Tripathy v. Schneider et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Sanjay Tripathy,
Plaintiff,
v.
Andrea N. Schneider, et al.,
Defendants.
DECISION and ORDER
21-cv-6339-FPG-MJP
INTRODUCTION
Pedersen, M.J. Plaintiff pro se Sanjay Tripathy moves to com-
pel responses to several of his discovery requests from Defendants in
this case. This case involves Tripathy’s exposure to environmental to-
bacco smoke while incarcerated at Gowanda Correctional Facility. Trip-
athy alleges that he suffered adverse health effects from environmental
tobacco smoke. He further alleges that his religion requires him to avoid
all tobacco products.
Thus, this case involves Tripathy’s challenge to his conditions of
confinement at Gowanda Correctional Facility. Tripathy alleges that
DOCCS officers failed to mitigate his exposure to environmental tobacco
smoke. For the reasons that follow, I grant in part, deny in part, and
reserve in part on Tripathy’s motion to compel.
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BACKGROUND
I assume familiarity with my most recent discovery decision and
order, (ECF No. 182, Oct. 18, 2024), and with the satellite litigation
about attorneys’ fees that followed. (D&Os, ECF Nos. 210, 220, & 224,
Dec. 18, 2024, Jan. 13, 2025, Jan. 16, 2025.) Before turning to the pro-
cedural history of Tripathy’s current motion to compel, one item is worth
discussing regarding Defendants’ successful application for attorneys’
fees against Tripathy.
Tripathy purports to withdraw his consent to my involvement in
this case.
Defendants moved to stay deadlines in this case, (ECF No. 225,
Feb. 26, 2025), pending my decision on Defendants’ motion to quash,
(ECF No. 189, Oct. 25, 2024), and Tripathy’s motion to compel. (ECF No.
217, Dec. 30, 2024.) Because Tripathy did not oppose that motion, and
since I found good cause to do so, I granted Defendants’ motion for a
stay. (Text Order, ECF No. 226, Feb. 26, 2025.)
Tripathy emailed Chambers the same day, stating that he had
“withdrawn” consent for a magistrate judge to handle his case on Janu-
ary 14, 2024. (Email, on file.) Tripathy attached a PDF document pur-
porting to request reassignment of this case to another magistrate judge.
Until Judge Geraci vacates his order referring all pretrial, non-
dispositive, matters to me, (Text Order, ECF No. 55, Oct. 10, 2023), I
will continue to issue rulings under my authority as a magistrate judge.
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The PDF document Tripathy attached to an email to my chambers was
created by (and sent by Tripathy to) the Western District of Wisconsin.
Judge Geraci and I thus had no reason to be aware of Tripathy’s pur-
ported withdrawal of consent until Tripathy’s February 26 email. In any
event, the PDF document prepared by the Western District of Wisconsin
plainly applies to consent jurisdiction cases, not referrals to magistrate
judges.
Next, my law clerk explained to Tripathy in an email that a dis-
trict judge does not need a litigant’s consent to refer a case to a magis-
trate judge pursuant to 28 U.S.C. § 636(b)(1)(A). So my law clerk in-
formed Tripathy that I would continue to oversee pretrial matters in this
case until Judge Geraci vacates his earlier referral order. While nothing
has changed, I take this opportunity to memorialize my staff ’s commu-
nications with Tripathy.
After the parties cannot resolve their discovery disputes infor-
mally, I permit Tripathy to move to compel.
After attempting to resolve the parties’ discovery disputes infor-
mally, which included ordering the parties to meet-and-confer, Tripathy
filed a declaration requesting a court conference. (Decl. at 1, ECF No.
207, Dec. 16, 2024 (“Pro se Plaintiff, Sanjay Tripathy, respectfully re-
quests the Court’s intervention to resolve an impasse in discovery.”).)
Defendants 	construed 	this 	declaration 	as 	a 	motion 	to 	compel. 	I
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disagreed, opting to construe ECF No. 207 “as a request for an informal
conference.” (Text Order, ECF No. 209, Dec. 18, 2024.)
I determined that my law clerk should hold a conference with the
parties to (1) try to achieve compromise or (2) understand the parties’
positions about Tripathy’s discovery demands to rule on any forthcom-
ing motion to compel. Accordingly, the parties met with my law clerk for
a teleconference on December 27, 2024. (See Text Order, ECF No. 216,
Dec. 30, 2024.) The parties did not resolve their discovery disputes. So I
directed that for the matters Tripathy had raised in ECF No. 207 he
could move to compel and could also move to extend discovery deadlines
in this case. (Id.) Tripathy moved to compel the same day. (ECF No. 217.)
Defendants opposed. (ECF No. 218, Jan. 3, 2023.) Tripathy replied.
(ECF No. 219, Jan. 3, 2025.)
Tripathy moves to compel discovery on three topics.
Tripathy’s motion to compel deals with three discovery disputes,
which I later discuss in detail. For now, I note that the parties have met
the meet-and-confer requirement. The docket shows earlier efforts to re-
solve their disputes and documents the parties’ meet-and-confer that my
law clerk oversaw.
APPLICABLE LAW
I have broad discretion in deciding a motion to compel. Grand
Cent. P’ship. Inc. v. Cuomo, 166 F.3d 473, 488 (2d Cir. 1999). Two rules,
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Fed. R. Civ. P. 26 and Fed. R. Civ. P. 37, govern motions to compel. I
begin with Rule 37.
Fed. R. Civ. P. 37(a)(1) states: “On notice to other parties and all
affected persons, a party may move for an order compelling disclosure
or discovery.” When evaluating a motion to compel, “an evasive or in-
complete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). A party may move
to compel a disclosure where the opposing party has failed to make a
required disclosure under Fed. R. Civ. P. 26(b)(1) or may compel a more
complete response where the opposing party has failed to provide one.
Under Fed. R. Civ. P. 26(b)(1), “[p]arties may obtain discovery re-
garding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case[.]” To evaluate
whether document discovery is “proportional,” the Court examines “the
importance of the issues at stake in the action, the amount in contro-
versy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its
likely benefit.” Id.
As the text of Rule 26 suggests, “[d]iscovery in federal court is
broad and permissive.” In re Air Crash Near Clarence Ctr., N.Y. on Feb.
21, 2009, 277 F.R.D. 251, 253 (W.D.N.Y. 2011). Indeed, what a party
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seeks in discovery need not be admissible at trial. Barrett v. City of N.Y.,
237 F.R.D. 39, 40 (E.D.N.Y. 2006).
Still, the party moving to compel bears the burden of showing that
the discovery sought meets the Rule 26 relevance standard. Gilead Scis.,
Inc. v. Safe Chain Sols. LLC, 345 F.R.D. 12, 20 (E.D.N.Y. 2023). Thus,
the party seeking discovery must make some showing that the discovery
it wants, first, “has any tendency to make a fact more or less probable
than it would be without the evidence,” and second, “the fact is of conse-
quence in determining the action.” Id. (internal quotation marks omit-
ted) (quoting Vaigasi v. Solow Mgmt. Corp., No. 11CIV5088RMBHBP,
2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016)). Put another way,
“[p]roportionality goes ‘hand-in-hand’ with relevance.” United States v.
Veeraswamy, 347 F.R.D. 591, 598 (E.D.N.Y. 2024) (quotation omitted).
This means that “the more relevant the information sought is, the less
likely a Court would find the subject discovery disproportionate.” Id.
(quotation omitted). And so, “while the scope of discovery is ‘broad,’ it is
not ‘limitless.’” Id. (quotation omitted).
DISCUSSION
To summarize, I deny in full Tripathy’s request for additional to-
bacco sales data and for a subpoena to be issued to Gowanda commissary
vendors or suppliers. I grant Tripathy’s request to extend discovery only
as to timely make his request for a layout of the dorm where he was
housed at Gowanda. I do not yet compel production of that layout; I
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grant Defendants’ request for in camera review and have issued addi-
tional directives. Finally, I grant Tripathy’s motion to compel insofar as
it seeks discovery of ETS-related disciplinary tickets of his dorm-mates.
I am ruling on Tripathy’s motion on the merits despite the appar-
ent lack of a certification pursuant to Rule 37(a)(1). I find that further
efforts to resolve this dispute would be futile. I also find that the parties
did meet and confer, including during a conference call that my law clerk
oversaw. In my discretion, I will afford Tripathy leeway on this issue.
See Almenteros v. Eckert, No. 6:22-CV-06236 EAW CDH, 2025 WL
669513, at *2 n.1 (W.D.N.Y. Mar. 3, 2025) (“While Plaintiff has not in-
cluded this certification, ‘courts have discretion in determining a moving
party’s compliance with Rule 37(a)(1) and generally accord some leeway
to pro se [litigants].” (alteration added) (quoting Woodward v. Holtz-
man, No. 16-CV-1023A(F), 2018 WL 5112406, at *2 (W.D.N.Y. Oct. 18,
2018))). But Tripathy must include a certification if he brings another
motion to compel.
I deny in full Tripathy’s request to compel tobacco sales data.
Tripathy “seeks data regarding the availability and sale of to-
bacco products at Gowanda CF.” (Mot. to Compel at 7, ECF No. 217.)
Tripathy reasons that “[t]his information is essential to establishing a
reasonable estimate of tobacco consumption and the percentage of smok-
ers at the facility during Plaintiff's incarceration.” (Id.) Alternatively,
Tripathy “requests comparable data to estimate the sale/consumption of
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tobacco amongst inmates. This information will allow for a reasonable
estimation of ETS availability at Gowanda CF.” (Id.) I deny this request.
I find nothing to compel with regard to Tripa-
thy’s request for additional tobacco sales discov-
ery from Gowanda.
Regarding Tripathy’s request about Gowanda tobacco sales, De-
fendants argue that they have produced what they could locate after
good faith efforts. (Mem. of Law in Opp’n at 3–4, ECF No. 218-1.) I agree.
On this record, I deny Tripathy’s motion to compel insofar as it
seeks additional discovery about Gowanda tobacco sales. Defendants
made good faith efforts to locate and provide the discovery Tripathy re-
quested. Courts consider it appropriate for a defendant to provide a
sworn statement “that no responsive materials exist.” Owens v. Novia,
No. 3:16CV898(RNC), 2018 WL 3079469, at *1 n.2 (D. Conn. June 21,
2018). After all, I “cannot compel production of documents that do not
exist[.]” Tripathy v. Schneider, No. 21-CV-6392FPG, 2023 WL 7401286,
at *5 (W.D.N.Y. Nov. 9, 2023) (citing Breedlove v. Mandell, No. 05-CV-
6279P, 2008 WL 596864, at *2 (W.D.N.Y. Feb. 29, 2008)), reconsidera-
tion denied, 2023 WL 8030292 (W.D.N.Y. Nov. 20, 2023).
In this case, the declaration of Jennifer Schindler (“Schindler
Decl.”1) demonstrates that Defendants made good faith efforts to comply
1 Attached as Exhibit A to Defendants’ response to Tripathy’s deficiency
letter dated December 2, 2024.
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with Tripathy’s discovery request about tobacco sales and produced
what they could. (ECF No. 204.) To begin, the Schindler declaration re-
counts Ms. Schindler’s personal knowledge as a records custodian for
Collins Correctional Facility. (Id. ¶¶ 1–2.) The declaration clarifies that,
upon Gowanda’s closing, its records were transferred to Collins Correc-
tional Facility. (Id. ¶ 4.) Schindler states that Defendants “produced all
available Gowanda commissary receipts attached to the November 25,
2024, Declaration of Andrea Nicaud.” (Id. ¶ 5.) Finally, the declaration
indicates that Defendants conducted a search of Gowanda records avail-
able at Collins “and determined that DOCCS does not possess records
reflecting tobacco purchases made by the facility, such as vendor pur-
chase orders, inventory records, or receiving records, nor does DOCCS
possess records reflecting Gowanda tobacco sales beyond what has been
previously disclosed.” (Id. ¶ 6.)
Absent some further evidence from Tripathy that DOCCS does
possess additional records, I see nothing to compel. See Tripathy v.
Schneider, No. 21-CV-6392FPG, 2024 WL 3445745, at *5 (W.D.N.Y.
June 21, 2024) (“I agree with defendants that they cannot be compelled
to produce documents that are not within their possession, custody or
control (including those not within the possession, custody or control of
DOCCS), and Domery’s affidavit sufficiently establishes that neither the
individual 	defendants 	nor 	DOCCS 	possess 	any 	Covid-19 	audits
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conducted by DOCCS or by any outside individuals or agencies.”), report
and recommendation adopted, 2024 WL 3444289 (W.D.N.Y. July 17,
2024). Accordingly, I deny Tripathy’s motion insofar as it seeks addi-
tional tobacco sales records from Gowanda.
I deny Tripathy’s request for “comparable data”
as not proportional to the needs of this case.
I turn next to Tripathy’s alternative request for discovery from
what he calls “comparable data,” which Tripathy describes as:
comparable data to estimate the sale/consumption of to-
bacco amongst inmates. This information will allow for a
reasonable estimation of ETS availability at Gowanda CF.
(Mot. to Compel at 7, ECF No. 217.) Defendants oppose this alternative
request first because it is a new request made outside the applicable
deadline for discovery. I decline to adopt this argument, but I ultimately
agree with Defendants that they should not be compelled to respond fur-
ther to Tripathy’s request.
I have several reasons for denying Tripathy’s request to compel
Defendants to produce “comparable data.” Tripathy contends that he
needs this data “to establish excessive ETS at Gowanda” because his
deposition of “Defendant Zagst [ ] did not provide this factual infor-
mation.” (Reply at 4, ECF No. 219.) As noted, relevance and proportion-
ality go hand in hand. Vaigasi, 2016 WL 616386, at *11 (“Proportionality
and relevance are ‘conjoined’ concepts; the greater the relevance of the
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information in issue, the less likely its discovery will be found to be dis-
proportionate.” (citation omitted)).
While “comparable data” might have some attenuated bearing on
ETS at Gowanda, I cannot find that allowing such a broad request is
proportional to the needs of this case. Tripathy had the chance to depose
a DOCCS officer with personal knowledge about ETS at Gowanda. That
Tripathy did not receive the answers he would like does not change the
reality that Tripathy had the opportunity to pursue discovery. Further,
Defendants have provided Tripathy with commissary receipts.
On this record, I find Tripathy’s request disproportional to the
needs of this case because it is overbroad and burdensome. See Tripathy,
2023 WL 7401286, at *4 (holding that production of visit logs to facility
where Tripathy was housed was “not proportional to the needs of the
case” because “at most the logs would establish” only an attenuated re-
lationship between Tripathy and the defendants). I thus decline to com-
pel Defendants to produce additional documents in response to Tripa-
thy’s alternative request for “comparative data.”
I deny Tripathy’s request for a subpoena to ob-
tain “comparable data” or other discovery.
Tripathy notes that “a third party subpoena to the vendors/sup-
pliers of Tobacco Products to Gowanda CF/DOCCS, along with DOCCS
inmate numbers could also be used to obtain such information.” (Mot. to
Compel at 7, ECF No. 217.) To my knowledge, Tripathy has not
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requested such a subpoena, nor has he asked this Court to enforce one.
Tripathy should be aware of the Court’s procedure for issuing subpoenas
as he obtained a subpoena earlier in this case. (ECF No. 153, July 31,
2024.)
Thus, to the extent that Tripathy requests that I direct the issu-
ance of a subpoena, his request is denied. Tripathy must make this re-
quest to the Clerk of the Court, as he did before. See Richard v. New
York City Dep’t of Educ., No. 16-CV-957 (MKB), 2022 WL 4273849, at
*1 (E.D.N.Y. Sept. 15, 2022) (“As an initial matter, Plaintiff failed to
comply with Rule 45 of the Federal Rules of Civil Procedure, which re-
quires Plaintiff to direct his request to the Clerk of Court.” (collecting
cases)); see also Fed. R. Civ. P. 45(a)(3) (noting that “[t]he clerk must
issue a subpoena[]”). Since Tripathy “is not proceeding in forma pau-
peris, the Court has no discretion to screen his subpoena request.” Cun-
ningham v. Channer, LLC, No. 17-CV-1305-FPG, 2018 WL 4620391, at
*3 (W.D.N.Y. Sept. 26, 2018) (citation omitted).
Thus, Tripathy may request a subpoena from the Clerk of the
Court. But Tripathy does so at his peril: Defendants (if they have
standing) or another party may move to quash his subpoena because
discovery has ended or for another good reason. As Tripathy should
know from his pending motion to quash, Defendants could request
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attorneys’ fees. Tripathy is again warned that his pro se status is not a
shield from attorneys’ fees or other sanctions in this case.
I grant in part Tripathy’s request to compel production of ETS-
related disciplinary tickets.
Tripathy moves to compel Defendants to produce “additional de-
tails” about ETS-related disciplinary tickets issued to Gowanda in-
mates. (Mot. to Compel at 7, ECF No. 217.) He adds that “[t]his is also
related to which inmates were directly housed with [him] (Aug 2018–
Jan 2021) at Gowanda CF and their level of tobacco purchases and ETS-
related disciplinary tickets (if any).” (Id. at 8.) I direct Defendants to
produce any ETS-related disciplinary tickets for Tripathy’s dorm-mates
during his time at Gowanda. To the extent that Tripathy sought addi-
tional discovery with his underlying request(s) for production, I decline
to compel such discovery.
I reject Defendants’ burden argument.
To begin, I find no credence to Defendants’ argument that produc-
ing relevant documents would be an undue burden. After all, “a party’s
failure to maintain its documents in a searchable manner does not ordi-
narily justify its invoking what is, in effect, a self-created burden as an
excuse not to produce otherwise relevant documents.” Jackson v. Monin,
No. 13-CV-00004-RJA-JJM, 2015 WL 5714243, at *5 (W.D.N.Y. Sept.
29, 2015) (quoting Newman & Assocs. v. J.K. Harris & Co., LLC, No.
04CIV.9264(RJH)(MHD), 2005 WL 3610140, at *1 (S.D.N.Y. Dec. 15,
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2005)). DOCCS chooses to maintain an archaic filing system for discipli-
nary records exclusively on paper:
DOCCS maintains disciplinary records in physical form
and cannot conduct a computerized search to identify dis-
ciplinary tickets on a specific topic. Therefore, locating
smoking-related disciplinary tickets would require the fa-
cility to locate, retrieve, and manually review the physical
files of each incarcerated individual who resided in Gow-
anda during the requested period of time. This would re-
quire a physical search and review of tens of thousands of
files of incarcerated individuals who were in Gowanda Cor-
rectional Facility for the period [of] 2010 to 2021. This re-
quest cannot be accommodated as such a search is impos-
sible to conduct and unduly burdensome.
(Def.s’ Responses to Pl.’s Document Requests Ex. 2 (“Domery Decl.”) ¶ 3,
ECF No. 202.) Defendants’ argument does not persuade me.
And so, I decline to allow Defendants to escape their discovery
obligations based on a self-imposed burden. DOCCS has long known
about this problem and done nothing. See, e.g., Hyatt v. Rock, No.
915CV0089DNHDJS, 2016 WL 6820378, at *4 (N.D.N.Y. Nov. 18, 2016)
(“How the facility stores or indexes its information is wholly within the
control of the facility itself, and while Courts in this District have been
commenting on this self-created hardship for a number of years, it does
not appear that DOCCS has done anything to correct it.”). Despite the
considerable resources at DOCCS’ disposal, that DOCCS has declined to
update its record retention systems suggests that DOCCS uses its self-
imposed burden to avoid production of otherwise relevant discovery. Af-
ter all, nearly ten years have passed since the Hyatt court’s observation.
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Tripathy’s request for ETS-related disciplinary
tickets, as limited, seeks relevant discovery.
Having rejected Defendants’ argument against Tripathy’s motion
to compel, I turn to why this discovery request is relevant and should be
produced. My reasoning rests on the plain text of Fed. R. Civ. P. 26(b)(1),
which permits Tripathy to “obtain discovery regarding any nonprivi-
leged matter that is relevant to any party’s claim or defense and propor-
tional to the needs of the case.” See also Cox v. McClellan, 174 F.R.D. 32,
34 	(W.D.N.Y. 	1997) 	(Feldman, 	M.J.) 	(“Actions 	alleging 	violations
of § 1983 require especially generous discovery.”).
Recall that one of Tripathy’s remaining claims is for deliberate
indifference to his medical needs. ETS-related disciplinary tickets is-
sued to Tripathy’s dorm-mates would certainly tend to show that Tripa-
thy was exposed to secondhand smoke despite his alleged health condi-
tions. And based on the record in this case, it would violate DOCCS rules
to smoke inside or near one’s cell or dormmates. This certainly bears on
the “truth or veracity” of Tripathy and his claims. Simcoe v. Gray, No.
10-CV-6531, 2012 WL 1044505, at *3 (W.D.N.Y. Mar. 28, 2012). Demon-
strating that he was exposed to secondhand smoke is surely necessary
for Tripathy’s deliberate indifference claim.
Indeed, this District has held that prisoner grievances about spe-
cific DOCCS officers can be relevant. See Jackson, 2015 WL 5714243, at
*5 (compelling production of grievances despite burden DOCCS would
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face in locating them on paper). DOCCS-issued disciplinary tickets do
not present the same concerns as grievances which are “filed according
to inmates making the grievances or complaints[.]” Id. at *4. If courts
compel production of grievances that are “similar to the constitutional
violations alleged in the complaint or are relevant to the defendant’s
truth or veracity,” it follows that I may compel production of DOCCS-
issued disciplinary tickets related to ETS in this case. Simcoe, 2012 WL
1044505, at *3.
That said, I do not see the proportionality of forcing DOCCS and
Defendants to locate and produce ETS-related disciplinary tickets for
dates on which Tripathy was not housed at Gowanda. So I will not com-
pel Defendants to produce such discovery. For the same reasons, Tripa-
thy is not entitled to discovery of all ETS-related disciplinary tickets
from his time at Gowanda. Rather, I find only that “the burden or ex-
pense of the proposed discovery” is not outweighed by “its likely benefit”
with respect to ETS disciplinary tickets issued to Tripathy’s dorm-mates
in Dorm AN22 during his time at Gowanda. Fed. R. Civ. P. 26(b)(1).
2 During my law clerk’s conference with Tripathy and Defendants’ coun-
sel, I understand that my law clerk asked Tripathy if he could remember the
names of any of his cellmates. He could not. In any event, as I found above, I
decline to let DOCCS refuse to produce relevant discovery based on a self-in-
flicted burden. My finding applies with equal force to DOCCS’ argument that
it would be an undue burden to have to determine who was housed in the same
dorm as Tripathy. (Nicaud Decl. ¶¶ 4–6.)
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I will not (yet) compel Defendants to produce a layout of the
dorm where Tripathy was housed at Gowanda.
Finally, I turn to Tripathy’s request for the dorm layout (the “lay-
out request”) of where he resided at Gowanda. Specifically, Tripathy
asks Defendants to produce:
a schematic or layout of Dorm AN2, where Plaintiff re-
sided. This information is crucial to assess Defendant
Zagst’s deposition testimony regarding officer rounds and
visibility within the dorm. This will also help establish the
locations inside the Dorm where exposure (Bathrooms,
Shower, Dining Room, TV Room, Hallway and Stairwell) to
ETS took place.
(Mot. to Compel at 8, ECF No. 217.) Tripathy appears to seek a DOCCS-
generated demonstrative aid. (Letter at 2, ECF No. 193 (“Per deposition
of Defendant Zagst, the Officer sat in his office and did rounds, but he
concluded that the officer could not be in all places in the dorm at the
same time and only did periodic rounds. It is vital to establish this with
a schematic or layout (including size estimates) especially of Dorm
AN2.”).)
The layout request seeks relevant discovery.
Even if Tripathy seeks only a demonstrative, the layout request
is relevant. Recall that relevance for purposes of Rule 26(b)(1) is “broadly
construed.” 	Matalavage 	v. 	Sheriff 	of 	Niagara 	Cnty., 	No. 	20-CV-
Additionally, if Tripathy and Defendants wish, they can stipulate in
such a way that DOCCS does not have to review thousands of paper docu-
ments.
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1254Sk(F), 2023 WL 2043865, at *9 (W.D.N.Y. Feb. 16, 2023). Relevant
information for purposes of discovery includes “information [that] could
reasonably lead to other information that potentially bears on ‘or is ger-
mane to any issue in the case or that may become an issue[.]’” Brennan
v. Mylan Inc., No. 6:22-mc-06015, 2023 WL 2445344, at *2–3 (W.D.N.Y.
Mar. 10, 2023) (quotation omitted).
The layout request is relevant to factual issues surrounding Trip-
athy’s ETS-related claims. First, the layout could illustrate where other
inmates smoked indoors and how correctional officers could (or could
not) have seen such smoking. See Cameron v. Menard, No. 5:18-CV-204-
GWC-KJD, 2021 WL 2805603, at *10 (D. Vt. July 6, 2021) (noting that
instead of a site visit, plaintiff could “seek[] to gain a better understand-
ing of the general layout of the area where the subject altercation and
harassment occurred[]” by requesting “floorplans, photographs, or other
visual representations of the relevant area”). Second, as Tripathy cor-
rectly points out, the layout request could be helpful in evaluating Ser-
geant Zagst’s testimony at summary judgment or trial. See Saavedra v.
City of New York, No. 19 CIV. 7491 (JPC), 2021 WL 104057, at *2
(S.D.N.Y. Jan. 12, 2021) (compelling defendants to produce disciplinary
histories about “similar” acts that would “weigh on” involved officers’
“credibility”). Indeed, Sergeant Zagst stated a prisoner might be able to
smoke inside the dorm without a DOCCS officer noticing. (Zagst Depo.
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Tr. 31:1–6, 58:1–7, ECF No. 173-1, Sept. 17, 2024.) The layout request
serves to help Tripathy evaluate Zagst’s testimony.
The layout request should be considered timely.
While the relevance question is easy, Defendants urge me to deny
this request because Tripathy served his request the day before discov-
ery closed. I construe this argument as falling under Fed. R. Civ. P.
16(b)(4). I disagree.
First, Defendants did not raise this objection in responding to
Tripathy’s underlying discovery request. Instead, they responded with
security concerns and boilerplate:
Defendants object to the extent [that Tripathy’s request]
seeks information and/or documents not in Defendants’
possession, control, or custody. Defendants object to this
request as it is irrelevant to the issues presented in the op-
erative complain[t]. Defendants also object to this request
on security related grounds. Without waiving any general
objections, Defendants submit Gomery Declaration and
state that their counsel can arrange in person, in camera
view of such a map.
(Def.s’ Supp. Resp. to Pl.’s 1st Set of Requests for Production ¶ 4, ECF
No. 202, Nov. 26, 2024.) Defendants refused to produce discovery based
on security concerns and boilerplate objections, not the passage of the
discovery deadline. Given Tripathy’s unrepresented status, Defendants
should have included this in their objections to his request. Or Defend-
ants could have moved for a protective order. But Defendants did nei-
ther.
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Second, courts generally afford pro se litigants “special solici-
tude.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir.
2006). Accordingly, in addressing this motion, I will consider Tripathy’s
pro se status. “A party appearing without counsel is afforded extra lee-
way in meeting the procedural rules governing litigation[.]” Enron Oil
Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Thus, “[p]ro se liti-
gants are afforded leniency in the context of a Rule 16(b) inquiry. Case
v. Clivilles, No. 12-CV-8122 (TPG), 2016 WL 5818577, at *3 (S.D.N.Y.
Oct. 4, 2016) (citing Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.
2010)). I acknowledge that this District has advised Tripathy about Rule
16(b)(4). See, e.g., Tripathy, 2024 WL 3445745, at *2; see also Tripathy
v. Schneider, No. 21-CV-6339-FPG-MJP, 2024 WL 4528763, at *6
(W.D.N.Y. Oct. 18, 2024) (“The Court now considers Tripathy on notice
that he must FOLLOW all Federal Rules of Civil Procedure and Local
Rules of Civil Procedure. (emphasis removed)). Even so, I can under-
stand why Tripathy would believe that a discovery request served the
day before the discovery deadline would be timely. In these circum-
stances, some leeway is appropriate.
Some leeway is likewise appropriate because Tripathy tried to ex-
tend the discovery deadline before it expired. (Letter to Def. Counsel at
1, ECF No. 193, Oct. 30, 2024 (“Further, please state your position for a
joint request to the Court to extend the end of discovery period to at least
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21
January 31st, 2025 (current discovery schedule is in ECF #84).”).) Trip-
athy raised the issue again in a letter to defense counsel on December 2,
2024. (ECF No. 203 (“Further, Petitioner intends to ask for the Court to
extend the end of discovery period to at February 25th, 2025 ... This is a
good-faith effort based on the Federal Rules of Civil Procedure, [and]
local rules to resolve a material discovery dispute, before a formal mo-
tion to the Court.”).) It appears that Tripathy made these requests con-
sidering my earlier admonishment that he needed to discuss discovery
disputes with Defendants’ counsel before proceeding to motion practice.
(See D&O at 20, ECF No. 182, Oct. 18, 2024.) Accordingly, I find good
cause to permit Tripathy’s layout request.
I otherwise deny Tripathy’s request to extend
the discovery deadline.
Within his motion to compel, Tripathy also requests that I extend
the discovery deadline generally, that is, not with respect to a particular
discovery request. (Not. of Mot. at 2, ECF No. 217 (“Plaintiff also seeks
an extension of the discovery deadline (to Feb 28th, 2025) to ensure ad-
equate time to review the requested information.”).) I find only that
Tripathy’s layout request should be considered timely. Tripathy has had
ample time to conduct discovery otherwise. See Cardew v. New York
State Dep’t of Corr. & Cmty. Supervision, 743 F. Supp. 3d 523, 527
(W.D.N.Y. 2024) (“For extensions of discovery, I must consider whether
the party ‘had ample time in which to pursue the discovery that it now’
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22
seeks or ‘claims is essential.’” (quoting Burlington Coat Factory Ware-
house Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir. 1985))). Ac-
cordingly, I deny Tripathy’s request to extend the discovery deadline
generally.
I reserve on Defendants’ objection based on se-
curity concerns, but I order an in-camera review
and a further hearing in this case.
Next, I turn to Defendants’ objections based on security concerns.
Where, as here, a plaintiff sues in federal court to vindicate federal civil
rights, “New York state law does not govern discoverability and confi-
dentiality in federal civil rights actions.” King v. Conde, 121 F.R.D. 180,
187 (E.D.N.Y. 1988); see also Dorsett v. Cnty. of Nassau, 762 F. Supp. 2d
500, 531 (E.D.N.Y.), magistrate judge’s order aff’d, 800 F. Supp. 2d 453
(E.D.N.Y. 2011), aff’d sub nom. Newsday LLC v. Cnty. of Nassau, 730
F.3d 156 (2d Cir. 2013). It follows that the same is true of DOCCS poli-
cies. Thus, I should evaluate DOCCS’ security concerns against the
broad and permissive discovery that Rule 26(b)(1) permits.
Defendants’ objection rests on the declaration of Patrick Domery,
a DOCCS attorney. I find that this declaration does not overcome the
relevance of Tripathy’s layout request. Fed. R. Civ. P. 26(b)(1) (“Parties
may obtain discovery regarding any nonprivileged matter that is rele-
vant to any party’s claim or defense and proportional to the needs of the
case, considering … whether the burden or expense of the proposed dis-
covery outweighs its likely benefit.”).
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Domery states that his declaration relies on his knowledge of
DOCCS’ “rules, regulations, and Directives, and a review of records kept
in the usual and ordinary course of business.” (Domery Decl. ¶ 2, ECF
No. 202.3) Domery indicates that the declaration also relies on his per-
sonal knowledge. (Id.) About Defendants and DOCCS’ security concerns,
he notes that “[a]lthough Gowanda … is currently closed for the purpose
of housing incarcerated individuals, it may be repurposed in the future.”
(Id. ¶ 6.) To provide a specific reason for declining to respond to the lay-
out request, Domery adds:
The disclosure of [sic] Gowanda map would adversely im-
pact DOCCS security interests by revealing sensitive and
safeguarded information that is not disseminated to third
parties. Dissemination of this material may allow individ-
uals to circumvent DOCCS security procedures and re-
sponse measures. This information may be used to seek
and exploit perceived weaknesses in DOCCS facilities,
which presents a high risk of serious physical injury, death,
and endangering public safety.
Of course, this speculation assumes that Tripathy would do something
improper with a layout map, like post it online.
But this layout request is a far cry from a currently incarcerated
prisoner requesting the layout of the facility in which she or he is
housed. Or a current or former prisoner with a history of attempts to
harm DOCCS officers requesting the layout. In other words, Defendants
present no specific danger—only conjecture. See Cullbreath v. Griffin,
3 This declaration can be found at page 74 of ECF No. 202.
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No. 17 CV 3406 (KMK) (LMS), 2018 WL 11299396, at *6 (S.D.N.Y. Mar.
1, 2018) (“A correctional facility that objects to discovery on the on the
basis that disclosure of certain information would pose a risk to its in-
stitutional security or safety must substantiate that claim [with a sworn
affidavit] … detailing specific facts supporting the alleged security risk.”
(emphasis added)). Mere conjecture, or other unsupported representa-
tions (for example, that the facility may be repurposed) are not enough.
See id. (finding similar representations conclusory since the declarant
failed to “explain how an inmate could conceivably act upon this infor-
mation to circumvent security, as … claimed”).
Indeed, in an unpublished bench decision, Judge Payson denied
DOCCS’ motion to quash a request for a similar map.4 Judge Payson
required DOCCS to produce that map, albeit with redactions for sensi-
tive areas and to pro bono counsel rather than a pro se litigant. Her de-
cision rested on DOCCS’ failure to establish a specific security concern.
So too here.
Although DOCCS’ concerns are similarly attenuated and vague,
I am not prepared to hold that they are totally without merit for the
reasons stated below. But on the record before me, I am likewise not
4 Oral Decision and Order, Mack v. Fife, No. 22-cv-6066-DJL-MWP
(W.D.N.Y. Dec. 13, 2023) (on file). Judge Payson issued an order memorializing
her oral decision the following day at ECF No. 69. I also note that motions to
quash and motions to compel both hinge on the relevance standard of Fed. R.
Civ. P. 26(b)(1).
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25
prepared to deny Tripathy’s layout request wholesale. Rather, I direct
the parties as follows:
• 	DOCCS may request leave to brief the question of whether
Tripathy should not have access to this layout. I note that
I came close to sanctioning Tripathy under Fed. R. Civ. P.
11 for statements he has made throughout this litigation.
(D&O at 14 n.2, ECF No. 182.) I have likewise questioned
his ability to follow court directives. (Id. at 13–15.) Trial
courts have discretion to permit such additional briefing,
so long as both parties have the opportunity to weigh in.
See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d
Cir. 2001) (noting that “in most cases[,] trial judges can
provide parties with an adequate opportunity to respond
to” or flesh out “particular arguments by ordering addi-
tional briefing”).
• 	To move discovery to its conclusion, I direct the parties to
attempt to negotiate a protective order governing Tripa-
thy’s use of such a layout and other restrictions on it. In so
doing, the parties should meet-and-confer on the layout.
• 	Finally, I direct DOCCS or Defendants to produce a copy of
the layout Tripathy seeks for in camera review. I will per-
form 	this 	review 	in 	tandem 	with 	reviewing 	any
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26
forthcoming application from DOCCS to specify concerns
about Tripathy having access to the layout.
I decline to award attorneys’ fees.
The Court declines to award attorneys’ fees. Where, as here, the
court grants in part and denies in part a motion to compel, the Court
“may issue any protective order authorized under Rule 26(c) and may,
after giving an opportunity to be heard, apportion the reasonable ex-
penses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). Courts have “broad
discretion” under Rule 37(a)(5)(C). Uddin v. O’Brien Rest. Holding Co.,
LLC, No. 16-CV-2098 (RJS), 2017 WL 11674895, at *3 (S.D.N.Y. Aug.
23, 	2017) (quoting Smith 	v. 	Conway 	Org., 	Inc., 	154 	F.R.D. 	73, 	78
(S.D.N.Y. 1994)); see also Corporation of Lloyd’s v. Lloyd’s U.S., 831 F.2d
33, 36 (2d Cir. 1987). Here, because both parties prevailed on significant
portions of Tripathy’s motion to compel, I decline to award attorneys’
fees.
CONCLUSION and ORDER
For 	the 	foregoing 	reasons, 	Tripathy’s 	motion 	to 	compel 	is
GRANTED IN PART and DENIED IN PART as set forth below.
The layout request. I reserve ruling on Defendants’ objections
insofar as they are premised on security concerns related specifically to
Tripathy having access to this layout. As discussed, Defendants may re-
quest to brief these concerns. I otherwise reject Defendants’ arguments
against disclosing these materials. Defendants are ordered to produce
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27
the layout by no later than May 16, 2025, for in camera review. By sep-
arate text order, I will schedule a hearing on the layout request. As
stated, to move discovery to its conclusion, I direct the parties to attempt
to negotiate a protective order governing Tripathy’s use of such a layout
and other restrictions on it. In so doing, the parties should meet-and-
confer on the layout.
ETS-related disciplinary tickets. I grant Tripathy’s motion
to compel insofar as it seeks ETS-related disciplinary tickets issued to
his dorm-mates during his time at Gowanda. While scheduling order
deadlines are stayed in this case, (Text Order, ECF No. 226, Feb. 26,
2025), I direct that responsive discovery be gathered to produce to Trip-
athy. I will not yet set a deadline for production of this discovery to Trip-
athy. Instead, I direct the parties to meet and confer about production
of this discovery.
Additional documents concerning sales of tobacco at
Gowanda. I deny in full Tripathy’s request to compel additional docu-
ments concerning tobacco sales at Gowanda. I likewise deny Tripathy’s
alternative request for “comparable data” from other facilities.
Additionally, to the extent that Tripathy raises already-liti-
gated issues (his failed RLUIPA claim) or references “K2/synthetic ma-
rijuana,” I clarify that Defendants need not produce any discovery con-
cerning these claims or topics. I reiterate that I already issued a
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28
protective order to Defendants concerning discovery about non-tobacco
smoke to which Tripathy may have been exposed. Although I decline to
award attorney fees in connection with Tripathy’s motion to compel,
Tripathy is again warned that I will not hesitate to sanction him, which
may include monetary sanctions, the loss of e-filing privileges, or even a
recommendation that his case be dismissed.
Finally, I decline to direct the issuance of any subpoena(s) that
Tripathy requested for the reasons set forth herein.
IT IS SO ORDERED.
Dated: 	May 9, 2025
Rochester, NY 	/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge
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