Smith v. Dodge et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
FREDERICK SMITH,
Plaintiff,
vs. 	9:18-CV-1066
(MAD/CBF)
C.O. STEVEN DODGE, C.O. JASON ASHLINE,
C.O. PETER MCNALLY, and SERGEANT
WILLIAM MURRAY,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
FREDERICK SMITH
15-A-1771
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff, pro se
OFFICE OF THE NEW YORK 	KONSTANDINOS D. LERIS, AAG
STATE ATTORNEY GENERAL 	LAUREN ROSE ROSENBERG, AAG
The Capitol
Albany, New York 12224
Attorneys for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
This case has been ongoing for seven and a half years and the facts underlying the matter
occurred nearly eleven years ago. Plaintiff initiated this action with the filing of a complaint on
September 6, 2018. See Dkt. No. 1. The original complaint was filed by counsel whom Plaintiff
hired. See id. Plaintiff's counsel then filed an amended complaint on December 28, 2018,
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 1 of 41

2
alleging two causes of action—cruel and unusual punishment and failure to intervene—pursuant
to 42 U.S.C. § 1983 against Defendants Steven Dodge, Jason Ashline, Peter reMcNally, and
William Murray. See id. Defendants are corrections officers and Plaintiff's claims stem from an
alleged use of force on September 9, 2015, while Plaintiff was housed at Great Meadow
Correctional Facility.
Plaintiff has been proceeding pro se since August of 2024. See Dkt. Nos. 125, 126, 129.
Presently before the Court are Plaintiff's two appeals from Magistrate Judge Therese Wiley
Dancks's denial of Plaintiff's motions to amend his complaint and compel discovery and
numerous letters related to those appeals. See Dkt. Nos. 189, 205, 215, 220. Defendants oppose
Plaintiff's appeal of the decision on the motion to compel. See Dkt. Nos. 209. Defendants did not
file an opposition to Plaintiff's appeal regarding the motion to amend. Plaintiff also filed a motion
for preliminary injunction, see Dkt. No. 197, which Defendants oppose, see Dkt. No. 206.
Plaintiff has also sought leave to appeal, see Dkt. No. 218, and to file a motion for sanctions, see
Dkt. No. 225.
For the following reasons, Plaintiff's appeals, motion for a preliminary injunction, motion
for leave to appeal, and request for leave to file a motion for sanctions are denied.
II. BACKGROUND
Before filing their answer to Plaintiff's amended complaint, Defendants moved for
summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies. See Dkt.
No. 16. The Court granted the motion and dismissed the amended complaint. See Dkt. No. 35.
Plaintiff appealed the Court's decision, see Dkt. No. 37, and the Second Circuit vacated the
decision and remanded the case, see Dkt. No. 39. The Court then scheduled a hearing to
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 2 of 41

3
determine whether Plaintiff exhausted his administrative remedies. See Text Minute Entry
4/27/2021. The hearing was held by Magistrate Judge Dancks on August 16 and 17, 2021.
On January 19, 2022, Magistrate Judge Dancks issued a Report-Recommendation and
Order recommending the Court deny the motion for summary judgment on the ground that
administrative remedies were unavailable to Plaintiff. See Dkt. No. 74. The Court adopted the
Report-Recommendation and Order on April 18, 2023. See Dkt. No. 94. Defendants then filed
their answer to Plaintiff's amended complaint on May 1, 2023. See Dkt. No. 85. Based on
Magistrate Judge Dancks' Uniform Pretrial Scheduling Order, amended pleadings were due July
31, 2023. See Dkt. No. 87.
On November 14, 2023, Plaintiff moved to strike Defendants' answer through a counseled
motion. See Dkt. No. 98. While the motion was pending, Plaintiff filed a letter requesting to
proceed pro se. See Dkt. No. 108. With the Court's permission, Plaintiff's counsel filed a formal
motion to withdraw as Plaintiff's attorney. See Dkt. Nos. 112, 113. Before ruling on Plaintiff and
his counsel's filings, Chief Judge Brenda K. Sannes referred the case to the Court's Prisoner
Mediation Program and stayed the case pending mediation. See Dkt. No. 114. The parties'
mediation was unsuccessful and the stay was lifted on June 20, 2024. See Dkt. Nos. 122, 123.
Magistrate Judge Dancks then denied Plaintiff's motion to strike the answer and granted
the motion for his counsel to withdraw. See Dkt. Nos. 124, 125. The case was again stayed
pending Plaintiff's receipt of his case file from his attorneys. See Dkt. No. 129. Following
compliance, the stay was lifted on November 6, 2024. See Dkt. No. 139.
On December 9, 2024, Plaintiff filed a letter stating his intention to amend his complaint.
See Dkt. No. 146. Despite the amended pleadings deadline having passed more than one year
before, Magistrate Judge Dancks permitted Plaintiff to file a motion to amend. See Dkt. No. 147.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 3 of 41

4
Plaintiff filed his motion in January of 2025. See Dkt. Nos. 148, 150, 154. Defendants opposed
the motion. See Dkt. No. 158. On April 28, 2025, Plaintiff requested leave to file a motion to
compel. See Dkt. No. 165. With permission from the Court, Plaintiff filed the motion to compel
on May 23, 2025. See Dkt. No. 172. Defendants opposed the motion. See Dkt. No. 179.
On August 11, 2025, Magistrate Judge Dancks denied Plaintiff's motion to amend the
amended complaint. See Dkt. No. 184. Plaintiff appealed that decision on September 8, 2025.
See Dkt. No. 189. Magistrate Judge Dancks then denied Plaintiff's motion to compel, see Dkt.
No. 192, which Plaintiff appealed, see Dkt. No. 205. Plaintiff also filed a motion for a
preliminary injunction. See Dkt. No. 197.
On February 2, 2026, Plaintiff moved for a clerk's entry of default. See Dkt. Nos. 211,
222. The Court denied Plaintiff's request. See Dkt. No. 213. Plaintiff then filed two letters to
correct clerical mistakes in one of his filings and the Court's Text Order denying his request for
default. See Dkt. Nos. 215, 220. Plaintiff also filed a letter requesting leave to appeal the Court's
Text Order. See Dkt. No. 218. Finally, on April 27, 2026, Plaintiff filed a letter seeking
permission to file a motion for sanctions against Defendants for alleged discovery violations. See
Dkt. No. 225.
III. DISCUSSION
A. 	Appeals of Magistrate Judge's Decision
1. Legal Standard
"A party may appeal to the District Judge from a magistrate judge's decision on a non-
dispositive matter." Endemann v. Liberty Ins. Corp., No. 5:18-CV-701, 2022 WL 5173104, *2
(N.D.N.Y. Jan. 6, 2022) (citing N.D.N.Y. L.R. 72.1(b)). "Pretrial disputes concerning discovery
generally are non-dispositive matters because they do not resolve parties' substantive claims for
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 4 of 41

5
relief as set forth in the pleadings." Labarge v. Chase Manhattan Bank, N.A., 95-CV-173, 1997
WL 583122, *1 (N.D.N.Y. Sept. 3, 1997). "When reviewing an appeal from a pretrial non-
dispositive motion decided by a magistrate judge, the court will affirm the order unless it is
clearly erroneous or contrary to law." Ctr. for Food Safety, Inc. v. Wood Farms, LLC, No. 5:23-
CV-399, 2023 WL 11116397, *2 (N.D.N.Y. Sept. 26, 2023) (quoting Jones v. Smith, No. 9:09-
CV-1058, 2015 WL 5750136, *2 (N.D.N.Y. Sept. 30, 2015)). "A decision is clearly erroneous
where 'the reviewing court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.'" Collymore v. City of New York, No. 16-CV-8270, 2021 WL
2269538, *1 (S.D.N.Y. June 3, 2021) (quoting Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir.
2004)). "An order is 'contrary to law when it fails to apply or misapplies relevant statutes, case
law or rules of procedure.'" Id. (quoting Knitting Fever, Inc. v. Coats Holding Ltd., No. 05-CV-
1065, 2005 WL 3050299, *3 (E.D.N.Y. Nov. 14, 2005)). "Ultimately, then, a party challenging a
magistrate judge's decision bears the 'heavy burden' of establishing that the magistrate judge
'abused his broad discretion over resolution of discovery matters.'" Endemann, 2022 WL
5173104, at *2 (citations omitted).
2. Motion to Amend
Magistrate Judge Dancks denied Plaintiff's pro se motion to file a second amended
complaint. See Dkt. No. 184. In reviewing Plaintiff's motion, Magistrate Judge Dancks first
explained as follows:
Plaintiff's proposed second amended complaint, which was filed
more than six years after this case was initiated and sixteen months
after the deadline for amended pleadings, is 113 pages long, and
includes new claims against the named Defendants based on events
that occurred after the use-of-force incident at issue, as well as new
claims against 28 proposed new defendants based on these officials
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 5 of 41

6
either playing a role in the use-of-force incident, or engaging in
wrongdoing after September 9, 2015.
More specifically, in addition to reasserting the Eighth Amendment
claims set forth in the amended complaint, the proposed second
amended complaint alleges that various officials other than the four
named Defendants subjected Plaintiff to harm after the alleged use-
of-force incident by (1) exposing him to inadequate confinement
conditions, meals, and medical treatment, (2) refusing to investigate
the events of September 9, 2015, (3) engaging in conduct designed
to cover up the events of September 9, 2015, and/or (4) depriving
him of due process during his disciplinary hearing arising out of the
events of September 9, 2015. . . . Plaintiff believes that some of
these officials engaged in this wrongdoing because he filed a
grievance regarding the use-of-force incident.
Id. at 6-7 (citations omitted). In his appeal, Plaintiff does not dispute this description of his
proposed second amended complaint but argues that Magistrate Judge Danks's subsequent legal
conclusions constitute clear error. See Dkt. No. 189.
Magistrate Judge Dancks concluded that neither Plaintiff nor his attorneys exercised due
diligence in seeking to earlier file a second amended complaint. See Dkt. No. 184 at 7-10. She
also determined that permitting Plaintiff to file his proposed second amended complaint would
prejudice Defendants. See id. at 10-12. Magistrate Judge Dancks also analyzed the futility of
Plaintiff's proposed amendments and concluded that permitting him to amend would be futile
because the claims are barred by the statute of limitations. See id. at 12-17. Specifically, she
noted that "the last incident of wrongdoing identified in the proposed second amended complaint
occurred in June 2016, when Plaintiff completed his SHU sanction arising out of the disciplinary
determination related to the events of September 9, 2015." Id. at 13. Magistrate Judge Dancks
concluded that the 2016 claims do not relate back to the filing of Plaintiff's original complaint
because they concern entirely new defendants or causes of action which were not present in the
original complaint. See id. at 14-15.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 6 of 41

7
Plaintiff argues he exercised due diligence by asking his attorney about the status of
raising additional claims in his case. See Dkt. No. 189 at 3-4. He states he could not immediately
file a motion to amend after he began to represent himself because he did not have the attorney's
case file. See id. at 4. Plaintiff contends he was not "aware" of his attorney's mistakes until three
months after the deadline for filing an amended pleading and he did not know about the Court's
scheduling order. See id. Plaintiff also asserts that the Court prevented him from firing his
attorney by referring his case to the Prisoner Mediation Program which further delayed his filing
of the motion to amend. See id. at 4-5.
As to the specific claims and defendants Plaintiff adds in the proposed second amended
complaint, Plaintiff argues they relate back to the time the original complaint was filed because
(1) his counsel misunderstood Plaintiff's case and the claims he wanted to bring; (2) the original
complaint did allege a municipal or supervisory liability claim based on an unconstitutional policy
or custom; and (3) the new defendants should know they could be brought into this case because
they would be represented by the same attorneys that represent the current Defendants. See id. at
5-26.
Magistrate Judge Dancks correctly stated the legal standards applicable to a motion to
amend. See Dkt. No. 184 at 3-4, 7-14. However, because Plaintiff profusely argues Magistrate
Judge Dancks committed clear error, the Court will reiterate them, herein.
"Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend 'shall be
freely given when justice so requires,' it is within the sound discretion of the district court to grant
or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)
(citing Zahra v. Town of Southold, 48 F.3d 674, 686 (2d Cir. 1995)). "If the amendment seeks to
add a party, Rule 21 of the Federal Rules of Civil Procedure, which allows addition of a party 'at
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 7 of 41

8
any time, on just terms,' governs." Randolph v. Graham, No. 9:19-CV-1161, 2020 WL 2393804,
*2 (N.D.N.Y. May 11, 2020) (citing FED. R. C IV. P. 21). "[T]he 'showing necessary under Rule
21 is the same as that required under Rule 15(a).'" Id. (quoting Johnson v. Bryson, 851 F. Supp.
2d 688, 703 (S.D.N.Y. 2012)). Additionally, "[a]lthough Rule 15(a) governs the amendment of
pleadings, Rule 16(b) also may limit the ability of a party to amend a pleading if the deadline
specified in the scheduling order for amendment of the pleadings has passed." Kassner v. 2nd
Ave. Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007) (citing FED. R. C IV. P. 16(b)). "Under
Rule 16(b), a party may obtain a modification of the scheduling order only 'upon a showing of
good cause."" Id. (quoting FED. R. C IV. P. 16(b)). "'[I]f [a court[ considered only Rule 15(a)
without regard to Rule 16(b), [it] would render scheduling orders meaningless and effectively
would read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil
Procedure.'" Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (quoting Sosa
v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)). "[A] finding of 'good cause' depends
on the diligence of the moving party." Id.
"Although generally the court affords pro se litigants like Plaintiff 'special solicitude,' . . .
'a party's present or former pro se status does not function as a substitute for an actual showing of
good cause,'" Morales v. Mackenzie, No. 5:17-CV-124, 2021 WL 1018614, *2 (D. Vt. Mar. 17,
2021) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006))
(additional citation omitted). "Stated differently, a party's pro se status 'does not relieve h[im] of
compliance with Rule 16(b)'s diligence requirement.'" Id. (quoting Valentin v. City of Rochester,
11-CV-6238, 2016 WL 5661729, *7 (W.D.N.Y. Sept. 30, 2016)). "Indeed, as one court
explained: '[t]o conclude that [a] [p]laintiff's pro se status alone is sufficient to constitute good
cause under [Rule] 16(b)(4) would entirely deprive Rule 16 scheduling orders of their efficacy in
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 8 of 41

9
any case involving a pro se party.'" Id. (quoting Romero v. Teamsters Union Local 272, 1:15-CV-
07583, 2019 WL 4688642, *8 (S.D.N.Y. Sept. 25, 2019)); see also Servello v. New York State
Off. of Child. & Fam. Servs., No. 1:18-CV-777, 2020 WL 8461517, *2 (N.D.N.Y. Oct. 29, 2020)
("[A] party's present or former pro se status does not function as a substitute for an actual
showing of 'good cause'") (citations omitted); Bradshaw v. Welch, No. 9:21-CV-826, 2026 WL
587707, *2 (N.D.N.Y. Mar. 3, 2026). "Moreover, 'the absence of prejudice to a nonmoving party
does not alone fulfill the good cause requirement of Rule 16(b).'" Morales v. Mackenzie, No.
5:17-CV-124, 2021 WL 1018614, *2 (D. Vt. Mar. 17, 2021) (citations omitted).
"Generally, a motion to amend will be denied as futile 'if the claims sought to be added are
barred by the relevant statute of limitations.'" Darden v. Cnty. of Suffolk, No. 21-CV-5132, 2026
WL 221361, *3 (E.D.N.Y. Jan. 28, 2026) (quoting Sokolski v. Trans Union Corp., 178 F.R.D.
393, 397 (E.D.N.Y. 1998)). "Nevertheless, 'an otherwise time-barred claim may be deemed
timely based on the "relation back" doctrine.'" Id. (citations omitted). "In New York, the three-
year statute of limitations applicable to personal injury actions also applies to § 1983 claims and
runs from the date the plaintiff had reason to know of [his or] her injury." Callicutt v. Scalise, No.
1:11-CV-1282, 2013 WL 432913, *3 (N.D.N.Y. Feb. 4, 2013). For a claim to relate back, the
following must be true:
(1) the amendment asserts a claim arising from the "conduct,
transaction or occurrence" in the original pleading; and (2) within
120 days after the complaint is filed, the party to be added (i)
"received such notice of the action that it will not be prejudiced in
defending on the merits" and (ii) "knew or should have known that
the action would have been brought against it, but for a mistake
concerning the proper party's identity."
Id. (quoting Abdell v. City of New York, 759 F. Supp. 2d 450, 454 (S.D.N.Y. 2010)); see FED. R.
C IV. P. 15(c)(1)(B-C). "'[T]he central inquiry is whether adequate notice of the matters raised in
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 9 of 41

10
the amended pleading has been given to the opposing party within the statute of limitations by the
general fact situation alleged in the original pleading.'" DeJesus v. Ramirez, No. 3:23-CV-54,
2025 WL 857371, *3 (D. Conn. Mar. 19, 2025) (quoting Stevelman v. Alias Rsch. Inc., 174 F.3d
79, 86 (2d Cir. 1999)). The Second "Circuit has interpreted the rule to preclude relation back for
amended complaints that add new defendants, where the newly added defendants were not named
originally because the plaintiff did not know their identities." Hogan v. Fischer, 738 F.3d 509,
517 (2d Cir. 2013) (citing Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999); Barrow v.
Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir.
1996)).
Plaintiff places the blame on his former counsel and relies on his pro se status to assert the
existence of good cause for failing to move to amend within the deadline set by Magistrate Judge
Dancks's scheduling order. Plaintiff contends his former counsel did not understand his case and
mistakenly pursued this action against "DOCCS individual state actors rather than DOCCS []and
associated supervisory and individual state actors as defendants in the case." Dkt. No. 189 at 24.
Plaintiff states that he filed his motion to amend as soon as he could after representing himself
and receiving the case file from his former counsel. See id. at 3-5.
Plaintiff filed his letter requesting to proceed pro se on February 12, 2024. See Dkt. No.
108. The deadline to file amended pleadings had already expired on July 31, 2023. See Dkt. No.
87. In his letter, across three handwritten pages, Plaintiff details numerous issues he took with
counsel's performance and information he sought to receive. See Dkt. No. 108 at 2-4. This
included, for example, being represented by a different attorney from counsel's law firm during
his deposition; failing to receive notice when the Court issued a decision or documents produced
from Defendants regarding his case; and failing to issue subpoenas Plaintiff wanted to be issued,
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 10 of 41

11
to be notified of settlement negotiations, to schedule Defendants' depositions, and to receive
copies of his own deposition testimony. See id. Plaintiff also detailed the precise discovery he
wanted to receive such as x-ray reports, injury reports, and defendants' disciplinary history. See
id. at 3-4. In that letter, Plaintiff did not ask for leave to amend his complaint nor did he assert
that he asked counsel to amend the complaint and counsel refused. See generally Dkt. No. 108.
Plaintiff is correct that numerous months passed where the case was stayed pending
mediation and Plaintiff's counsel sending their case file to Plaintiff. See Dkt. Nos. 114, 117-122,
129, 139. Plaintiff filed another letter on September 5, 2024, regarding his ability to proceed in
forma pauperis in which he stated he still not have his attorneys' case file and that the file
contained evidence helpful to present his "non frivolous meritorious claims. Including not limited
to non parties to the instant civil action employed and not employed by DOCCS." Dkt. No. 127 at
5. Plaintiff noted that the first time he ever saw the original complaint was during his deposition
on October 13, 2023. See id. at 6. However, in that letter, Plaintiff again said nothing about
intending to file an amended complaint with additional defendants and claims. See generally Dkt.
No. 127. It was not until Plaintiff filed another letter on December 9, 2024, that he stated he
received the case file from his attorneys and intended to amend his claims. See Dkt. No. 146.
Plaintiff did not explain in his letters or in his present appeal why he could not have earlier
stated his intention to amend his complaint. For instance, Plaintiff provides no justification for
failing to alert the Court to his plans when he initially moved to proceed pro se. Plaintiff states he
needed counsel's case file to amend his claims, but he does not explain why he could not, at least,
inform the Court that he would be seeking leave to amend once he received the file. Likewise,
this case revolves around Plaintiff's experiences. Plaintiff knows what his own claims are, and he
has not demonstrated good cause for why he did not seek to add claims to his case within the six
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 11 of 41

12
years the case had been open before he filed the December 9, 2024, letter. The Court has also
reviewed Plaintiff's deposition testimony and, even accepting his assertion as true that he did not
see a copy of the complaint until his deposition in October 2023, Plaintiff did not testify in that
deposition about a desire to amend the pleading. See Dkt. No. 158-10. One of Defendants'
attorneys asked Plaintiff if "[o]ther than your excessive force and failure to intervene claims, [he
had] any other claims in this action against these Defendants that we haven't discussed today." Id.
at 118. Plaintiff asked for clarification as to whether the question "relates to only those four
officers." Id. When counsel affirmed the question, Plaintiff responded, "Yes. . . . They offered a
false misbehavior report against me. . . . I want to press criminal charges." Id. at 119.
Defendants' attorney stated, "Okay. Well that's not part of this civil lawsuit. I'm asking you with
respect to this civil lawsuit, is there any other claims that you have that we haven't discussed?"
Id. Plaintiff responded, "Not that I can recall." Id. Based on the foregoing, Plaintiff has not
established that he exercised due diligence in seeking to file a second amended complaint.
Likewise, Plaintiff has not presented any information proving that his failure to earlier
name the additional defendants is the result of a "mistake." As stated, "'the failure to identify
individual defendants when the plaintiff knows that such defendants must be named cannot be
characterized as a mistake.'" Hogan, 738 at 518 (quoting Barrow, 66 F.3d at 470). This is not a
circumstance where Plaintiff named certain DOCCS employees when he meant to name others, or
he included "John Doe" placeholders. Plaintiff's complaint and amended complaint were limited
to the alleged assault of his person by the four named Defendants. Plaintiff's failure to allege
anything related to subsequent interactions with additional individuals cannot be categorized as a
"mistake." Therefore, Plaintiff has failed to establish good cause that would permit belated
amendment of his complaint.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 12 of 41

13
Even if Plaintiff had earlier informed this Court of his intention to bring additional claims
and name additional Defendants, Magistrate Judge Dancks did not commit clear error in denying
leave to amend because of the length of this case. The case was opened on September 6, 2018.
See Dkt. No. 1. The incident underlying Plaintiff's claims occurred on September 9, 2015. See
Dkt. No. 13 at ¶ 10. Permitting Plaintiff to add claims and defendants at this stage of the
litigation would be highly prejudicial to the new and existing defendants. See Connecticut Light
& Power Co. v. USIC Locating Servs., LLC, No. 3:20-CV-403, 2021 WL 3127071, *6 (D. Conn.
July 22, 2021) ("[W]hen courts have denied leave to amend, it is often where a party requests
amendment after a lengthier delay and/or at a later stage in litigation") (collecting cases that
denied leave to amend when two-to-three years had passed).
Plaintiff argues the new defendants would not be prejudiced by being brought into the
case at this late stage because they would be represented by the same attorneys that represent the
currently named Defendants. See Dkt. No. 189 at 18, 25. Specifically, Plaintiff asserts that "the
law prescribes to everyone including the later-named individuals, the knowledge of the law that
prescribes the potential Section 1983 liability . . . . Through [the Attorney General's Office, new
defendants and claims were fairly appropriately noticed and do relate back." Id. at 24-25.
A "'newly named party's actual or constructive notice of the suit satisfies the notice
requirement.'" Burris v. Nassau Cnty. Dist. Att'y, No. 14-CV-5540, 2023 WL 6450398, *10
(E.D.N.Y. Sept. 30, 2023) (quoting Edwards v. City of New York, No. 14-CV-10058, 2015 WL
5052637, *5 (S.D.N.Y. Aug. 27, 2015)). As to "'constructive notice, knowledge of a lawsuit can
be imputed to a[n] unnamed government official through the attorney who would represent him,
as long as that attorney also represented the government entities or officials already sued and
knew or should have known that the new defendant would be named.'" Marsh-Godreau v. Suny
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 13 of 41

14
Coll. at Potsdam, No. 8:15-CV-437, 2016 WL 1049004, *8 (N.D.N.Y. Mar. 11, 2016) (quoting
Diaz v. City of New York, No 13-CV-8281, 2015 WL 6125586, *2 (S.D.N.Y. Oct. 7, 2015)).
"'The constructive notice doctrine is based on the theory that the newly added defendant is not
prejudiced by the lack of notice if his attorney has already begun preparing a defense for the
named defendant during the limitations period.'" Id. (quoting Velez v. Fogarty, No. 06-CV-
13186, 2008 WL 5062601, *5 (S.D.N.Y. Nov. 20, 2008)); see also Burris, 2023 WL 6450398, at
*10. Courts have noted that "[c]onstructive notice . . . may be imputed to the State of New York
and its agencies" such as DOCCS through representation by the Attorney General's Office.
Maccharulo v. Gould, 643 F. Supp. 2d 587, 594 (S.D.N.Y. 2009); see also Marsh-Godreau, 2016
WL 1049004, at *8.
Plaintiff has not provided the Court with any information that indicates the proposed
additional Defendants were on constructive notice of their potential involvement in this action
within the limitations period.
As previously stated, "in New York, the statute of limitations for Section 1983 claims is
New York's general statute of limitations for personal injury actions, N.Y. C.P.L.R. § 214(5),
which is three years." Kane v. Mount Pleasant Cent. Sch. Dist., 80 F.4th 101, 108 (2d Cir. 2023)
(citing Lucente v. County of Suffolk, 980 F.3d 284, 308 (2d Cir. 2020)). Plaintiff alleges
Defendants' use of force occurred on September 9, 2015. See Dkt. No. 13 at ¶ 10. Plaintiff's
original complaint was filed by counsel on September 6, 2018. See Dkt. No. 1. As Plaintiff's
complaint was filed within days of the three-year statute of limitations expiring, the additional
defendants could not have actual or constructive notice of Plaintiff's potential claims against
them.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 14 of 41

15
To be sure, during his deposition in October 2023, Plaintiff testified that during and after
the alleged assault, there were additional corrections officers around him in addition to the four
named Defendants. See Dkt. No. Dkt. No. 158-10 at 61, 65, 125. Plaintiff stated that when he
was taken to the medical unit, there was another sergeant screaming at him. See id. at 126.
Plaintiff also mentioned "Brian Erwin" in his deposition as the individual from the Office of
Special Investigations who took Plaintiff's statement about the alleged assault "eight days after it
happened." Id. at 109. Plaintiff said he "had an issue with Brian Erwin about [what was put in
his statement], and [Erwin] went through lengths to tell [Plaintiff] that this was just to get things
going. That this was just, you know that they were going to come and get [Plaintiff's] actual
statement at a later point in time." Id. at 128.
On December 4, 2018, Defendants served their initial Rule 26 discovery disclosures to
Plaintiff's counsel, which stated "[i]t is further anticipated that the following individuals have
discoverable information," including: Matthew Waters, Matthew Keough, Mark Patch, Tom
Murphy, Michael Lyons, C.O. Bickford, C.O. D. Porlier, and C.O. S. Winchell and Howard
Silverberg, M.D. Dkt. No. 158-2 at 2-3. On May 22, 2023, Defendants provided Plaintiff's
counsel with a supplemental disclosure, which mentioned Thomas Pray, Michael Spina, and J.
Scroggy. See Dkt. No. 158-4 at 2-3. In addition to Brian Irwin, these individuals make up most
of Plaintiff's proposed additional defendants. See Dkt. No. 154-1 at 1. It appears, therefore, that
Defendants' counsel knew about the individuals' potential involvement in, or knowledge of, the
facts underlying Plaintiff's case.
However, those disclosures do not establish that amendment should have been permitted
because they were made years ago, were not made within the statute of limitations and, the
proposed amendments do not "aris[e] from the 'conduct, transaction or occurrence' in the original
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 15 of 41

16
pleading[.]" Callicutt, 2013 WL 432913, at *3 (citation omitted). Plaintiff, in his appeal, admits
as much. Plaintiff references his intention to allege claims concerning the "newly/original named
Defendants personal involvement in the 9/9/15 and derivative occurrences . . . ." Dkt. No. 189 at
8 (emphasis added). Plaintiff explains that "[s]ubsequent to the assault," the original or new
defendants falsified records, were indifferent to his medical needs, prevented him from
communicating with his family about the alleged assault, and denied him essential services. Id. at
8-12 (emphasis added).
Plaintiff's complaint and amended complaint concerned solely the use of force incident.
See Dkt. Nos. 1, 13. The complaints do not mention anything that happened after the moment
force was used which supports denying leave to amend. See Wallace v. Warden of M.D.C., No.
14-CV-6522, 2016 WL 69 01315, *7 (S.D.N.Y. Nov. 23, 2016) (denying leave to amend despite
"[t]aking the original Complaint as a whole, even viewing it in light of both the 'liberal relation
back policy' and the 'rule that pro se complaints must be liberally construed,'" because "the only
event described in the original Complaint is [the] use of force" and the proposed amended
complaint "asserts entirely new factual allegations, namely that [another defendant] inadequately
investigated a false report that was filed in retaliation for plaintiff's complaint about [the] use of
excessive force").
There is, however, no reason the additional claims and defendants could not have been
included in the original and amended complaints. Indeed, "[s]everal courts have denied motions
to amend when the new allegations clearly could have been included in prior versions of the
complaint." Casaccia v. City of Rochester, No. 6:17-CV-06323, 2019 WL 3816561, *5
(W.D.N.Y. Aug. 14, 2019) (collecting cases).
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 16 of 41

17
As a part of his proposed amendments, Plaintiff seeks to add claims against DOCSS for
alleged unconstitutional policies and practices and against Defendants' supervisors for alleged
failures to intervene and for permitting unconstitutional policies and practices. See Dkt. No. 150-
1 at 27-28. Plaintiff argues in his appeal that the first amended complaint includes a policy and
custom claim concerning a failure to intervene. See Dkt. No. 189 at 5-6, 19. However, he also
states in the appeal that his former counsel "could not factually raise policy/customs claim against
any defendants named/not named in [the first amended complaint] without first establishing the
statutory legal requirements of a 1983 complaint to allege allegations of a
municipality/supervisory claims and name a defendant it is attributable to . . . ." Id. at 22.
Plaintiff is incorrect that any policy or custom claim was alleged in the first amended
complaint. The first amended complaint contains two causes of action: a cruel and unusual
punishment claim and a failure to intervene claim against four individual defendants. See Dkt.
No. 13. There is no mention of a supervisor or DOCCS engaging in unconstitutional conduct.
See id. There are no allegations in the original or first amended complaints which would have put
the proposed supervisory defendants on notice that they might be brought into the case. That is
particuaurly true where the proposed second amended complaint references falsifying records and
medical indifference, which are not claims in the original or amended complaint. Therefore,
Plaintiff's proposed amended claims do not relate back. Cf. Erdogan v. Nassau Cnty., No. 10-CV-
05837, 2014 WL 1236679, *12 (E.D.N.Y. Mar. 25, 2014) (denying motion to amend to add
existing defendant's supervisors "lack of knowledge does not meet the threshold for the element
of mistake . . .").
In sum, Plaintiff's appeal concerning his motion to amend must be denied because
Magistrate Judge Dancks' decision was not contrary to law nor the result of clear error.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 17 of 41

18
3. Motion to Compel
In Magistrate Judge Dancks's decision on Plaintiff's motion to compel, she granted some
of Plaintiff's document requests. See Dkt. No. 192. 	For example, Magistrate Judge Dancks
granted Plaintiff's requests for Defendants' personnel files and disciplinary records concerning
excessive force. See id. at 11-13. She denied, however, Plaintiff's requests for "Use of Force,
Unusual Incident Reports, and Misbehavior Reports prepared by Defendants for the 15-year
period of 2009-2024, along with grievances related to the use of force filed against Defendants for
that same time period"; Defendants' medical and mental health records; and "approximately 33"
non-party witness depositions. Id. at 10-11, 13-17. Specifically, Magistrate Judge Dancks
concluded that "requiring Defendants to conduct a search for such records encompassing a period
of 15 years would be overly burdensome, time-consuming, and not proportional to the needs of
the case." Id. at 10. As to Defendants' medical and mental health records, Magistrate Judge
Dancks stated that there are security concerns in producing such documents to an incarcerated
person, Plaintiff did not provide a time limitation on his request, and he failed to establish the
relevance of the request. See id. at 13-15. Magistrate Judge Dancks also denied Plaintiff's request
for "an order directing Defendants' counsel to accept his written deposition questions for multiple
non-party witnesses employed by DOCCS and to have DOCCS appoint a stenographer to
administer the oath and take these depositions." Id. at 15. She denied Plaintiff's request because
he did not file any proposed subpoenas and failed to comply with Rule 31 of the Federal Rules of
Civil Procedure. See id. at 15-17.
In his appeal, Plaintiff argues that he is entitled to prove his case through extrinsic
evidence of similar circumstances involving excessive force. See Dkt. No. 205 at 10-11. Plaintiff
contends that "[D]efendants through his Attorney as Assistant NY Attorney General has the
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 18 of 41

19
practical ability to acquire from DOCCS many of the documents requested by Plaintiff." Id. at
17. Plaintiff states that Defendants production of logs books, attendance records, Plaintiff's
"rapsheet," and Plaintiff's medical file demonstrates their ability to produce the records he
requests. Id. As to Defendants' medical and mental health records, Plaintiff argues Defendants
failed to produce a privilege log such that any privilege is waived. See id. at 14. Plaintiff also
claims that the records are relevant because Defendant Ashline put his mental health at issue
when he testified during his deposition that he was in the Army and "[i]t is a well know[n] FACT,
that many Army veterans come back from the war with mental health issues." Id. Plaintiff asserts
that defendants have been named in multiple civil lawsuits, which "heightens the probability of
existence of mental health/substance abuse records relevant of the proportionally high
representable, wanton sadistic, malicious misconduct of Defendants in Plaintiff['s] [] case." Id. at
14. Finally, as to the depositions of non-party witnesses, Plaintiff contends a local notary is a
public officer who could administer an oath and that he tried to establish a plan for conducting the
depositions, but his submission was stricken from the docket. See id. at 19.
a. 	Reports Drafted by Defendants and Grievances Filed by Other Incarcerated
Individuals Against Defendants
In response to Plaintiff's motion to compel, Defendants submitted a declaration from
Marat Shkolnik, an Associate Counsel with the New York State Department of Corrections and
Community Supervision. See Dkt. No. 179-11. In the declaration, Attorney Shkolnik "noted that
Unusual Incident, Use of Force, and Misbehavior reports are cataloged by incarcerated individual
rather than the involved staff members. These records are maintained within correctional
facilities in which they were created." Id. at ¶ 14. The following was also affirmed:
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 19 of 41

20
The manner in which Unusual Incident, Use of Force, and
Misbehavior reports are cataloged does not allow for a practical
method of identifying and retrieving the underlying records that
may be responsive to this request. Such an undertaking would
cause an administrative burden on facility staff, requiring members
to examine the files of every incarcerated individual housed at all
relevant facilities during the relevant period, extract the relevant
portions, unbind the physical packets, make copies, reassemble the
packets as originally maintained, and review the contents to flag for
security and privacy information contained within that should be
redacted. This would require a detailed and individualized review
of thousands of incarcerated individual files.
Id. at ¶ 15. Attorney Shkolnik affirmed that "security staff members may be reassigned to
different correctional facilities based on the needs of DOCCS and available staffing resources. As
a result, individual staff members may have been assigned to several different facilities from 2009
to 2024." Id. at ¶ 16. " Moreover, several correctional facilities have been closed between from
2009 to 2024. The records that would have been maintained by the closed facilities in the normal
course have been dispersed to designated operational facilities throughout the State that have
storage space." Id.
"'[T]he party seeking discovery bears the initial burden of proving the discovery is
relevant, and then the party withholding discovery on the grounds of burden [or] expense . . .
bears the burden of proving the discovery is in fact . . . unduly burdensome and/or expensive.'"
Black Love Resists In the Rust by & through Soto v. City of Buffalo, N.Y., 334 F.R.D. 23, 28
(W.D.N.Y. 2019) (quoting Citizens Union of New York v. Attorney General of New York, 269 F.
Supp. 3d 124, 139 (S.D.N.Y. 2017)).
In Plaintiff's appeal, he relies on Gross v. Lunduski, 304 F.R.D. 136 (W.D.N.Y. 2014) to
argue that his request is not unduly burdensome. See Dkt. No. 205 at 3, 16. In Gross, the
plaintiff requested Unusual Incident Reports related to investigative "reports involving [the
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 20 of 41

21
d]efendant or containing any statements of [the d]efendant, covering the past 15 years." Gross,
304 F.R.D. at 150. The defendant argued that the grievances were first "filed by the complaining
inmate's name, not that of the officer against whom the grievance is directed" and then "further
subdivided according to '50 different codes depending on the type of grievance raised,' i.e.,
medical care, harassment, use of force, etc. . . . Thus, . . . to search and retrieve any grievances
directed to Defendant would require significant manpower to search all such inmate grievances on
file with DOCCS." Id. (citation omitted). Prior to the district court rendering its decision, the
plaintiff "agreed to limit [the] request for grievances to a period of four years prior to the alleged
assault . . . ." Id.
The Gross court noted that the defendants' declaration did not include a "statement
specifically addressing the amount of time and manpower that would be reasonably required to
review the more limited number of grievances for staff conduct needed to respond to [the
p]laintiff's modified request limited to the period 2010–2014." Id. at 152. Likewise, "the []
[d]eclaration also fail[ed] to provide any statement of the number—actual or estimate—of
grievances that would be subject to Plaintiff's limited request, . . ., rendering her estimate that
'hundreds, if not thousands, of hours' would be required to 'cull through' all inmate grievances . . .
too generalized . . . ." Id. 	The district court stated that it "fail[ed] to see how requiring DOCCS,
acting on behalf of Defendant, to review 'hundreds of grievances' limited to those filed by inmates
at Five Points where [the d]efendant was assigned over the past four years and filed by DOCCS as
referring to Staff Conduct only would be unduly burdensome given Plaintiff's need for such
discovery." Id.
Gross does not require the Court to conclude that Magistrate Judge Dancks erred in
denying Plaintiff's motion to compel. First, Plaintiff's request is not limited by any time
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 21 of 41

22
constraint. Plaintiff requested "Use of Force Reports and Unusual Incident reports defendants
endorsed/authored regarding force used or similar patterned acts that bear on their credibility" and
asserted that "Misbehavior reports authored by defendants may bear on credibility and
impeachment evidence." Dkt. No. 172-1 at 4. Without any temporal limitation, Plaintiff's request
is not proportional to the needs of this case, which concerns a single use of force incident from
2015. See Johnson v. Miller, No. 9:20-CV-622, 2021 WL 4803647, *2 (N.D.N.Y. Sept. 2, 2021)
("[The] plaintiff's broad and unsupported demands for ten years of complaints, grievances,
lawsuits, and disciplinary actions relating to all 16 remaining defendants is overly broad,
burdensome, and not proportional to the needs of this particular case").
Second, Gross is not binding on this Court or Magistrate Judge Dancks. "Unlike appellate
court decisions, district court decisions are not precedential in the strict sense of the word: they
are not binding on other courts or judges—even judges in the same district—in subsequent cases."
Tronox Inc. v. Anadarko Petroleum Corp., No. 14-CV-5495, 2025 WL 2242166, *3 (S.D.N.Y.
Aug. 6, 2025) (citing Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) "A decision of a federal
district court judge is not binding precedent in either a different judicial district, the same judicial
district, or even upon the same judge in a different case")). The Court agrees with Magistrate
Judge Dancks's conclusion that it would be unduly burdensome for Defendants to "search[] for
and produc[e] 15 years of records which are not catalogued by the names of DOCCS staff
involved . . . ." Dkt. No. 192 at 11.
However, the Court notes that the burden on DOCCS is a burden of its own making.
Attorney Shkolnik declares "that Unusual Incident, Use of Force, and Misbehavior reports are
cataloged by incarcerated individual rather than the involved staff members." Dkt. No. 179-11 at
¶ 14. However, it is a staff member who writes or completes each of those reports. In the twenty-
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 22 of 41

23
first century, it does not seem impractical for those reports to be filed by the incarcerated
individual's name but to also be searchable by author. Courts have concluded that "'[a] party's
failure to maintain its documents in a searchable manner does not ordinarily justify its invoking
what is, in effect, a self-created burden as an excuse not to produce otherwise relevant
documents.'" McDay v. Eckert, No. 20-CV-233, 2023 WL 12118645, *4 (W.D.N.Y. Aug. 9,
2023) (quoting Jackson v. Monin, No. 13-CV-4, 2015 WL 5714243, *5 (W.D.N.Y. Sept. 29,
2015)). For DOCCS to choose to organize its files in a specific manner and then argue that its
chosen system is not easily searchable such that DOCCS is unable to produce various documents
is a questionable practice. See Newman & Assocs. v. J.K. Harris & Co., LLC, No. 04-CV-9264,
2005 WL 3610140, *1 (S.D.N.Y. Dec. 15, 2005) (noting that although "a party's failure to
maintain its documents in a searchable manner does not ordinarily justify its invoking what is, in
effect, a self-created burden as an excuse not to produce otherwise relevant documents. . . . . The
apparent breadth of plaintiff's demand, however, raises a serious question as to whether, in
weighing relevance against burden, the court can justifiably direct defendants to provide the
requested information"). The declaration relied on by Defendants is questionable in one other
regard. The declaration states as follows:
As an additional layer of complexity, security staff members may
be reassigned to different correctional facilities based on the needs
of DOCCS and available staffing resources. As a result, individual
staff members may have been assigned to several different facilities
from 2009 to 2024. Moreover, several correctional facilities have
been closed between from 2009 to 2024. The records that would
have been maintained by the closed facilities in the normal course
have been dispersed to designated operational facilities . . . .
Dkt. No. 179-11 at ¶ 16 .
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 23 of 41

24
The only "security staff members" Plaintiff was concerned with at the time he filed the
motion to compel are the four named Defendants. The declaration does not state whether and
where those four individuals were assigned. Likewise, the declaration does not state whether any
of the facilities Defendants worked at became one of the closed facilities. It is plausible that the
named Defendants never transferred facilities or that they worked at a facility which never closed.
The declaration does not state whether and how the alleged "additional layer of complexity"
applies to the specific four Defendants named in the action. Dkt. No. 179-11 at ¶ 16.
Nevertheless, the Court concludes that Magistrate Judge Dancks's conclusion was not clearly
erroneous or a mistake of law in light of the decade-long time frame from which Plaintiff sought
the records and the inability of Defendants to easily search for them.
b. 	Medical and Mental Health Records
The Court entirely agrees with Magistrate Judge Dancks's decision to deny Plaintiff's
request for Defendants' medical and mental health records.
"The Court also has 'broad discretion' in determining relevance for discovery purposes."
Doherty v. Bice, No. 18-CV-10898, 2021 WL 4219696, *1 (S.D.N.Y. Sept. 15, 2021) (quoting
Michael Kors, L.L.C. v. Su Yan Ye, No. 18-CV-2684, 2019 WL 1517552, *2 (S.D.N.Y. Apr. 8,
2019)). "Under the Federal Rules of Civil Procedure, relevance must be construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on any party's claim or defense." Id. (quoting State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14-
CV-9792, 2015 WL 7871037, *2 (S.D.N.Y. Dec. 3, 2015)) (additional citation and quotation
marks omitted).
"The Supreme Court has recognized a broad psychotherapist-patient privilege, holding
that 'confidential communications between a licensed psychotherapist and [his or her] patients in
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 24 of 41

25
the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of
the Federal Rules of Evidence.'" Id. (quoting Jaffee v. Redmond, 518 U.S. 1, 15 (1996)). "This
privilege is 'rooted in the imperative need for confidence and trust,' as psychotherapy requires an
environment 'in which the patient is willing to make a frank and complete disclosure of facts,
emotions, memories, and fears.'" Id. (quoting Jaffee, 518 U.S. at 10). "The decision whether to
allow discovery into mental health records is therefore one that requires courts to exercise
extreme sensitivity, as 'the mere possibility of disclosure may impede development of the
confidential relationship necessary for successful treatment.'" Id. (citation omitted).
However, "waiver may be implied in circumstances where it is called for in the interests of
fairness, including when the party attempts to use the privilege both as a shield and a sword."
Doe v. Sarah Lawrence Coll., No. 19-CV-10028, 2021 WL 197132, *4 (S.D.N.Y. Jan. 20, 2021)
(quoting In re Sims, 534 F.3d 117, 132 (2d Cir. 2008), quoting in turn In re Grand Jury
Proceedings, 219 F.3d 175, 182 (2d Cir. 2000)) (additional quotation marks omitted). "'In other
words, a party cannot partially disclose privileged communications or affirmatively rely on
privileged communications to support its claim . . . and then shield the underlying
communications from scrutiny by the opposing party." Id. (citation omitted). "For example,
waiver occurs when a plaintiff puts his or her mental or emotional condition at issue in the case,
by relying on that condition as an element of his or her claim or defense." Id. (citing Green v. St.
Vincent's Med. Ctr., 252 F.R.D. 125, 127-28 (D. Conn. 2008); Kerman v. City of New York, No.
96-CV-7865, 1997 WL 666261, *3 (S.D.N.Y. Oct. 24, 1997)).
Defendants objected to Plaintiff's request for their mental health records as irrelevant, not
proportional to the needs of the case and privileged. See Dkt. No. 179-10 at ¶ 6. Plaintiff appears
correct that Defendants did not serve a privilege log. In response to Plaintiff's appeal, Defendants
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 25 of 41

26
acknowledged Magistrate Judge Dancks's conclusion that "Defendants' mental health records are
protected from disclosure by the psychotherapist-patient privilege," but they did not substantively
address Plaintiff's challenge to that holding. Dkt. No. 209 at 8.
"The failure of a party to list a document withheld during the course of discovery on a
privileged log, or to provide a privilege log altogether, ordinarily results in a finding that the
privilege otherwise asserted as been waived." Feacher v. Intercontinental Hotels Grp., No. 3:06-
CV-0877, 2007 WL 3104329, at *5 (N.D.N.Y. Oct. 22, 2007) (citing Lopez v. City of New York,
No. 05-CV-3624, 2007 WL 869590, *3 (E.D.N.Y. Mar. 20, 2007) (collecting cases)). "Consistent
with these principles, courts in the Second Circuit have uniformly concluded that '[t]he failure of
a party to list a document withheld during the course of discovery on a privileged log . . .
ordinarily results in a finding that the privilege otherwise asserted has been waived.'" Johannes v.
Lasley, No. 17-CV-3899, 2019 WL 1958310, *4 (E.D.N.Y. May 2, 2019) (quoting Feacher, 2007
WL 3104329, at *5).
Plaintiff again relies on the Gross case as it relates to this issue. In Gross, the district
court concluded that "the requested records may reveal past acts of unjustified aggressive conduct
toward inmates by Defendant or, more pertinently, information concerning the alleged assault on
Plaintiff as well as for possible impeachment purposes. Accordingly, the court finds that
Plaintiff's requests seek relevant information." Gross, 304 F.R.D. at 161. As to privilege, the
court noted the "[d]efendant has steadfastly refused to serve the required privilege log, [and]
provided ambivalent responses to [the p]laintiff regarding the existence of the requested records
possibly subject to the asserted privilege arguing that [the p]laintiff had failed to establish such
existence and asserting a general lack of relevancy." Id. at 161-62. The Gross court concluded
that the defendant has waived the privilege and ordered the defendant to "file a statement that any
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 26 of 41

27
mental health records subject to Plaintiff's request do not exist, or produce such records." Id. at
163.
The decision in Gross is applicable to the issue before the Court. However, as explained,
it is not binding on this Court. See Tronox Inc., 2025 WL 2242166, at *3. The Court will not
find that Magistrate Judge Dancks committed clear error because her conclusions are different
from those reached in the Gross decision. Importantly, the Court has not found any other district
court opinion in this Circuit stating that mental health records of a defendant are relevant when
the Plaintiff alleges an unprovoked physical attack. Plaintiff did not present any case law to
support his assertion that a defendant's military experience automatically equates to that
individual having emotional regulation issues that would cause an alleged assault.
On the other hand, because Defendants asserted a privilege, they should have produced a
privilege log. See In re Chevron Corp., 749 F. Supp. 2d 170, 181 (S.D.N.Y.), aff'd sub nom. Lago
Agrio Plaintiffs v. Chevron Corp., 409 Fed. Appx. 393 (2d Cir. 2010) (summary order) ("[T]he
starting position is that the privilege log must be served with the objections or motion to quash
and that the failure to do so may result in waiver of the privilege claims"). However, the Court
finds no clear error in Magistrate Judge Danck's decision where neither parties' mental health has
been placed at issue and case law does not support requiring mental health records to be produced
where an act of unprovoked violence is alleged.
c. 	Non-Party Depositions
In his motion to compel, "Plaintiff request[ed] the court issue subpoenas for attendance to
these non party witnesses . . . to respond to witness depositions." Dkt. No. 174 at 17. Plaintiff
stated that "DOCCS could appoint an officer to conduct that deposition by administering the oath
for written depositions posed by Plaintiff to their employee non party witnesses." Id.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 27 of 41

28
Magistrate Judge Dancks denied Plaintiff's motion because he did not limit his request to
ten non-party witnesses, he did not explain what relevant information was possessed by each
potential witness, he did not provide the subpoenas he wished for the U.S. Marshals to serve, and
he did not provide for a plan to obtain and pay for the depositions. See Dkt. No. 192 at 15-17.
The Court finds no clear error in these statements and the conclusion to deny Plaintiff's request.
"Rule 31 of the Federal Rules of Civil Procedure provides that 'a party may, by written
questions, depose . . . a party, without leave of court,' except in certain limited circumstances."
Nova v. Smith, No. 9:19-CV-72, 2020 WL 13855600, *1 (N.D.N.Y. Apr. 7, 2020) (quoting FED.
R. C IV. P. 31(a)(1), (2)). "The Rule requires that an officer record the deposition and certify it."
Id. (citing Fed. R. Civ. P. 31(b); 30(b)(5), (c)(3)). The Rule also states that "[a] party must obtain
leave of court . . . if the parties have not stipulated to the deposition and . . . the deposition would
result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by
the defendants, or by the third-party defendants[.]" FED. R. C IV. P. 31(a)(2).
"'Pursuant to 28 U.S.C. § 1915(a), [a p]laintiff's in forma pauperis status entitles him to . .
. free service of process by United States Marshals, however, it does not entitle him to waiver of
witness fees, mileage or deposition officer fees.'" 	Woodward v. Mullah, No. 08-CV-463, 2010
WL 1848495, *9 (W.D.N.Y. Feb. 22, 2010), R. & R. adopted, No. 08-CV-463, 2010 WL
1848493 (W.D.N.Y. May 5, 2010) (quoting Jackson v. Woodford, 05-CV-513, 2007 WL
2580566, *1 (S.D. Cal. Aug. 17, 2007)); see also 28 U.S.C. § 1915(d); Murray v. Palmer, 9:03-
CV-1010, 2006 WL 2516485, *4 (N.D.N.Y. Aug. 29, 2006) ( "[A] litigant proceeding in forma
pauperis does not have a right to a waiver of (1) the cost of a deposition stenographer, (2) the
daily attendance fee and mileage allowance that must be presented to an opposing witness under
Rule 45 of the Federal Rules of Civil Procedure, or (3) the copying cost of any deposition
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 28 of 41

29
transcripts"). "Given these logistical and financial realities, many incarcerated pro se plaintiffs
utilize other devices such as interrogatories, deposition by written questions, or requests for
admissions to obtain needed discovery." Fowler v. Fischer, No. 13-CV-6546, 2017 WL 1194377,
*1 (W.D.N.Y. Mar. 30, 2017) (citing Kramer v. City of New Kensington, No. 13-CV-606, 2016
WL 406284, *2 (W.D. Pa. Feb. 3, 2016) ("In light of the expense of oral depositions and logistical
difficulties presented to an inmate proceeding pro se, it is often preferable for pro se inmates to
seek discovery through depositions by written questions pursuant to Rule 31 of the Federal Rules
of Civil Procedure")). However, courts have denied a pro se plaintiff's request to issue subpoenas
where the plaintiff failed to provide a clerk of the court with the subpoenas or explain why the
subpoenas were necessary to litigate the case. See Richard v. New York City Dep't of Educ., No.
16-CV-957, 2022 WL 4273849, *1 (E.D.N.Y. Sept. 15, 2022) (collecting cases).
Plaintiff argues that Magistrate Judge Dancks erred by striking the reply he filed in further
support of his motion to compel. See Dkt. Nos. 182, 183, 205. However, Magistrate Judge
Dancks correctly cited the Court's Local Rules which state that a reply is not permitted for non-
dispositive motions without the Court's permission. See Dkt. No. 183; see also N.D.N.Y. L.R.
7.1(a)(2). Plaintiff never sought Magistrate Judge Dancks's permission to file a reply; therefore,
she appropriately struck his reply from the docket.
Plaintiff contends he tried to "clarify his proposed plan to address the methods of
recording these numerous depositions, and identify an officer to conduct them and how the costs
of these written depositions will be paid . . . ." Dkt. No. 205 at 19. However, in his reply that was
appropriately stricken, Plaintiff did not clarify his plan. Rather, he asked "why[, as a pro se
Plaintiff, he] need[ed] a stenographer in order for DOCCS the organization to appoint an
authorized notary public department officer to receive court issued subpoenas . . . ." Dkt. No. 182
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 29 of 41

30
at 5. Plaintiff asserted that DOCCS should be able to forward his subpoenas and written
depositions to the non-party witnesses and the non-party witnesses could get their responses
"notarized by DOCCS notary public officer or a notary public office local to such witnesses." Id.
Plaintiff's assertions do not establish that Magistrate Judge Dancks committed clear error.
Plaintiff has not limited his request for written depositions to ten or less individuals. Likewise,
Plaintiff's assertion that DOCCS could request a notary improperly places the onus on
Defendants. As pointed out by Magistrate Judge Dancks, Plaintiff never submitted proposed
subpoenas for each of the non-party witnesses to effectuate service of his written deposition
questions. Although the Court must show liberality to Plaintiff because of his pro se status, he is
still required to comply with the Federal Rules of Civil Procedure. See Mayes v. Griffin Hosp.,
No. 3:20-CV-1700, 2021 WL 3795335, *2 (D. Conn. Aug. 26, 2021) ("Plaintiffs, although they
are proceeding pro se, are bound to comply with the provisions of the Federal Rules—including
those concerning proper service—as well as [a d]istrict's Local Rules").
Plaintiff failed to establish why each of the named witnesses would need to be deposed.
When Plaintiff asked Defendants for the non-party witnesses' information, he stated that each
witness "possess[ed or] kn[e]w material evidence and/or material knowledge in regards to
evidence generated in response to or about the subject incident which is inextricably interwoven
to the instance transaction(s)." Dkt. No. 172-2 at 31. Plaintiff listed the "evidence" that the
proposed witnesses had knowledge of as intent, the absence of mistake or accident, a common
scheme or plan, and "[t]he identity of the persons charged with the commission of constitutional
violations at trial and further to the occurrences that are derivative of the 9/9/15 assault . . . against
the Plaintiff." Id. Such descriptions are not specific enough to establish that the depositions of
each individualss was relevant and proportional to the needs of the case. See Parimal v. Manitex
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 30 of 41

31
Int'l, Inc., No. 3:19-CV-1910, 2021 WL 1976311, *2 (D. Conn. May 18, 2021) ("Plaintiff fails to
explain how the testimony of all four of these individuals is proper, and would not be
unreasonably cumulative or duplicative. 'The mere fact that there are several individuals who
may possess relevant information does not necessarily entitle a party to examine each of them'")
(quoting Hertz Corp. v. Accenture LLP, No. 1:19-CV-3508, 2020 WL 1150053, *2 (S.D.N.Y.
Mar. 9, 2020)).
Plaintiff filed a motion for reconsideration on Magistrate Judge Dancks's decision to strike
his reply from the docket. See Dkt. No. 185. Plaintiff argued that, because of his pro se status, he
is unfamiliar with all of the rules and procedures governing discovery and motion practice. See
id. Magistrate Judge Dancks denied the motion because Plaintiff's letter did not establish any
grounds for reconsideration. See Dkt. No. 192 at 17-18.
In Plaintiff's current motion seeking a preliminary injunction, he argues that Magistrate
Judge Dancks's denial was improper because he never filed a formal motion for reconsideration,
but only a letter. See Dkt. No. 195 at 1, 8. Plaintiff's contentions are meritless. As part of his
reconsideration request, Plaintiff labeled his filing as a "letter motion." Dkt. No. 185 at 1-2.
Magistrate Judge Dancks considered the merits of Plaintiff's filing. See Dkt. No. 192 at 17-18.
The Court finds no clear error in Magistrate Judge Dancks's denial of Plaintiff's motion for
reconsideration because she correctly concluded that Plaintiff did not demonstrate "(1) an
intervening change in controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC
9th Ave. P'ship v. Norton Co., 182 B.R. 1, 4 (N.D.N.Y. 1995).
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 31 of 41

32
In sum, the Court finds no clear error in Magistrate Judge Dancks's decisions to deny
portions of Plaintiff's motion to compel, to strike his reply, and to deny his request for
reconsideration.
B. 	Injunctive Relief
Plaintiff seeks injunctive and declaratory relief "to settle the controversy of this manifest
injustice derivative of the Magistrates legal error of facts and law . . . " Dkt. No. 197 at 1.
Plaintiff contends Magistrate Judge Dancks's decision contain numerous instances of clear error
and that judgment should be entered against Defendants because they failed to respond to his
appeal on the denial of his motion to amend. See id. at 1-8.
Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008). A party seeking a preliminary injunction "must demonstrate that it will suffer
irreparable harm absent injunctive relief and either (1) that it is likely to succeed on the merits of
the action, or (2) that there are sufficiently serious questions going to the merits to make them a
fair ground for litigation, provided that the balance of hardships tips decidedly in favor of the
moving party." Mullins v. City of New York, 626 F.3d 47, 52–53 (2d Cir. 2010) (citing Citigroup
Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 34-35 (2d Cir.
2010)).
"A showing of irreparable harm is 'the single most important prerequisite for the issuance
of a preliminary injunction.'" Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118
(2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)). "To satisfy the
irreparable harm requirement, [a plaintiff] must demonstrate that absent a preliminary injunction
[it] will suffer an injury that is neither remote nor speculative, but actual and imminent, and one
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 32 of 41

33
that cannot be remedied if a court waits until the end of trial to resolve the harm." Grand River
Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (quoting Freedom Holdings, Inc.
v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)) (quotation marks omitted). "In order for harm to
irreparable, money damages must be unavailable or at least inadequate." Stagliano v. Herkimer
Central Sch. Dist., 151 F. Supp. 3d 264, 273 (N.D.N.Y. 2015).
Plaintiff's motion for a preliminary injunction reiterates the arguments he set forth in his
appeals. Plaintiff has not established, for all of the reasons set forth, that Magistrate Judge
Dancks committed clear error or made any decisions contrary to the law. Plaintiff has also failed
to establish irreparable harm from the denial of his discovery motions or appeals because he has
the ability to appeal this case after it has been resolved on the merits. Therefore, his request for
injunctive relief is denied.
Plaintiff contends judgment should be entered against Defendants for their failure to
respond to one of his appeals. See Dkt. No. 197 at 1. Defendants argue Plaintiff has failed to
establish an entitlement to a declaratory judgment. See Dkt. No. 206.
"The Declaratory Judgment Act provides that '[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could be
sought.'" Silver v. State Farm Mut. Auto. Ins. Co., No. 25-CV-1823, 2026 WL 878241, *3
(E.D.N.Y. Mar. 31, 2026) (quoting 28 U.S.C. § 2201(a)). "'It is well established, however, that
the Declaratory Judgment Act does not provide an independent cause of action.'" Id. (quoting
Garcia v. Nat'l Contractors Ins. Co., No. 15-CV-1332, 2015 WL 7016968, *1 (E.D.N.Y. Nov. 12,
2015)); see also In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir. 1993). "Thus,
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 33 of 41

34
. . . plaintiff must assert a 'substantive claim of right' to the declaratory relief he seeks." Id.
(quoting Garcia, 2015 WL 7016968, at *1).
Plaintiff has not established any legal right to have Defendants respond to his appeal.
Pursuant to Local Rule 7.1(a)(3),
[w]here a properly filed motion is unopposed and the Court
determines that the moving party has met its burden to demonstrate
entitlement to the relief requested therein, the non-moving party's
failure to file or serve any papers as this Rule requires shall be
deemed as consent to the granting or denial of the motion, as the
case may be, unless good cause is shown.
N.D.N.Y. L.R. 7.1(a)(3). However, Local Rule 7.1 concerns motions, not appeals of magistrate
judge decision. Assuming arguendo that Rule does apply to Plaintiff's appeals, he has not
demonstrated an entitled to the relief he seeks such that Defendants' failure to respond to one of
the appeals is inconsequential. Plaintiff has therefore failed to establish an entitlement to
declaratory relief concerning the same and his motion is denied.
C. 	Request to Correct Clerical Errors
Plaintiff filed a letter seeking to correct a "clerical error" in one of this Court's decisions.
See Dkt. Nos. 215. Plaintiff filed a letter on February 4, 2026, in which he sought "Entry of
Default under FRCP 55(a)." Dkt. No. 211. The Clerk of the Court docketed the filing as a Letter
Motion for "default judgment." Id. Plaintiff filed another document in support of his request for
Entry of Default pursuant to Federal Rule of Civil Procedure 55(a). See Dkt. No. 211. The Clerk
of the Court docketed the letter as a submission in support of Plaintiff's motion requesting
"default judgment." Id. Substantively, Plaintiff argued in his letters that Defendants failed to file
an answer to his complaint; therefore, they had defaulted. See Dkt. Nos. 211, 212. The Court
denied the letters stating as follows:
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 34 of 41

35
The Court has reviewed plaintiffs request for default, Dkt. Nos.
211, 212, which is denied. There is no amended complaint pending
because the Court denied plaintiffs motion for leave to file an
amended complaint. See Dkt. No. 184. While Plaintiff has
appealed that Decision and Order, see Dkt. No. 189, the Court has
not issued a decision on that appeal. A decision on that appeal will
be issued in due course.
Dkt. No. 213.
In Plaintiff's letters seeking to resolve a clerical error, Plaintiff argues his earlier filings
sought an entry of default and not default judgment; therefore, his letters were mislabeled. See
Dkt. No. 215.
"The court may correct a clerical mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of the record." FED. R. C IV. P. 60(a).
"Rule 60(a) 'permits the correction not only of clerical mistakes, but also of inadvertent errors
arising from oversight or omission.'" Pietras v. Bd. of Fire Comm'rs, 94-CV-673, 2009 WL
1797135, *7 (E.D.N.Y. June 24, 2009) (quoting In re Marc Rich & Co. A.G., 739 F.2d 834, 836
(2d Cir. 1984)). "Thus, '[a] motion under Rule 60(a) is available only to correct a judgment for
the purpose of reflecting accurately a decision that the court actually made.'" Id. (quoting Hodge
v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001)).
"The Second Circuit has explained that the 'heart of the distinction between an error that is
correctable under Rule 60(a) and one that is not is that a correction under Rule 60(a) cannot alter
the substantive rights of the parties . . . .'" Id. (quoting Dudley ex rel. Estate of Patton v. Penn-
America, Ins. Co., 313 F.3d 662, 675 (2d Cir. 2002)). "Rule 60(a) 'is not meant to provide a way
for parties to relitigate matters already decided, to change errors in what a court has deliberately
done, or to attempt to establish a right to relief which the court has not previously recognized.'"
Id. (quoting Peyser v. Searle Blatt & Co., Ltd., 2003 WL 1610772, *1 (S.D.N.Y. Mar. 24, 2003)).
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 35 of 41

36
To the extent Plaintiff requested an Entry of Default pursuant to Rule 55(a) and the Clerk
of the Court labeled his filings as requests for default judgment, which is relief pursuant to Rule
55(b), the Court will correct the docket.1 However, the Court finds no errors in the substance of
previous determination. Defendants filed an answer to the amended complaint on May 1, 2023.
See Dkt. No. 85. Magistrate Judge Dancks denied Plaintiff's request to file the proposed second
amended complaint pleading. As explained, Plaintiff is not entitled to any judgment in his favor
based on Defendants' failure to respond to Plaintiff's appeal of that decision.
D. 	Request for Leave to Appeal
Plaintiff also seeks leave to appeal the Court's denial of his letter motions, arguing that the
Court's Text Order was a final order and that "his claims [must] be tested on the merits . . . ." Dkt.
No. 218 at 3.
"'Under § 1291 of the Judicial Code, federal courts of appeals are empowered to review
only final decisions of the district courts.'" Amara v. Cigna Corp., 53 F.4th 241, 248 (2d Cir.
2022) (quoting Microsoft Corp. v. Baker, 582 U.S. 23, 27 (2017), quoting in turn 28 U.S.C. §
1291)). "Under § 1291, 'a party is entitled to a single appeal, to be deferred until final judgment
has been entered, in which claims of district court error at any stage of the litigation may be
ventilated.'" Id. (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)). "Interlocutory
orders, like discovery orders, 'typically merge with the judgment for purposes of appellate
review.'" Id. (quoting Fielding v. Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007)). "Thus, § 1291
generally channels 'all claims of error in[to] a single appeal.'" Id. (quoting Ritzen Grp., Inc. v.
1 Plaintiff filed a letter requesting to correct a clerical mistake in one of his own filings. See Dkt.
No. 220. Plaintiff states that he referenced the wrong statute in his reply in further support of his
appeal on the motion to compel. See id. The Court denies Plaintiff's request to correct the
mistake such that Plaintiff will not be permitted to re-file anything. However, the Court has fully
considered Plaintif's correction in ruling on the pending matters.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 36 of 41

37
Jackson Masonry, LLC, 589 U.S. 25, 38 (2020)); see also Bey v. City of New York, 999 F.3d 157,
163 (2d Cir. 2021) ("Generally, a final decision is one 'that ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment'") (quoting Rabbi Jacob Joseph Sch. v.
Province of Mendoza, 425 F.3d 207, 210 (2d Cir. 2005)).
The Court's Text Order denying Plaintiff's request for default is not a final appealable
decision. It did not end the case. It did not conclusively decide a single merits-based issue.
Rather, the denial permitted the case to continue on the merits. Therefore, it is not ripe for appeal.
See Weaver v. Schiavo, 750 Fed. Appx. 59, 60 (2d Cir. 2019) (summary order) ("We lack
jurisdiction to consider an interlocutory appeal from the denial of a motion for default judgment")
(citing In re Wills Lines, Inc., 227 F.2d 509, 511 (2d Cir. 1955)). ""The collateral order doctrine .
. . is a judicially created exception to the final decision principle; it allows immediate appeal from
orders that are collateral to the merits of the litigation and cannot be adequately reviewed after
final judgment.'" In re Decor Holdings, Inc., 86 F.4th 1021, 1026 (2d Cir. 2023) (quoting
Germain v. Conn. Nat'l Bank, 930 F.2d 1038, 1039-40 (2d Cir. 1991)). The Second Circuit has
stated that "there is no question that a district court's vacatur of a default judgment is reviewable
on appeal from a final judgment." Id.
Additionally, Section 1292(b) "allows permissive appeals of non-final interlocutory orders
that involve (1) a controlling question of law over which there is (2) a substantial ground for
difference of opinion and which (3) will likely materially advance the ultimate termination of the
litigation." Nat'l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F.Supp.2d 139, 161
(E.D.N.Y.1999) (citing 28 U.S.C. § 1292(b)). "District courts have substantial discretion in
deciding whether to certify a question for interlocutory appeal[.]" Marriott v. County of
Montgomery, 426 F.Supp.2d 1, 13 (N.D.N.Y.2006) (citations omitted). Plaintiff has not
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 37 of 41

38
established any one of these three grounds in his request to appeal the Court's Text Order.
Therefore, his request to appeal is denied.
Finally, the Court notes that Plaintiff asserts his appeal on the order denying his motion to
compel conferred jurisdiction on the Second Circuit. See Dkt. No. 205 at 23-24. Plaintiff is
incorrect. Local Rule 72.1(b) states that "[a]ny party may file an appeal from a Magistrate Judge's
decision of a non-dispositive matter to the assigned District Judge by filing with the Clerk and
serving upon all parties their appeal from the decision." N.D.N.Y. L.R. 72.1(b). Plaintiff filed his
appeal concerning the non-dispositive motion to compel in this Court. He did not file it with the
Second Circuit. Regardless, the denial of a motion to compel certain discovery is not a final
decision and is, therefore, not appealable to the Second Circuit. See EM Ltd. v. Republic of
Argentina, 695 F.3d 201, 205-06 (2d Cir. 2012) (concluding that a discovery order that does not
terminate a foreign or domestic proceeding is not a "final decision" under § 1291); Vera v.
Republic of Cuba, 802 F.3d 242, 246 (2d Cir. 2015) ("[U]nder traditional finality principles, a
district court's decision to compel compliance with a subpoena or to deny a motion to quash a
subpoena is generally not a 'final decision' and therefore is not immediately appealable").
E. 	Request for Leave to File a Motion for Sanctions2
On April 27, 2026, Plaintiff filed a letter seeking permission to file a motion for sanctions
related to discovery. See Dkt. No. 225. Plaintiff asserts Defendants "withheld and delayed
disclosure" of discovery materials until after he filed his motion to compel. Id. at 1. He contends
one of the use of force reports was altered by Defendant Murray, and that Defendants expert
witness inappropriately relied on the false report. See id. at 1, 3. Plaintiff states that Defendants
2 Generally, non-dispositive motions are handled by a magistrate judge. However, for the sake of
judicial efficiency in handling Plaintiff's filings, the Court addresses Plaintiff's request in this
Memorandum-Decision and Order.
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 38 of 41

39
and their attorneys should have known that the lack of video surveillance from the alleged use of
force was due to Defendants' fraud and/or concealment. See id. at 2.
"Rule 37 governs situations where a party to a civil action fails to cooperate in discovery,
and provides for the Court to issue sanctions against such a party." Xstrata Canada Corp. v.
Advanced Recycling Technology, Inc., No. 08-CV-1366, 2010 WL 1539722, *2 (N.D.N.Y. Apr.
19, 2010) (citing FED. R. C IV. P. 37). "However, the Second Circuit has consistently recognized
that Rule 37 sanctions are applicable in extreme circumstances, where a party fails to comply with
the court's discovery orders willfully, in bad faith, or through fault." Kesick v. Ulloa, No. 10-CV-
1248, 2012 WL 2873364, *10 (N.D.N.Y. Jul. 12, 2012) (quoting Robertson v. Dowbenko, 443
Fed. Appx. 659, 660 (2d Cir. 2011)) (quotation marks omitted). Dismissal may be imposed "only
in extreme circumstances," and "usually after consideration of alternative, less drastic sanctions."
John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988).
Plaintiff's letter has not established the "extreme circumstances" necessary for imposing
sanctions. Insofar as Plaintiff requests to file a motion which would "more thoroughly explain[]"
his arguments, the Court denies him leave to file such a motion.
First, Magistrate Judge Dancks issued a decision on June 21, 2024, denying Plaintiff's
counseled motion for sanctions related to the lack of video surveillance footage from the alleged
use of force incident. See Dkt. No. 124. Plaintiff did not seek reconsideration of that decision nor
appeal from it, and he has not presented any grounds that would justify doing so. Second, if
Plaintiff believes that a particular document has been altered or is missing information, he will be
permitted to respond in opposition to any dispositive motion that relies on the document or cross-
examine a witness about such document should it be admitted into evidence at the time of trial.
Likewise, any challenges to the evidence relied upon by an expert witness can be raised in a
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 39 of 41

40
dispositive motion or response, or at the time of trial. Finally, Plaintiff's contention that
Defendants did not produce certain discovery until after the motion to compel was decided is not
a basis for sanctions. Defendants objected to Plaintiff's requests, Plaintiff moved to compel the
information, Magistrate Judge Dancks granted Plaintiff's requests in part, and Defendants
produced the ordered documents. That is the appropriate process for discovery to proceed.
Plaintiff's request for leave to file a motion for sanctions is, therefore, denied.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that Plaintiff's appeal (Dkt. No. 189) from the Decision and Order denying his
motion to amend is DENIED; and the Court further
ORDERS that Plaintiff's motion for a preliminary injunction (Dkt. No. 197) is DENIED;
and the Court further
ORDERS that Plaintiff's appeal (Dkt. No. 205) from the Decision and Order denying his
motion to compel is DENIED; and the Court further
ORDERS that Plaintiff's letter requesting the Court to correct the labeling of his previous
filings (Dkt. No. 215) is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall amend Docket Numbers 211 and 212 to
indicate that Plaintiff requested "Entry of Default" instead of default judgment; and the Court
further
ORDERS that Plaintiff's letter requesting to correct a clerical error in a letter he
previously filed (Dkt. No. 220) is DENIED: and the Court further
ORDERS that Plaintiff's motion for leave to appeal (Dkt. No. 218) is DENIED; and the
Court further
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 40 of 41

41
ORDERS that Plaintiff's letter motion requesting permission to file a motion for sanctions
(Dkt. No. 225) is DENIED; and the Court further
ORDERS that the dispositive motion deadline remains June 30, 2026, and no extensions
of that deadline will be considered absent exceptional circumstances; and the Court further
ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties accordance with the local rules.
IT IS SO ORDERED.
Dated: May 7, 2026
Albany, New York
Case 9:18-cv-01066-MAD-CBF Document 226 Filed 05/07/26 Page 41 of 41