requests resemble a “fishing expedition.” Plaintiff contends that he is entitled to Sergeant Hermann-Myers’ personnel file for reference during her cross-examination. (Docket # 127 at ¶ 18). He also maintains that he is entitled to documents concerning the employee critical incident stress management program on the grounds that defendant “did not respond well to” the “critical incidents” that plaintiff's reports posed. (Id. at ¶ 23). “Discovery requests cannot be based on pure speculation or conjecture.” Tottenham v. Trans World Gaming Corp., 2002 WL 1967023, *2 (S.D.N.Y. 2002). Plaintiff has not adduced evidence warranting inspection of Sergeant Hermann-Myers’ personnel file or disclosure of records relating to DOCCS's stress management program; in fact, plaintiff has alleged that defendant failed to protect him, not because he reacted poorly to a stressful situation, but because of defendant's hostility towards plaintiff based upon plaintiff's actual or perceived sexual orientation (see Docket # 79 at ¶ 52). See Pothen v. Stony Brook Univ., 2017 WL 1025856, *4 (E.D.N.Y. 2017) (“[a]lthough [p]laintiff may speculate[ ] that [such discovery] might reveal useful material, such speculation is not a basis for this [c]ourt to compel discovery”) (quotations omitted). The Court denies plaintiff's motion to compel with respect to these demands.

*14 The Court next addresses those requests to which defendant objects on the grounds of security concerns:

*15 To the extent that defendant has withheld documents or made redactions to materials produced in response to these demands, the Court instructs defendant, by June 26, 2023, to provide an affidavit fully explaining the bases for concluding that disclosure of the redacted or withheld documents presents an unacceptable security risk. If plaintiff is dissatisfied with that explanation, he must confer with counsel in a good faith attempt to resolve the dispute before filing another motion to compel.

I turn now to Requests No. 4, 5, and 22 of the Second Set of Demands and Requests No. 3 and 7 of the Third Set of Demands. Request No. 4 of the Second Set of Demands seeks the “master index” of records and documents maintained at Groveland. Defendant has stated that a master index does not exist; he has also objected to the request on the grounds that such request is irrelevant and overbroad. (Docket # 138 at ¶ 6(b)). I agree. Plaintiff is not entitled to a complete listing of every document maintained at the correctional facility to determine whether he wants to demand its production. The objection is sustained.

Request No. 5 of the Second Set of Demands seeks the complete disciplinary history and criminal conviction records of Mardell Hall, Mark Rounds, and Brandon Anderson. Defendant counters that the disciplinary and criminal histories of the named individuals “are completely irrelevant.” (Docket # 138 at ¶ 6(c)). I disagree in part. To the extent Hall's and Round's disciplinary and/or criminal histories reflect incidents of possession of weapons while incarcerated or incidents of threats or violence towards LGBTQ individuals – and defendant was aware of that history – the requested records may be relevant. Anderson's disciplinary and criminal history, by contrast, is not. Plaintiff has not alleged that Anderson threatened him prior to the attack or that defendant had reason to believe Anderson would assault plaintiff. By June 26, 2023, defendant must produce Round's and Hall's disciplinary and/or criminal histories to the extent they reflect incidents that occurred prior to plaintiff's alleged assault of weapons possession in jail and/or LGBTQ-related threats or violence, or confirm in writing that a diligent search has been conducted and responsive documents do not exist.[23] To the extent responsive documents are produced, they may be redacted as described, and plaintiff may not disclose those records or information to any other person absent permission from the Court.

Request No. 22 of the Second Set of Demands seeks unusual incident reports documenting the alleged assault against plaintiff and documents reflecting the subsequent investigation. Defendant contends that he has provided all responsive documents. (Docket # 138 at ¶ 6(i)). Plaintiff contends that defendant provided the fight investigation documents but not the unusual incident reports. (Docket # 127 at ¶ 16). By June 26, 2023, defendant shall identify by bates numbers the unusual incident reports produced. To the extent all responsive unusual incident reports have not been produced, by June 26, 2023, defendant shall produce all such reports or confirm in writing that a diligent search has been conducted and that no such documents exist.

*16 Request No. 3 of the Third Set of Demands seeks production of Directive # 2605, “Sexual Harassment in the Workplace.” Defendant asserts in his opposition to the motion that he “already provided a relevant directive to [p]laintiff.” (Docket # 138 at ¶ 6(n)). By June 26, 2023, defendant shall identify the responsive directive by bates number.

Request No. 7 of Third Set of Demands seeks an “ ‘unredacted copy of the photo array put together by [Groveland] Sgt. Bliss[ ] on 11/25/2019.’ (The photo array[ ] should be produced in color. Photos of any persons not directly involved in the physical assault upon plaintiff[ ] may remain redacted.).” Defendant has objected to the request on the grounds of relevancy and security concerns. (Docket # 138 at ¶ 6(o)). Whether or not a photographic array was prepared or used in the investigation of the fight does not appear relevant to plaintiff's claims. The objection is sustained. For the reasons stated above, plaintiff's second motion to compel is granted in part and denied in part.

II. Plaintiff's Motion for Sanctions

Plaintiff requests that the Court impose sanctions on defendant and his counsel for omitting certain documents from defendant's mandatory disclosures made pursuant to this Court's May 19, 2022 Scheduling Order. (Docket # 91). The omitted documents include: (1) the transcript of plaintiff's disciplinary hearing; (2) confidential information the hearing officer received (which plaintiff alleges is recorded on tape # 19-333-2); and (3) memoranda prepared by Sergeant Bliss regarding his interview with a confidential informant about a photographic array dated November 25, 2019. (Id.).

Defendant does not appear to dispute that the Court's May 19, 2022 scheduling order required disclosure of these documents. (See also Docket # 44 (requiring defendant to provide copies of “any documents prepared by any employee of the State of New York[ ] ... in connection with the events from which plaintiff's claims arose including[ ] ... intra departmental memoranda, ... witness statements, ... and transcripts of disciplinary hearings”)). Instead, counsel represents that she did not have the hearing transcript at the time of the initial disclosures and subsequently chose to “hold the additional [R]ule 26 disclosures and serve them as part of [defendant's October 20, 2022] response to the [p]laintiff's second discovery demands, as [p]laintiff's second discovery demands included a demand for [the] hearing transcript.” (Docket # 98 at ¶¶ 8, 9). The record suggests that counsel received the disciplinary hearing transcript by mid-September. (Id. at ¶ 8 (“[a]fter obtaining [the] relevant hearing transcripts, I was planning to provide [a] supplemental response to [d]efendant's Rule 26 disclosures[;] [h]owever, I was preoccupied in obtaining documents to respond to [p]laintiff's additional demands[;] [a]lso at that time, on September 13, 2022, [p]laintiff filed his motion to compel discovery[,] and I knew that I would be required to file a response to the motion to compel in addition to the substantive discovery responses”)). Although counsel should have promptly supplemented the Rule 26 disclosures, I do not find that counsel's delay warrants sanctions. See Huebner v. Midland Credit Mgmt., Inc., 897 F.3d 42, 53 (2d Cir. 2018) (“[Rule 16(f)] vests a district court with discretion to impose whichever sanction it feels is appropriate under the circumstances”) (internal quotations omitted), cert. denied, 139 S. Ct. 1282 (2019).

*17 As for the transcript and other documents relating to confidential information that the hearing officer received, counsel asserts that “[s]uch hearing record includes information about other incarcerated individuals who provided testimony in protective cover and disclosure of such information would create security risks to the lives of such other incarcerated individuals, general population of the facility and to the security staff.” (Docket # 98 at ¶ 11). The Court's scheduling order permitted defendant to withhold production of documents if he in good faith believed disclosure of them “may disrupt or interfere with prison discipline or procedures.” (Docket # 44). Defendant must submit, by June 26, 2023, a sworn affidavit containing a fuller explanation of the security concerns implicated by disclosure. Following review of the explanation, if plaintiff wishes to pursue disclosure, he should confer with counsel and, if they are unable to resolve the dispute, he may file a motion to compel.

As to the memoranda authored by Sergeant Bliss, counsel asserts that “in [defendant's] response to [p]laintiff's second discovery demands, [he] clearly indicated that [he] ... already provided every document relative to this request with his initial disclosures and that no further documents or emails exist.” (Docket # 98 at ¶ 13 (citing Docket # 89)). The Court directs defendant, by June 26, 2023, to identify the responsive documents by bates numbers. On this record, the Court declines to impose sanctions.

III. Defendant's Motion for Protective Order

Defendant seeks a protective order relieving him of any obligation to respond to plaintiff's Second Rule 36 Requests for Admissions (totaling twenty requests) (Docket # 120), Second Set of Rule 33 Interrogatories (totaling ten interrogatories) (Docket # 122), and Fourth and Supplemental Rule 34 Demands for Discovery (totaling three demands) (Docket ## 123, 126), or to supplement his production in response to plaintiff's Second Motion to Compel (Docket # 127). Defendant generally opposes further responses on two bases: (1) defendant has already provided plaintiff with an extraordinary amount of discovery and plaintiff's requests amount to harassment and intimidation; and (2) plaintiff's requests are improper and constitute a fishing expedition.[24] (See Docket # 131-1).

As to the amount of discovery, I note that plaintiff has served a total of fifty-four document demands, twenty interrogatories, and one hundred and twenty requests for admissions. (Docket ## 43 (seventeen document demands); 52 (ten interrogatories); 70 (twenty-four document demands); 77 (ten document demands); 112 (one hundred requests for admissions); 120 (twenty requests for admissions); 122 (ten interrogatories); 123 (two document demands); 126 (one document demand)). With respect to the fifty-four document demands, this Court has narrowed many of the contested demands made in plaintiff's first and second motions to compel.[25] Plaintiff's supplemental requests, which are before the Court as part of defendant's motion for a protective order, propound only three additional demands. As for plaintiff's interrogatories, he has propounded twenty questions out of the permissible twenty-five. See Fed. R. Civ. P. 33(a)(1). By contrast, even though plaintiff already has served one hundred requests for admissions, he seeks to serve an additional twenty requests, albeit directed at issues different from those in the first one hundred requests.

With respect to the three additional document demands at issue, plaintiff requests: (1) Facility Operations Manual (“FOM”) # 216, which plaintiff alleges relates to supervision in the Groveland housing units (Docket # 140 at ¶ 38); (2) DOCCS Directive # 4006, Reporting Incarcerated Individual Attitude and Behavior; and (3) DOCCS model training instructions for corrections officers. (Docket ## 123, 126). Defendant asserts that he already provided plaintiff with Directive # 4006 (Docket # 144 at ¶ 11) – which plaintiff disputes (Docket # 140 at ¶ 39) – and that FOM # 216, which defendant admits refers to dormitory unit procedures (Docket # 144 at ¶ 11), and the model training instructions are irrelevant or not in defendant's possession. (Id.). Defendant also urges that

(Id. at ¶ 12).[26]

Plaintiff's request for FOM # 216 appears duplicative of plaintiff's Requests No. 3 and 6 in the May 9 Demands (Docket # 43 at ¶¶ 3, 6 (seeking unredacted portions of employee training manual addressing supervision of housing units and policies and directives concerning supervision of housing units in medium security facilities)), and the request for model training instructions appears duplicative of plaintiff's Request No. 3 in the May 9 Demands (Id. at ¶ 3 (seeking NYS DOCCS Employee Training Manual)) and Request No. 2 in his Third Set of Demands (Docket # 77 at ¶ 2 (seeking Groveland Employees Orientation Manual)).

On this record, defendant's motion for a protective order with respect to the remaining three document demands is denied in part and granted in part. I agree that defendant need not respond to plaintiff's newer demands, although he must review his responses to the prior demands to confirm that he has previously produced all responsive documents or specifically objected to their production. As defendant represents he has already provided a copy of Directive # 4006, by June 26, 2023, he must identify that document by bates number.

With respect to plaintiff's Second Set of Interrogatories, defendant argues that the questions are unclear and do not “clearly spell[ ] out ... what information he is trying to obtain.” (Docket # 131-1 at ¶ 10). Defendant observes that the interrogatories: “[include] set[s] of facts that [p]laintiff himself believes, [and are] argumentative, overly broad and [improperly require] [d]efendant to adopt assumptions.” (Docket # 144 at ¶ 9). Many of plaintiff's interrogatories are indeed argumentative and predicated on disputed facts. (See, e.g., Docket # 122 at ¶ 1 (“explain in writing, how, if [defendant] was actually in [the] K3-dorm making rounds, he did not see[ ] or hear for five (5) through eight (8) minutes, plaintiff being gang assaulted in the middle of the dorm, by three (3) inmates, and then chased to the front of the dorm[ ] by an inmate w[ie]lding a mop wringer”); id. at ¶ 4 (“why, on the date of 11/23/2019, and after being informed by plaintiff that[ ] inmate Mardell Hall was in possession of a weapon[ ] (scalpel)[ ] that he threatened to cut plaintiff with, [defendant] did not contact his area supervisor with the information[ ] that had been shared with him[ ] in an effort to bring about the disarming of inmate Mardell Hall and protect plaintiff”); id. at ¶ 5 (“why, after being well informed of the risks to plaintiff[’]s safety[ ] and physical well[-]being, [defendant] did not contact his area supervisors with the information, and instead ignore[d] the threats[ ] and risks to plaintiff[’]s safety”); id. at ¶ 6 (“explain why, [a]fter being confronted with information suggesting that plaintiff was at risk of imminent assault, and serious, and permanent physical injuries, he did not act to prevent an assault on plaintiff from occur[r]ing, but instead, responded to plaintiff, as identified at paragraphs 15-18 of the Second Amended Complaint”)). Defendant need not respond to such interrogatories. See, e.g., E*Trade Fin. Corp. v. Deutsche Bank, AG, 2006 WL 3267267, *1 (S.D.N.Y. 2006) (“[t]o the extent that [p]laintiffs seek long narrative explanations of underlying assumptions and methodologies, they have not shown that interrogatories are a more practical means of discovery than depositions”); Donald William Fairbanks Architect, P.C. v. Fairfield Cnty. Contractors LLC, 2014 WL 7271933, *4 (D. Conn. 2014) (not requiring further answers to questions that request defendant to “prove a negative” or are argumentative). Interrogatory No. 2 is also objectionable on the grounds that it is vague, and defendant need not answer it. See, e.g., Docket # 122 at ¶ 2 (“explain, and set forth in writ[ ]ing, and in detail, [defendant's] theory of events, regarding the occur[r]ences between [November 23 and November 24]”). Additionally, Interrogatory No. 10, which inquires about the number of unusual incidents that took place in Groveland Dorms K-1-K3, is similar to, but more expansive than, plaintiff's Request No. 9 in the May 9 Demands, which sought documents reflecting the number of prisoner-on-prisoner assaults in the dorms during the same time period. (Docket # 43 at ¶ 9). Defendant need not respond to the expanded request (Interrogatory No. 10).

*19 Defendant must, however, respond to Interrogatories Nos. 7, 8 and 9, which seek an explanation of the factual bases supporting certain affirmative defenses asserted by defendant. “[C]ourts do not typically compel responses to interrogatories that seek a catalog of all facts or all evidence that support a party's contentions” but often “requir[e] parties to explain the factual bases for their contentions by providing the material facts upon which they will rely, but not a detailed and exhaustive listing of all of the evidence that will be offered.” Linde v. Arab Bank, PLC, 2012 WL 957970, *1 (E.D.N.Y. 2012); Nimkoff v. Dollhausen, 262 F.R.D. 191, 195 (E.D.N.Y. 2009) (requiring defendants to specify the facts upon which they seek to support their [affirmative] defense). Plaintiff's interrogatory requests for identification of witnesses and documents defendant may rely on in support of those affirmative defenses mirror a party's legal obligations under Rule 26(a)(1)(A) and must also be answered. Defendant shall also answer Interrogatory No. 3 requesting a description of the actions a corrections officer should take when he or she is informed that an incarcerated person possesses a weapon or dangerous instrument.

The Court grants defendant's request for a protective order as to plaintiff's second requests for admissions. Not only has plaintiff previously propounded an extraordinary number of requests for admissions in this relatively non-complex lawsuit, see Galgano v. Cnty. of Putnam, 2021 WL 3159844, *1 (S.D.N.Y. 2021) (“[c]ourts routinely disallow requests for admission that run into the hundreds on the grounds that they are abusive, unreasonable, and oppressive”) (quotations omitted); McLean v. Gutierrez, 2018 WL 6118615, *3-4 (C.D. Cal. 2018) (“[w]hile Rule 36 places no limit on the number of RFAs which may be propounded by either litigant, courts have found that propounding an excessive number of RFAs may amount to inappropriate conduct[;] ... a protective order ... is particularly warranted given the remaining excessive force claim stems from one isolated incident between plaintiff and defendant”); see also Versatile Housewares v. SAS Grp., 2010 WL 11601225, *1 (S.D.N.Y. 2010) (“[t]he [c]ourt is invested with substantial discretion under Rule 36 ... to determine the propriety of plaintiff's requests”) (quotations omitted), but the majority of the second set of requests appear either improper or unlikely to narrow the issues in this matter (e.g., they request admissions concerning whether particular documents in the record contain certain statements and admissions concerning compound factual assertions), see, e.g., Hill v. Payne, 2022 WL 875924, *8 (W.D.N.Y.) (“the facts stated within [a request for admission] must be singularly, specifically, and carefully detailed[;] ... [m]any of [plaintiff's] requests do not meet this standard; rather, they ... embrace compound subjects, actors, events and assertions”) (internal quotations and brackets omitted), report and recommendation adopted by, 2022 WL 875160 (W.D.N.Y. 2022); K.C.R. v. Cnty. of Los Angeles, 2014 WL 3433772, *3-4 (C.D. Cal. 2014) (“[w]here requests for admission do not narrow the range of issues for trial but are unreasonably cumulative and duplicative of other discovery taken in the case, the requests do not serve the purpose of Rule 36(a) and are properly subject to objection[;] ... [r]equests asking [a party] to admit that a report or letter includes a particular quoted passage are improper”); Hood v. S. Whidbey Sch. Dist., 2013 WL 1898214, *2 (W.D. Wash. 2013) (“[t]he RFAs ask the [defendant] to confirm the contents of documents, a wholly useless exercise[;] ... [t]he vast majority of the RFAs would appear to have little or no value in advancing this litigation to a resolution”), aff'd, 605 F. App'x 665 (9th Cir. 2015).

Finally, defendant asks for a protective order restricting plaintiff from serving any additional demands absent advance permission from the Court. (Docket # 131-1 at ¶ 19). The Court declines to do so at this time, but expects that the parties will concentrate their efforts on producing and addressing the discovery requests that are the subject of this decision. Given the substantial discovery that has been requested by plaintiff – both in terms of the number and the scope of the demands served – the Court expects additional discovery requests, if any at all, will be very limited in number and narrow in scope. Therefore, the Court grants in part and denies in part defendant's motion for a protective order.

*20 Defendant moves the Court to dismiss plaintiff's complaint for failure to prosecute under Rules 37 and 41(b) of the Federal Rules of Civil Procedure. (Docket # 141). Defendant bases his motion on plaintiff's “continuous[ ] refus[al] to authorize [defendant] access to his medical records” and plaintiff's conduct during his deposition, which allegedly included “fail[ing] to respond to questions” and prematurely and abruptly departing “without any prior notification.” (Docket ## 141-1 at ¶ 3; 141-2 at 4). Likely in anticipation of defendant's motion, plaintiff wrote a letter to the Court detailing his perspective on the deposition, which the Court received the same day that defendant's motion was filed.[27] (See Docket # 142).

I find that denial of defendant's motion to dismiss is warranted both on procedural and substantive grounds. On April 7, 2023, this Court entered an Order prohibiting the parties from filing any further motions, with limited exceptions, until it issued a decision on the nine pending motions. (Docket # 137). Two weeks later, without seeking or obtaining permission, defendant filed the pending motion to dismiss.[28] (Docket # 141). Because defendant violated this Court's Order by filing the motion without authorization, it should be denied on procedural grounds.

Denial of defendant's motion to dismiss is also justified for substantive reasons. Defendant has moved for dismissal pursuant to Rules 37 and 41(b) for failure to prosecute. Rule 37 permits dismissal where a party “fails to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Despite citing Rule 37(b), defendant has not specified how plaintiff's conduct allegedly violated a court order, nor has he cited caselaw for the proposition that Rule 37 authorizes dismissal for failure to prosecute, which is defendant's articulated justification for the requested dismissal order. (See Docket # 141-1 at ¶¶ 1, 12). Cf. Heendeniya v. St. Joseph's Hosp. Health Ctr., 830 F. App'x 354, 357-58 (2d Cir. 2020) (summary order) (acknowledging that Rules 37 and 41(b) have common factors but differentiating between failure to prosecute and failure to comply with discovery orders). Therefore, I recommend that the district court deny defendant's motion pursuant to Rule 37.

Rule 41(b) dismissal “is the harshest of sanctions and is properly used only in extreme situations.” Id. at 357 (quotations omitted). In considering such a request, a court should assess: (1) whether the plaintiff's failure to prosecute caused a delay of significant duration; (2) whether plaintiff was given notice that further delay would result in dismissal; (3) whether defendant is likely to be prejudiced by further delay; (4) the balance between the court's interest in managing its docket with plaintiff's interest in receiving a fair chance to be heard; and (5) the efficacy of lesser sanctions. U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). The first factor “breaks down into two parts: (1) whether the failures to prosecute were those of the plaintiff, and (2) whether these failures were of significant duration.” Id. at 255.

*21 As it pertains to the release of his medical records, and for the reasons described above, I do not find that plaintiff revoked his prior authorization in bad faith. Significantly, on October 13, 2022, plaintiff communicated his willingness to sign a more limited HIPAA release form in connection with his opposition to defendant's motion to compel. (Docket # 80 at ¶ 11). Defendant chose not to respond to this proposed compromise.[29] On this record, which includes the Court's approval of the more limited release, I do not find that plaintiff's rescission of the signed release evidences a disinterest in this litigation or amounts to a failure to prosecute or gamesmanship.

As for the deposition, defendant's accounting of what transpired is not supported by review of the transcript itself. According to counsel, plaintiff was “evasive,” refused to answer many of the questions, was unwilling to follow instructions, ranted, and became argumentative. (Docket # 141-1 at ¶¶ 4, 5). Assistant Attorney General Matthew Brown[30] intervened and, as characterized by counsel, “reminded [p]laintiff [of] the meaning of the deposition and the expectations” and requested plaintiff to calm down, but plaintiff was “not willing to listen” and “abruptly departed” the deposition “without any prior notification.” (Id. at ¶¶ 5, 9).

To the contrary, although the transcript shows that plaintiff made “speaking” objections and questioned counsel about the basis of some of the questions and exhibits, plaintiff ultimately answered all of counsel's questions with some redirection. (See, e.g., Docket # 141-1, Ex. A at 33 (noting his objection while acknowledging that he would have to answer); id. at 37-38 (arguing that questions about past injuries were irrelevant but affirming he had been injured); id. at 36-43 (raising concerns about counsel's inherent suggestion that plaintiff engaged in “violent conduct” but ultimately answering the questions)). Plaintiff's conduct, while not exemplary, hardly exhibits such a lack of cooperation as to equate to a “failure to participate in discovery” or an “abandonment” of his claims. (See Docket # 141-2 at 4, 5).

The deposition concluded following a disagreement between plaintiff and Ms. Halliyadde about plaintiff's desire to answer more expansively one of counsel's questions.[31] Mr. Brown interjected that plaintiff's “understanding of how a ... deposition works [was] completely wrong[,] [a]nd [that] if [plaintiff] continue[d] in this manner, [defendant would] cut th[e] deposition off and move to dismiss the case.” (Docket # 141-1, Ex. A at 56). The deposition transcript, through the use of ellipses, suggests that plaintiff and Mr. Brown began speaking at the same time, at which point Mr. Brown stated, “Let me finish speaking. You shut up. Let me finish speaking.” (id.) – language that counsel's declaration conveniently omits. (See Docket # 141-1 at ¶ 5). Counsel's intemperate and inappropriate command unsurprisingly prompted plaintiff to object to being treated disrespectfully and to indicate that he was done answering questions. (Id.). After Mr. Brown told plaintiff to control himself, “be quiet,” and that plaintiff “need[ed] to leave” (id. at 58), plaintiff responded that he would seek sanctions against Mr. Brown, to which Mr. Brown twice mocked, “You're making me laugh” (id. at 59). Mr. Brown eventually declared, “All right. We're cancelling this deposition and we're moving ... to dismiss. That's enough.” (Id. at 59-60).

*22 This record reveals that both sides became argumentative and disrespectful. Although plaintiff stated that the deposition was over several times (id. at 56),[32] it was Mr. Brown who first threatened to terminate the deposition, and he who in fact ended it less than an hour after it began (Docket # 141-1, Ex. A at 56, 59-60). On this record, counsel plainly bears responsibility, along with plaintiff, for the suspended deposition, and it would be unduly harsh to punish plaintiff by ordering dismissal of his action.[33] As stated, dismissal is an extreme sanction, and alternative remedies are appropriate. Accordingly, I recommend that that the district court deny defendant's motion to dismiss for failure to prosecute.[34]

In the alternative, defendant requests that the Court: (1) issue an order compelling plaintiff to complete his deposition; (2) provide instructions to plaintiff regarding appropriate deposition conduct and possible sanctions – including dismissal – for failure to comply; (3) stay the proceedings until the deposition has been completed and plaintiff has produced any documents requested during the deposition; and (4) order plaintiff to reimburse defendant for the deposition costs. (Docket # 141-2 at 6-7). This Court orders the parties to complete the deposition by July 14, 2023. The Court denies defendant's request for an order requiring plaintiff to reimburse deposition costs and/or staying the proceedings.

Some guidance on appropriate deposition conduct is appropriate. While review of the transcript indicates that plaintiff ultimately answered defendant's questions, the path to those answers was often unnecessarily circuitous or contentious. If a question calls for and may be answered with a “yes” or “no,” the deponent must answer the question in that fashion; if plaintiff believes that it cannot be answered that way, he must respond that it cannot be answered in such a fashion and concisely explain why not. Plaintiff must answer only the question that is being asked without volunteering information that has not been asked for. In other words, if a question asks what was said in a conversation, the answer should not include a description of events. (See, e.g., Docket # 141-1, Ex. A at 52-53). And, defense counsel must reasonably allow plaintiff to complete his answer to the question asked.

To the extent that plaintiff believes that a question is objectionable – for example, because it seeks irrelevant or inadmissible testimony – he should concisely note the objection in a nonargumentative manner – such as, “objection, relevance” – and answer the question.[35] See Fed. R. Civ. P. 30(c)(2) (“[a]n objection at the time of the examination ... must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection”). Defendant is not required to explain the relevancy of the question or explain how plaintiff's answer may be used in the case.

*23 This Court expects the parties and counsel to adhere to the Federal Rules of Civil Procedure, the Court's guidance offered herein, and the applicable rules summarized above, as well as general rules of civility. Failure of either side to abide by applicable rules and standards of civility may result in the imposition of sanctions, including case dispositive sanctions, financial sanctions, or other appropriate sanctions. See Fed. R. Civ. P. 30(d)(2) (“[t]he court may impose an appropriate sanction – including the reasonable expenses and attorney's fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent”).

For the reasons stated above, plaintiff's motions for conferences and to extend page limits (Docket ## 104, 105, 139) are DENIED and the parties’ motions to compel (Docket ## 65, 72, 127) and defendant's motion for a protective order (Docket # 131) are GRANTED in part and DENIED in part. As directed herein, defendant is instructed to provide or supplement his discovery responses by June 26, 2023. Plaintiff is directed to promptly provide defendant with a revised HIPAA release regarding his medical records and either promptly provide his treating providers authorization to release his mental health records to defendant or, by June 26, 2023, submit a sworn affidavit withdrawing any claim for non-garden variety emotional distress damages as further directed herein. The parties are directed to complete plaintiff's deposition by July 14, 2023. In addition, plaintiff's motion for the appointment of counsel (Docket # 65) is DENIED without prejudice at this time. It is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. Further, plaintiff's motion for sanctions (Docket # 91) is DENIED.

I further recommend to the district court that defendant's motion to dismiss (Docket # 141) be denied.

Finally, I lift the stay imposed by this Court's order dated April 7, 2023 prohibiting the parties from filing further motions or requests for relief, or propounding additional discovery requests, until the Court rendered a decision on the pending motions addressed herein. (Docket # 137).

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed. R. Civ. P. 72(b), 6(a) and 6(d) and Local Rule 72(b).

The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for the Western District of New York, “written objections ... shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72(b), or with the similar provisions of Rule 72(a) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.

*24 Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.

IT IS SO ORDERED.