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Case 2:05-cv-05427-JS-GRB Document 116 Filed 07/10/13 Page 1 of 9 PageID #: 521







For Plaintiff:

For Medical

For Other

SEYBERT, District Judge:

Currently, pro se Plaintiff Mark Edwards (“Plaintiff”)
has several motions pending before this Court. Two of
Plaintiff’s motions, his letter motion for discovery (Docket

Liora Ben-Sorek, Esq.
Sean R. Strockyj, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

Mark Edwards, pro se
# 05A1980
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929

Alexander Sansone, Esq.
Troy & Troy
382 Rosevale Avenue
Lake Ronkonkoma, NY 11779

Case 2:05-cv-05427-JS-GRB Document 116 Filed 07/10/13 Page 2 of 9 PageID #: 522

Entry 112) and his motion to appoint a medical expert (Docket
Entry 115) are discovery related, and therefore will be
addressed by Magistrate Judge Gary R. Brown. Plaintiff’s
pending motion in limine (Docket Entry 103) is premature at this
stage, as the undersigned’s individual motion practices provide
that motions in limine are to be filed seven days prior to jury
selection, and jury selection has not yet been scheduled.
(SEYBERT INDIV. MOT. PRACTICE § V(B)(ii).) Accordingly, Plaintiff’s
motion in limine is DISMISSED without prejudice to re-filing at
the appropriate time. Finally, also pending are Plaintiff’s
appeals of Judge Brown’s May 22, 2012 decision regarding
Plaintiff’s receipt of legal documents at the Clinton
Correctional Facility (Docket Entry 83) and of Judge Brown’s
December 10, 2012 ruling declining to impose discovery sanctions
against Defendants (Docket Entry 104). For the following
reasons, Judge Brown’s decisions are AFFIRMED and Plaintiff’s
appeals are DENIED.


The Court presumes familiarity with the underlying
facts and procedural history of this case, and therefore will
discuss only the background relevant to the pending appeals.
Briefly, Plaintiff commenced this suit on November 9, 2005
against, among others, several Nassau County Corrections
Officers (“Defendants”) in connection with a beating that he


Case 2:05-cv-05427-JS-GRB Document 116 Filed 07/10/13 Page 3 of 9 PageID #: 523

allegedly received from Defendants in August 2004, when he was
an inmate at the Nassau County Correctional Center (“NCCC”). He
asserts claims for assault, excessive force, and deliberate
indifference to medical needs under Section 1983 of Title 42 of
the United States Code (“Section 1983”).

Discovery in this case has been somewhat lengthy, and
Judge Brown has held various conferences. Relevant to
Plaintiff’s first appeal is the May 22, 2012 conference, during
which Plaintiff raised an issue in receiving mail at the Clinton
Correctional Facility (“Clinton”). According to Plaintiff,
Clinton has a policy pursuant to which legal mail is processed
relatively quickly, but mail from a “non-legal” source beyond
particular page limits requires periodic authorizations, which
can delay the inmate’s ultimate receipt of the mail. During the
May 22, 2012 conference, Judge Brown devised a solution. He
ruled that certain discovery would be sent to defense counsel,
and that defense counsel would then forward the materials to
Plaintiff. That way, the documents would have a “legal source”
and Clinton would be able to process them quickly. Although the
parties agreed to that solution at the conference, Plaintiff now

In addition, discovery has also involved some extended
motion practice. Specifically, on July 30, 2012, Plaintiff
moved to compel the production of “[l]ogbook entries pertaining


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to August 13,& [sic] 14, 2004 at the Nassau County Correctional
Center Behavioral Modification Unit [“BMU”].” (Pl. July Mot. to
Compel, Docket Entry 87, ¶ 1.) Defendants responded that there
are several BMU logbooks, but insofar as Plaintiff sought the
logbook containing the identities of NCCC staff on the unit on
August 13, 2004, Defendants were in the process of searching.
(Defs. Opp. to July Mot. to Compel, Docket Entry 90.) Judge
Brown then issued an electronic order requiring Defendants to
produce the logbooks. On September 4, 2012, Defendants sent
Plaintiff a letter, stating that they were still searching for
the logbook in question, but including the B-3 floor logbook for
the dates in question. (See Defs. Resp. to OTSC, Docket Entry

On October 18, 2012, Plaintiff again moved to compel
production of BMU logbook entries from August 13 and 14, 2004.
(Pl. Oct. Mot. to Compel, Docket Entry 94.) In that motion,
Plaintiff maintained that Defendants had failed to produce the
requested documents “for years,” and, accordingly, Plaintiff
requested sanctions under Federal Rule of Civil Procedure 37(a).
(Pl. Oct. Mot. to Compel ¶¶ 4-5.) In response, Defendants
stated that the particular logbook in question had been archived
and that, thus far, Defendants’ searches had been unsuccessful.
(Defs. Opp. to Oct. Mot. to Compel, Docket Entry 95.)


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Judge Brown subsequently issued an Order to Show
Cause, directing Defendants to show cause why they should not be
sanctioned for their failure to produce the requested logbook.
(See Nov. 8, 2012 OTSC.) Defendants asserted that sanctions
were inappropriate because they had conducted diligent searches
for the logbook. (Defs. Resp. to OTSC at 3.) They also
maintained that they had provided the B-3 logbook and that
Plaintiff could ascertain the information he needed from the B-3
logbook in conjunction with Defendant Schoenig’s time records
and the NCCC daily incident sheets. (Defs. Resp. to OTSC at 3.)
On December 10, 2012, Judge Brown held a conference on
the matter. At that time, Judge Brown determined that the
logbook was discoverable and that, if Defendants found the
logbook, they were to produce it. (Dec. 10, 2012 Tr. at 17.)
Judge Brown also held, however, that a spoliation remedy was
unnecessary because the logbooks sought related to August 13,
2004, and therefore, while they may be relevant to Plaintiff’s
allegations that Defendant Schoenig threatened Plaintiff on that
date, they were likely irrelevant to whether an assault took
place on August 24, 2005. (Dec. 10, 2012 Tr. at 18-19.)
Further, Judge Brown noted that Plaintiff’s request for the
logbook had not been made until recently. (Dec. 10, 2012 Tr. at


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Later during that same conference, Plaintiff again
raised the issue of sanctions against Defendants. Judge Brown
reiterated that he would not impose sanctions against Defendants
because it did not appear that there had been any bad faith or
that Defendants had purposefully withheld any evidence. (Dec.
10, 2012 Tr. at 26.) Plaintiff now appeals from that decision
as well.


District courts review nondispositive orders issued by
a magistrate judge for clear error. FED. R. CIV. P. 72(a). “A
finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d
279, 283 (E.D.N.Y. 2009) (quoting Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508
U.S. 602, 622, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993)).

With respect to Plaintiff’s appeal of Judge Brown’s
May 22, 2012 decision, the Court finds no clear error. At the
time, Plaintiff agreed to having certain discovery documents
mailed from defense counsel’s office and seemed content that
such a procedure avoided lengthy processing of documents at the
Clinton Facility. In any event, the Court has no authority in
how particular correctional facilities process their mail.


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Accordingly, Plaintiff’s appeal of the May 22, 2012 decision is

With respect to Plaintiff’s appeal of Judge Brown’s
December 10, 2012 decision declining to impose sanctions against
Defendants, District Courts have wide discretion in determining
whether to impose sanctions. See Pall Corp. v. 3M Purification
Inc., 279 F.R.D. 209, 212 (E.D.N.Y. 2011) (“Rule 37(b) affords
the court broad discretion in fashioning an appropriate
sanction.” (internal quotation marks and citation omitted));
LeGrande v. Adecco, 233 F.R.D. 253, 256 (N.D.N.Y. 2005) (“The
imposition of sanctions under Rule 37 is within the discretion
of the court.”). A case of alleged spoliation is no different.
“Spoliation is the destruction or significant alteration of
evidence, or the failure to preserve property for another’s use
as evidence in pending or reasonably foreseeable litigation.”
In re Pfizer Inc. Sec. Litig., 288 F.R.D. 297, 312 (quoting West
v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir.
1999)). “The determination of an appropriate sanction for
spoliation, if any, is confined to the sound discretion of the
trial judge, and is assessed on a case-by-case basis.” Richard
Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288
(S.D.N.Y. 2009) (internal quotation marks and citation omitted).
Even with such discretion, however, the Court typically must
consider whether there was any willfulness or bad faith. See In


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re Pfizer Inc. Sec. Litig., 288 F.R.D. at 313; Richard Green,
262 F.R.D. at 288; LeGrande, 233 F.R.D. at 257.

Here, the Court finds that there was no clear error in
Judge Brown’s order declining sanctions. Judge Brown carefully
considered the issue after at least two motions to compel from
Plaintiff and a relatively in-depth conference on the matter.
Moreover, Judge Brown determined that Defendants had not
exhibited any bad faith because Defendants had been continually
searching for the logbook in question and because Defendants had
turned over various other relevant documents. (Dec. 10, 2012
Tr. at 26 (THE COURT: “And I think the fact that the defendants
have produced the records relating to an incident involving a
significant physical assault, but may have misplaced, lost, not
produced something relating to some verbal altercation you had
with a guard, suggests that there is no giant coverup here,
sir.”).) Accordingly, Plaintiff’s appeal is DENIED.


Finding no clear error, Judge Brown’s orders regarding
Plaintiff’s receipt of mail and declining to impose sanctions on
Defendants are AFFIRMED, and Plaintiff’s appeals of those orders

Additionally, Plaintiff’s motion in limine (Docket
Entry 103) is DISMISSED with leave to re-file at the appropriate
time. Plaintiff’s additional pending motions (Docket Entries


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112 and 115) are appropriately before Judge Brown. Accordingly,
within fourteen days of Judge Brown’s resolution of those
motions, Defendants must inform the Court, in writing, of the
status of the case.

The Court certifies that pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this Order would not be taken
in good faith and therefore in forma pauperis status is denied
for the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

The Clerk of the Court is directed to mail a copy of

this Memorandum and Order to pro se Plaintiff.


July 10 , 2013
Central Islip, NY


Joanna Seybert, U.S.D.J.