*1 Plaintiff Robert Adams, III, filed this action against Corrections Officer Justin Taylor pursuant to 42 U.S.C. § 1983, alleging that his First, Eighth, and Fourteenth Amendment rights were violated while incarcerated at the Groveland Correctional Facility (“Groveland”) in November 2019. (Docket # 79 (second amended complaint)). The following discovery-related motions are currently pending before this Court: (1) defendant's motion for reconsideration of this Court's order requiring defendant to allow the taking of, or otherwise provide, photographs of the location of plaintiff's alleged attack and to produce a redacted version of plaintiff's “keep away” list (Docket # 170); (2) plaintiff's motion for an extension of time for photographs to be taken (Docket # 169); (3) plaintiff's motion for miscellaneous relief as it relates to his requests for admission (Docket # 172); (4) plaintiff's motion for sanctions and an order to compel relating to his first, second, and third sets of discovery demands and second set of interrogatories (Docket # 223); (5) plaintiff's motion for sanctions and an order to compel relating to his first and second sets of interrogatories and combined discovery demands and interrogatories (Docket # 231); (6) plaintiff's motion to strike various documents produced during discovery (Docket # 240); (7) defendant's motion for an extension of time to complete discovery (Docket # 254); and, (8) plaintiff's letter motion requesting an extension of the deadline for filing dispositive motions (Docket # 255). Also pending is defendant's motion to strike a conferral letter from the docket and to dismiss the action in its entirety. (Docket # 205). These motions are addressed below.

I. Motion for Reconsideration

A. Photographs

In its May 26, 2023 Decision and Order, the Court addressed the parties’ dispute regarding plaintiff's discovery request for the floor plan or cube layout of Groveland's Housing Unit K, K3 dormitory. (Docket # 150 at 16-17). After balancing the parties’ interests, the Court ordered defendant to “permit plaintiff or an agreed-upon designee to take photographs of the relevant area.” (Id.). Alternatively, the Court indicated that “defendant [could] confer with plaintiff about the requested photographs and elect to take and provide them to plaintiff.” (Id. at 17).

Since the Court issued its decision, the parties have filed at least nine submissions concerning the photographs. (See, e.g., Docket ## 166, 169, 170, 171, 179, 181, 186, 187, 193). Rather than first conferring, plaintiff immediately returned to the Court advising that he wishes to take the photographs himself[1] and requesting that the Court direct counsel to make the necessary arrangements with DOCCS to take thirteen photographs according to directions he provided.[2] (Docket # 166 at 1). Plaintiff also filed a motion seeking an extension of time for the photographs to be taken. (Docket # 169).

*2 In addition to responding to plaintiff's filings, defendant has moved for reconsideration of this Court's decision to compel photographs, offering little more than was previously provided in his original opposition to the discovery demand. Appended to his motion for reconsideration is an affidavit from Colonel Nathanial D. Gilles, Director of Corrections Emergency Response Team Operations, which states that (1) the proposed photographs pose security risks; (2) there is a greater incentive for inmates to escape from Groveland – a medium security prison – than from a county jail; (3) inmate possession of such photographs is against DOCCS's rules; and, (4) plaintiff's history proves that he is a danger to other incarcerated individuals and the public. (Docket # 170 at 1-4; see also Docket # 75 at 10 (submitting Declaration of Assistant Commissioner for Correctional Facilities objecting to the initial demand for floor plans on grounds that such information can be used to “thwart ... internal security systems and take advantage of any perceived weaknesses” and generally poses security risks to other incarcerated individuals and staff if disclosed)).

Defendant further argues that plaintiff's highly specific demand letter and overbroad interpretation of the relevant area demonstrates that plaintiff is misusing discovery for the purpose of circumventing security protocols. (Docket # 170-3 at 4-5). Although plaintiff strongly disagrees with defendant's contentions, plaintiff offers various proposals to alleviate defendant's security concerns. (Docket # 186 at 1-2 (suggesting that the requested discovery be produced only to the Court and to plaintiff's corrections counselor, who would provide plaintiff the opportunity to review them); Docket # 187 at 1 (advising that plaintiff's compromise is only offered in the event the Court “accepts defendant's conclusory argument that[ ] plaintiff should not be in possession of the requested photographs”)).

Plaintiff's allegations and descriptions of events (see, e.g., Docket # 181), along with defendant's assertion that he was conducting rounds during the alleged attack (see Docket # 237-2 at 7), indicate that most of the requested photographs are reasonably related and relevant to plaintiff's claims and the disputed facts. The Court directs that a non-defendant Groveland official take the photographs in accordance with the directions provided by plaintiff in Docket # 166, except that requested photographs 4, 6, and 8 need not be taken because plaintiff alleges that the assault that defendant failed to prevent occurred in the dormitory and not the bathroom, and both parties agree that defendant was not at the security post when it occurred. Defendant shall thereafter make arrangements for plaintiff to view the photographs in a secure location by no later than February 16, 2024; plaintiff may not retain possession of them, but defendant must retain the photographs in the event plaintiff wishes to offer them into evidence or otherwise use them in this litigation. In addition, defendant shall file an affidavit by no later than February 23, 2024, confirming that the photographs were taken, made available for plaintiff's review, and retained by defendant for possible future use in this litigation.

Accordingly, defendant's motion for reconsideration is granted in part and denied in part. Because this Court has set a new deadline, plaintiff's motion for an extension of time for the photographs to be taken is denied as moot.

B. Keep Away List

Defendant's motion for reconsideration also challenges this Court's directive that defendant produce a redacted copy of plaintiff's “keep away” list as of November 24, 2019, reflecting the presence or absence of the individuals who allegedly attacked plaintiff. (Docket # 150 at 18-19). The affidavit of Colonel Gilles states that such disclosure would create a safety and security risk because the keep away list is confidential. (Docket # 170 at 3, ¶ 9). He further affirms that Mardell Hall, Mark Rounds, and Brandon Anderson were not on plaintiff's keep away list on or before November 24, 2019. (Id.).

Although the affidavit provides the information sought, it does not specifically comply with the Court's directive, which accounted for the safety and security concerns presented in opposition to plaintiff's original motion to compel by authorizing production of a redacted copy of the keep away list.[3] Defendant has not provided substantive information that the Court did not consider in arriving at its prior conclusion and is therefore not entitled to reconsideration. Consistent with the May 26 Decision and Order, defendant is directed to provide a redacted copy of plaintiff's keep away list on or before February 16, 2024.

II. Plaintiff's Requests for Admission

*3 Plaintiff served defendant with one hundred requests for admission. (Docket # 112). After defendant responded (Docket # 119) and plaintiff unsuccessfully attempted to confer (Docket # 135), plaintiff filed the pending motion regarding the sufficiency of many of defendant's responses. (Docket # 172). One day after plaintiff filed his motion, defendant filed supplemental responses to the requests for admission. (Docket # 176). Although the supplemental responses appear to have remedied some of the disputes, plaintiff persists in his challenges to over forty of defendant's answers.[4] Plaintiff asks the Court to require supplemental responses, deem certain matters admitted, and impose sanctions based on counsel's alleged false certification and failure to respond to the conferral letter. (Docket ## 172, 217).

Rule 36 of the Federal Rules of Civil Procedure permits a party to serve a written request for another party to admit the truth of a matter relating to the facts of the case, application of law to fact, or opinions about either. “The purpose of the rule is to reduce the costs of litigation by eliminating the necessity of proving facts that are not in substantial dispute, to narrow the scope of disputed issues, and to facilitate the presentation of cases to the trier of fact”; it is not “a discovery device.” T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 42 (S.D.N.Y. 1997).

An answer to a request for admission (“RFA”) must take the form of an admission, a specific denial, or a detailed explanation as to why the answering party cannot truthfully admit or deny the matter asserted. Fed. R. Civ. P. 36(a)(4); see also Holloway v. City of New York, 2023 WL 6614599, *3 (E.D.N.Y. 2023). Rule 36 permits “a party [to] deny a request for admission without giving any further explanation,” Dentsply Int'l Inc. v. Dental Brands for Less LLC, 2017 WL 11567699, *1 (S.D.N.Y. 2017), if the party has a “reasonable ground to believe that it might prevail on the matter,” Ohio Cas. Ins. Co. v. Twin City Fire Ins. Co., 2020 WL 1698593, *3 (E.D.N.Y. 2020) (citing Fed. R. Civ. P. 37(c)(2)). In other words, although a party may dispute whether reasonable grounds for a denial exist, a party is not “required to accept even ... uncontradicted deposition testimony or declarations of hostile or interested witnesses as true.” Id. at *4.

With respect to lack of knowledge responses, Rule 36 provides:

Fed. R. Civ. P. 36(a)(4). See also Holloway v. City of New York, 2023 WL 6614599 at *3. Of course, “[w]hat constitutes both a ‘reasonable inquiry’ and information that is ‘readily obtainable’ by the party will necessarily vary from case to case.” Jacobson Warehouse Co. v. Prestige Brands, Inc., 2022 WL 1617711, *7 (S.D.N.Y. 2022). Moreover, the Court has substantial discretion under Rule 36 to determine which responses to RFAs are proper. Id.

Defendant initially denied many of plaintiff's RFAs. (See Docket # 119). Plaintiff challenged many of those denials on the grounds that defendant did not have personal knowledge of the matter asserted or that no evidence existed in the record to support a denial. (See, e.g., Docket # 172 at 3-4, 6-7). Defendant thereafter revised many of his denials to state that he lacked sufficient information to admit or deny the matter alleged. (See Docket # 176). In his reply papers, plaintiff persists in asserting that the defendant has inadequately responded to such requests – now on the basis that the revised answers lack a description of the actions taken by defendant to conduct a reasonable inquiry and a statement that such inquiry was insufficient to allow him to admit or deny the request. (Docket # 217 at 3, ¶ 11).

*4 Defendant has revised many of the RFAs that he originally denied to indicate that he lacks sufficient information to admit or deny. He has not, however, described his inquiries or, in most cases, why he cannot admit or deny the RFA. On or before February 16, 2024, defendant shall review and amend his answers to RFA Nos. 3, 4, 22-25, 64-69, 72, 73, 95, and 97 to do so. See Holloway, 2023 WL 6614599 at *5 (“the party is obligated not only to state that it engaged in a reasonable inquiry, but also to elaborate on the contours of that inquiry and state in detail why it cannot truthfully admit or deny a request”) (internal quotations and citations omitted). Moreover, “the mere fact that a response requires information from a third party does not [itself] make an RFA objectionable. Some information from a third party is readily available, even if some is not.” In re N.Y.C. Policing During Summer 2020 Demonstrations, 2023 WL 167410, *2 (S.D.N.Y. 2023).

Having reviewed the remaining disputed RFAs, the Court declines to order further supplementation. Specifically, the Court finds that defendant adequately responded to RFA Nos. 5, 12, 14, 32, 33, 37, 86, 87, 88, 89, 90, 91, and 92. The Court further finds that RFA Nos. 8, 10, 36, 47, 59-63, 70, 75, 81, and 84, are insufficiently articulated or are otherwise improper. See Jacobson Warehouse Co. v. Prestige Brands, Inc., 2022 WL 1617711 at *6 (“[i]t is[ ] ... improper for RFAs to seek admissions as to the content and interpretation – rather than genuineness – of documents that were not authored or owned by the respondent”) (internal quotations omitted); Wynne v. Town of E. Hartford, 2022 WL 17985963, *5 (D. Conn. 2022) (“pure requests for opinions of law, such as legal conclusions ... are not contemplated by ... [R]ule [36]”) (internal quotations omitted); Williams v. City of Albany, 2019 WL 4071777, *3 (N.D.N.Y. 2019) (finding improper requests for admissions to party about another individual's state of mind); Williams v. City of Rochester, 2018 WL 739097, *2 (W.D.N.Y. 2018) (“Rule 36 requires that each request for admissions must be direct, simple and limited to singular relevant facts”) (internal quotations omitted).

On this record, the Court denies plaintiff's requests that matters be deemed admitted. Holloway, 2023 WL 6614599 at *4 (“[t]he [c]ourt is not required to deem a matter admitted simply because the responding party failed to sufficiently answer the request[;] ... [r]ather, the question of how to best remedy the deficiency must be evaluated in the context of the entire case”) (internal quotations omitted). In this case, the appropriate remedy for the deficient responses is to require defendant to provide revised responses.

I also deny plaintiff's request for sanctions under Rules 11, 26(g)(3), and 37(c)(2) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. Plaintiff has served a substantial number of RFAs, many of which are improper, and defendant has endeavored to answer them. With the required supplementation, plaintiff will receive the answers that Rule 36 requires defendant to provide. Nothing in the record suggests that defendant has responded in bad faith to the RFAs to date or will do so in the supplemental responses, and this Court finds no justification for the imposition of sanctions.

III. Plaintiff's First Motion to Compel and for Sanctions

Plaintiff's first pending motion for an order to compel and for sanctions (Docket # 223) relates to his first, second, and third demands for discovery and his second set of interrogatories, which the Court previously addressed in its May 26 Decision and Order. Plaintiff contends that defendant has failed to comply with the Court's Order and thus requests sanctions. Upon review of the contested responses, the Court finds that some of the provided answers are sufficient, some must be supplemented, and some will benefit from this Court's in-camera review of documents withheld from production.

*5 First, I find no basis to quarrel with the sufficiency of defendant's response to Request No. 4 of plaintiff's First Demand for Discovery. (Docket # 178 at 4). In response to Request No. 4, defendant provided a notarized declaration of Scott Ranze,[5] a DOCCS lieutenant who serves as Acting Corrections Emergency Response Team Field Commander, affirming that he conducted a diligent search and that no documents exist relating to DOCCS's policy and practice regarding separation orders.[6] (Docket # 178 at 18, ¶ 7). Although plaintiff contends this “strains common sense” (Docket # 223-1 at 2), he has failed to “cite ... specific evidence to challenge [d]efendant[’s] assertions that no additional responsive documents exist.”[7] Frio Energy Partners, LLC v. Fin. Tech. Leverage, LLC, 2023 WL 4029656, *2 (S.D.N.Y. 2023) (internal quotations omitted). On this record, I deny plaintiff's motion as it pertains to Request No. 4.

I also decline to order any further response to Request No. 5, which seeks documents specifying protective measures to be taken by DOCCS employees when a prisoner identifies a threat to his safety and requests separation from the source of the threat. Prior to this Court's May 26 Decision and Order, defendant responded to the request by providing Directive # 4948 – Protective Custody Status (Docket # 57 at 5-6), and plaintiff initially indicated that the response was adequate (Docket # 60 at 3). Plaintiff then challenged the response, and the Court directed the parties to confer, warning that “[n]o further motion to compel may be filed before the required conferral takes place.” (Docket # 150 at 14-15). Defendant thereafter filed a supplemental response indicating that the “requested information cannot be provided due to security risk[s] and [that] this information could be used to counteract measures taken to ensure the safety of other incarcerated individuals.” (Docket # 178 at 18, ¶ 8). According to defendant, plaintiff failed to further confer before filing the present motion. (Docket # 236 at 3, ¶ 5). Although plaintiff asserts that he “sent defense counsel a letter of conferral[ ] about his request [at] #5,” which “was also provided to the Court,” he did not provide a docket citation to the conferral letter. (See Docket # 239 at 5).[8] See also L. R. Civ. P. 7(d)(3) (discovery motions must be accompanied by an affidavit certifying conferral, and “all related correspondence must be attached”). On this record, I deny plaintiff's request compelling a further response to Request No. 5.

*6 In response to Request No. 7 of plaintiff's Second Demand for Discovery, defendant produced a lightly redacted fight investigation worksheet. (Docket # 178 at 41). Review of the document indicates that the redactions are of the other involved individuals’ first names, DIN numbers, and housing cells (id.) – information that I find is permissibly redacted. Therefore, the Court finds no basis to require supplementation of the response.

I turn next to the adequacy of defendant's response to Request No. 3 of plaintiff's Second Set of Interrogatories (Docket # 197 at 1). In response to plaintiff's request for a description of actions a corrections officer should take when he or she is informed that an incarcerated person possesses a weapon or dangerous instrument, defendant objected that “this information could be used to fight against an officer trying to disarm an incarcerated individual – they would be able to counter the moves.” (Id.). Nonetheless, defendant provided Directive # 4910, which “clearly explains the policy and steps to be taken when a contraband is reported to be in [the] possession of an incarcerated individual.” (Docket # 236 at 11). Given the vast amount of discovery sought in this case, the Court finds this response adequate and declines to order further supplementation.

In his reply papers, plaintiff states that he recently learned of the existence of Directive # 2601 – Incarcerated Persons Who Identify As Members of the LGBTIQ+ Community – which he believes provides information about how staff members should respond to concerns brought to their attention by LGBTIQ+ persons. (Docket # 239 at 18). He requests that the Court direct defendant to produce an unredacted copy of the directive. (Id. at 18-19). Review of the Alphabetic Index of Directives indicates that the directive is actually entitled “Equal Employment and Diversity & Inclusion Program.” (See Docket # 239-1 at 4). Plaintiff's request has not been properly served and is not properly before the Court; moreover, based on its title, it does not appear to contain the information plaintiff seeks. On this record, the Court denies plaintiff's request to compel production of the directive.

In response to this Court's prior instruction that defendant respond to plaintiff's request for the identity of the individual who provided a “free will” statement to DOCCS officials regarding the underlying incident (see Docket # 150 at 17 n.14), defendant raises a relevancy objection and safety and security concerns. (Docket # 236 at 4-5, ¶ 7). Plaintiff maintains that he is entitled to the informant's identity because his statement was taken during DOCCS's investigation of the underlying incident and was considered in disciplinary proceedings against plaintiff. (Docket # 223-1 at 7-8). Insofar as plaintiff contends that he is entitled to disclosure of the informant's name because defendant “has introduced plaintiff[’s] [guilty] disciplinary disposition” or will do so in the future (Docket # 223-1 at 8), the Court disagrees. In this Court's estimation, it is far from clear that defendant would offer, or the court would admit, plaintiff's disciplinary disposition into evidence in this matter.

Moreover, plaintiff's claims relate to defendant's alleged failure to protect him from an assault and are unrelated to the subsequent investigation or disposition of his disciplinary proceeding; therefore, the identify of anyone who made statements “against” him is irrelevant to the current claims. Indeed, defendant has indicated that he does not intend to call the confidential informant as a witness at trial. (Docket # 237 at 6, ¶ 16). If, contrary to this Court's assumption, defendant intends to introduce the confidential informant's statements into evidence to demonstrate that plaintiff was not attacked – and by extension that defendant did not fail to protect him – plaintiff should have the opportunity to obtain evidence from the witness. Therefore, in the event defendant wishes to offer the statement at trial or on a summary judgment motion, he shall provide plaintiff with the witness's identity by no later than February 16, 2024.[9]

*7 Plaintiff suggests that defendant has withheld additional audio or written statements of the confidential informant made in the course of plaintiff's disciplinary proceeding. (Docket # 223-1 at 14). The record does not appear to support this contention. (See Docket # 236 at 18, ¶ 9 (Ranze Declaration affirming that, in response to plaintiff's request for the hearing transcript of the confidential informant, defendant “already provided the [p]laintiff with the statement by the confidential informant ([s]ee Docket No 57 at page 21) and the Sgt. Myers statement[,] [and that] [t]here are no further statements or hearing transcripts”)). If the Court has misinterpreted the Ranze Declaration, defendant shall produce on or before February 16, 2024, any additional statement made by the confidential informant during plaintiff's disciplinary proceeding – whether in audio or written form – about the events on November 23 and 24, 2019.

In order to assess the propriety of defendant's withholding or redaction of various documents on the grounds that disclosure would present undue security risks,[10] this Court will conduct an in-camera review of the following documents:

Defendant must provide these documents to the Court for its review by February 16, 2024, and the Court will thereafter determine whether any withholding of documents or redactions appear improper. The Court denies plaintiff's motion for sanctions at this time.

Request No. 9 of plaintiff's First Demand for Discovery seeks statistics concerning the number of prisoner-on-prisoner assaults in housing units K1-3 from January 1, 2018 through November 25, 2019, and related documents. Defendant produced documents related to the period from January 1, 2019 to November 13, 2019, but failed to produce documents from January 1, 2018 to December 31, 2018. The Court directed defendant to produce the withheld documents (Docket # 150 at 17); in response, defendant raised various objections to the request and represented that seven such assaults had occurred during the period January 1, 2018 to December 31, 2018. (Docket # 178 at 6-7). In opposition to the current motion, defendant asserts that related records are not relevant, are not kept in a central location, and may include personal and security information that should be kept confidential. (Docket # 236 at 4).

*8 Defendant's undue burden claim is somewhat surprising considering his production of relevant documents from the period January 1, 2019 to November 13, 2019. Defendant is directed to supplement his response by February 16, 2024, by producing the relevant documents (which may be redacted to protect personal information or other information the disclosure of which would present security issues) or by providing an affidavit explaining why the production of such documents would pose an undue burden (in contrast to the production of documents relating to the latter half of the relevant period). Any redactions must be accompanied by an affidavit justifying the redactions.

Request No. 23 of plaintiff's Second Demand for Discovery seeks the unusual incident reporting system manual. The Court overruled any relevancy objection “insofar as such a manual may indicate that corrections officers are required to file unusual incident reports when they learn that an inmate has been threatened and/or that another inmate possesses a weapon.” (Docket # 150 at 29 n.21). Defendant was therefore directed to produce responsive documents relating to reports by an inmate of threats or weapons possession or provide an affidavit fully explaining any redactions. (Id.). Defendant provided an affidavit explaining that the manual contains sensitive materials and information relating to the reporting system and the information technology system, and that the “information could be used to ... disrupt[ ] the system or[ ] ... manipulate, rewrite or erase previously reported, recorded and/or pending incidents.” (Docket # 178 at 22, ¶ 17). As indicated, the Court previously ordered disclosure of those portions of the manual that reflect whether officers are required to file reports when they learn that an inmate has been threatened or that another inmate possesses a weapon. If defendant has not produced that discovery, he must do so by February 16, 2024. Portions of the manual that are not specifically responsive – such as portions relating to the information technology system – need not be produced.

IV. Plaintiff's Second Motion to Compel and for Sanctions

Plaintiff's second pending motion to compel relates to his first and second sets of interrogatories and his combined requests for interrogatories and for the production of documents. (Docket # 231 at 1). He also seeks sanctions, including the striking of defendant's first and sixth affirmative defenses. (Id.).

Defendant has properly responded to Request No. 5, which requests the procedure a corrections officer should follow when absent from his or her assigned security post and unable to provide immediate supervision. Defendant has stated that an area supervisor will be informed in such situations (Docket # 237-2 at 6) and that no lesson plan or directives relate to this request (Docket ## 237 at 3, ¶ 11; 237-3 at 4, ¶ 7). Although plaintiff finds this “hard to believe” (Docket # 238 at 1), plaintiff's skepticism does not constitute an adequate justification for the Court to order any further response.

Request No. 7 asks defendant to indicate where he was on November 24, 2019, at approximately 6:45 p.m. when plaintiff was assaulted. He also requests that defendant provide related reports or log books. Defendant responded that he was conducting rounds and submitted logbook pages. (Docket # 237-2 at 7-8). He states no additional report exists and that the relevant to/from memoranda were previously provided. (Id.). Defendant's response is adequate. Contrary to plaintiff's contention (Docket # 238 at 2-3, ¶ 4), it is sufficient that defendant has indicated where the memoranda may be found in his prior production, and he need not reproduce them.

*9 Request No. 8 seeks information about the circumstances under which a to/from memorandum must be prepared. Defendant responded that a “to/from” memorandum is created by an area supervisor when an incident occurs and that no responsive directives or documents exist. (Docket # 237-2 at 8). Plaintiff contends that the to/from memoranda related to the underlying facts in this case demonstrate that a corrections officer is also required to complete such memoranda and requests that the Court require defendant to expand his response and conduct an inquiry into the “nonsensical” statement that no documents are responsive. (Docket # 238 at 3). The Court finds no basis to require further supplementation of the response; just because such a memorandum was prepared by a corrections officer, as well as a supervisor, in this case does not prove that corrections officers are required to prepare them.

Request No. 9 asks whether defendant has ever been reprimanded for conduct unbecoming of an officer; defendant responded that he has not. (Docket # 237-2 at 8). Plaintiff maintains that defendant's response and the accompanying affidavits are false because defendant had his pay docketed for being late, absent, or AWOL and has been disciplined 18 times for being late or absent. (Docket ## 231-1 at 5, ¶¶ 13-14; 238 at 3-4, ¶ 6). Defendant responds that he was counseled on absence but that counseling is not a disciplinary action and that he was not otherwise punished or reprimanded. (Docket # 237-1 at 2, ¶ 4; see also Docket # 237-3 at 4, ¶ 8). He also asserts that being absent for a family emergency does not constitute conduct unbecoming of an officer. (Docket # 237-3 at 4, ¶ 8). This Court finds no basis to conclude that defendant's answer was untrue or incomplete or that sanctions should be imposed.

Most of the remaining interrogatories and disputed demands relate to the confidential informant. For example, plaintiff inquires as to the first time the confidential informant provided confidential information to DOCCS, how long the confidential informant had been incarcerated at Groveland – and in the Housing Unit K-K3 dormitory specifically – before the incident at issue occurred, the last time the confidential informant provided reliable information to DOCCS, the number of times that the confidential informant was used by DOCCS staff to obtain information during an investigation, the number of times the confidential informant had been disciplined or received a misbehavior report, and the charge(s) for which the confidential informant was incarcerated; plaintiff also requests records of convictions related to the confidential informant. (See Docket # 159). As explained supra in connection with plaintiff's first pending motion to compel, these requests are not relevant to the pending claims because defendant has stated he does not intend to call the confidential informant at trial and presumably will not seek to offer the informant's statement. In the event defendant wishes to offer the statement at trial or on a summary judgment motion, on or before February 16, 2024, he must provide plaintiff with any documents or reports from the three-year period preceding the underlying incident that discuss, analyze, or address the credibility of information provided by the confidential informant concerning any inmate's misconduct, or confirm in writing that a diligent search has been conducted and responsive documents are not in his possession, custody, or control.

Finally, plaintiff challenges the adequacy of defendant's response to Interrogatory No. 7, which asks for the protocol that should be followed by a corrections officer who is informed of injuries. Plaintiff contends that defendant should have produced documents reflecting the policy, in addition to answering the interrogatory. (Docket # 231-1 at 12-13, ¶¶ 42-43). Defendant has responded, inter alia, that the request for documents is not relevant. (Docket ## 198 at 1; 237 at 6, ¶ 16). I agree. Plaintiff's claims relate to defendant's purported failure to protect him from injuries, and not to defendant's failure to address or provide treatment for such injuries. No further response is required.

*10 In light of these rulings, and on this record, I decline to impose sanctions or otherwise strike any of defendant's affirmative defenses.

V. Plaintiff's Motion to Strike Defendant's Discovery Responses

Plaintiff moves the Court to strike from the record various documents defendant produced in discovery on the grounds that they are irrelevant, immaterial, inadmissible and/or “impertinent, or scandalous” within the meaning of Rule 12(f) of the Federal Rules of Civil Procedure. (Docket ## 240, 249). Relatedly, he seeks to preclude defendant from relying on the challenged documents “during the filing of motions for summary judgment, or during any hearing, or trial.” (Docket # 240 at 5, ¶ 7).

As an initial matter, Rule 12(f) “is limited to ‘pleadings[,]’ as defined by Federal Rule of Civil Procedure 7(a), and, thus, does not authorize the relief [p]laintiff seeks.” Sweigert v. Goodman, 2021 WL 4295262, *2 (S.D.N.Y. 2021). For this reason alone, plaintiff's motion lacks merit.

Moreover, the Court declines to exercise its inherent authority to strike documents produced during discovery. Although all discovery materials in cases with incarcerated pro se litigants are filed on the docket in this district, that does not mean that they are or will be admitted by the Court if offered into evidence. Additionally, discovery documents properly filed on the docket are not accessible by the public. See L. R. Civ. P. 5.2(f)(3) (“[d]iscovery materials[ ] ... will automatically be restricted to Court staff and parties in the action”).

To the extent plaintiff seeks to preclude defendant from offering or submitting any of the challenged documents in any future motion for summary judgment or at trial, his application is premature. As the Court recently stated in connection with another motion in this case, a ruling on admissibility “at this stage is premature as it is unclear whether defendant will file a summary judgment motion, let alone whether, if so, he intends to rely on the evidence plaintiff seeks to exclude. If defendant does, plaintiff may move to strike or exclude at that time.” (Docket # 252 at 1). Following dispositive motions, plaintiff may file motions in limine directed at trial evidence.

The Court notes that plaintiff contends defendant unlawfully obtained and produced documents that implicate his privacy rights under the Prison Rape Elimination Act (“PREA”). (Docket ## 240 at 11-12, ¶¶ 19-20; 249 at 4-5, ¶¶ 13-16). The certification accompanying the documents indicates that they are maintained in the regular course of business of DOCCS or were contained or maintained in plaintiff's file. (Docket # 195 at 27). This Court has previously ordered defendant to produce to plaintiff documents that defendant may not possess in his personal capacity but that his employer, DOCCS, maintains and that he has the practical means to obtain. (Docket # 150 at 11 (citing Richard v. Dignean, 2021 WL 5782106, *3 (W.D.N.Y. 2021))). Although plaintiff may file a motion to strike, exclude, or seal PREA-related documents defendant seeks to introduce into evidence or submit for the Court's consideration, there is no basis to strike them from the discovery production or conclude that defendant improperly obtained them. Cf. Russell v. Scott, 2022 WL 3084339, *6-7 (D. Vt. 2022) (requiring DOCCS to produce, subject to a protective order, documents related to PREA investigations of complaints lodged by inmates other than plaintiff).

VI. The Parties’ Motions for Extensions of Deadlines in the Scheduling Order

*11 Both parties have moved for extensions of this Court's January 30, 2023 scheduling order. (Docket ## 254, 255). Defendant moves for an extension of the expert discovery deadlines because he still has not obtained medical records necessary to complete expert discovery. (Docket # 254). In order to obtain the records, he needs a HIPAA authorization, and this Court's order requiring plaintiff to execute one for the period October 1, 2019 to January 1, 2020, is currently on review by the district judge (see Docket # 201). He requests a four-month extension of the Court's deadlines for expert discovery and dispositive motions. (Docket # 254).

Plaintiff objects to an extension of the expert discovery deadline because defendant did not provide an initial expert disclosure by November 21, 2023, as required by the current scheduling order (Docket ## 111, 189). (Docket # 255 at 2). First, defendant still has not obtained the medical records necessary for expert review. Second, expert identification and discovery typically occur after fact discovery has been completed (as reflected in the January 30, 2023 scheduling order); here, fact discovery has not been completed due to the pendency of the discovery motions addressed herein. I find that good cause supports the requested extensions, and defendant's motion is granted.[11] An amended scheduling order will be issued separately herewith.

To be clear, the only fact discovery authorized at this stage is that which is specifically permitted or required by this Order. Ample discovery has been requested and provided, and no additional fact discovery requests may be served.

VII. Defendant's Motion to Strike and to Dismiss the Complaint

Defendant moves to strike plaintiff's July 24, 2023 conferral letter (Docket # 203) because it contains personal attacks on counsel. (Docket # 205). In the conferral letter, plaintiff characterizes counsel for defendant as “nothing but an obstructionist” who is “desperate[ ] and ... will[ing to] do anything[ ] to save [her] sinking boat” and causes plaintiff's stomach to turn “with [her] disregard of the rules.” (Docket # 203 at 1). Defendant also requests that the court impose monetary sanctions and dismiss the action as a consequence of plaintiff's failure to heed this Court's prior warning (Docket # 137) about the use of inappropriate and abusive language in his correspondence and court filings. (Docket # 205).

Following the Court's warning, plaintiff submitted filings, some in connection with this particular motion, containing the following statements:

As the Court has previously warned, such language is offensive, abusive, and prohibited. (See also Docket # 218 at 3, ¶ 10 (“Yes, plaintiff called defense counsel ‘desperate.’ Oh God, the world is going to end, defense counsel's unnecessary [and] calculated conduct, in opposing[ ] ... his right to take photographs ... constitute[s] a desperate act[ ] aimed at[ ] concealing material evidence”); Docket # 203 at 2 (“[s]top stonewalling[;] ... [p]laintiff will not go back[ ] and forth with you[ ] about your frivolous, baseless [and] desperate objections to plaintiff[’]s photos[;] you don't get to dictate what evidence plaintiff can present, and, the court has directed that[ ] you confer w[ith] plaintiff[ ] to get the photo[ ]s taken[;] [t]hat's what you need to do”)). If, in plaintiff's view, counsel's position or statements are unsupported or refuted by the record, plaintiff should say so and explain why without resorting to offensive rhetoric and/or ad hominem attacks on her intelligence and character.

In view of the Court's previous warning that further use of plaintiff's inappropriate language would not be tolerated and could result in sanctions, this Court grants defendant's application to strike Docket # 203. See Muench Photography, Inc. v. Houghton Mifflin Harcourt Publ'g Co., 2015 WL 4757601, *3 (S.D.N.Y. 2015) (“[i]t is well-established that a court has the ‘inherent authority’ to manage the cases before it[;] ... that ‘inherent authority’ includes the court's ability to strike any filed paper which it determines to be abusive or otherwise improper under the circumstances”) (internal quotations omitted). The use by any party of inappropriate, offensive, or abusive language in future correspondence or in filings may result in the imposition of sanctions, including but not limited to monetary sanctions, the striking of any noncompliant submissions, termination of discovery, filing injunctions, and/or dismissal of the case.[12] Defendant's request for attorney's fees and/or other non-dispositive sanctions is denied.

*13 In addition to requesting that the Court strike plaintiff's July 24, 2023 conferral letter and impose monetary sanctions, defendant also requests that the court dismiss plaintiff's complaint as a sanction for his use of inappropriate language in filings and disregard of this Court's April 7, 2023 Order warning against the use of offensive language and ad hominem attacks. (Docket # 205). Although dismissal is an available sanction, see, e.g., Koehl v. Greene, 424 F. App'x 61 (2d Cir. 2011) (affirming dismissal as a sanction for “flagrant violation of the court's repeated orders to respect the dignity of the judicial proceeding”), it is an extreme one that should be ordered rarely and when other sanctions are ineffective to remedy the behavior, see, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (“outright dismissal of a lawsuit[ ] ... is a particularly severe sanction”); West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (“because dismissal is a drastic remedy, it should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions”) (internal quotations omitted). On this record, this Court finds that dismissal is not warranted at this time and recommends that the district court deny defendant's request for dismissal of the complaint.

For the reasons stated above, defendant's motion for reconsideration (Docket # 170) is GRANTED in part and DENIED in part. As directed herein, defendant is instructed to make the necessary arrangements for the authorized photographs to be taken (except photographs 4, 6 and 8) and reviewed by plaintiff on or before February 16, 2024. Defendant is instructed to file the required affidavit on or before February 23, 2024. Plaintiff's motion for an extension of time to obtain photographs (Docket # 169) is DENIED as moot. Defendant is also instructed to produce a redacted version of plaintiff's keep away list on or before February 16, 2024.

Plaintiff's motion for miscellaneous relief as it relates to his requests for admissions (Docket # 172) is GRANTED in part and DENIED in part. As directed herein, defendant is instructed to review and provided amended answers to RFAs Nos. 3, 4, 22-25, 64-69, 72, 73, 95 and 97 on or before February 16, 2024.

Plaintiff's first pending motion to compel (Docket # 223) is GRANTED in part and DENIED in part. As directed herein, on or before February 16, 2024, defendant is instructed to provide any required supplementation to plaintiff and provide the Court with the specified documents for in-camera review. Plaintiff's second pending motion to compel (Docket # 231) is DENIED, as is his motion to strike (Docket # 240).

Defendant's motion to extend expert discovery and dispositive motion deadlines (Docket # 254) is GRANTED. Plaintiff's motion to extend the dispositive motion deadlines (Docket # 255) is DENIED as moot.

Defendant's motion to strike (Docket # 205) is GRANTED in part insofar as Docket # 203 is stricken and DENIED in part insofar as defendant's application for sanctions is denied. The Clerk of the Court is directed to strike Docket # 203.

I further recommend that the district court deny defendant's motion to dismiss plaintiff's complaint (Docket # 205).

IT IS SO ORDERED.

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).

*14 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.

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.