Diaz v. Donahue et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FREDERICK DIAZ,
DECISION AND ORDER
Plaintiff,
v. 	22-CV-6559 CJS CDH
JAMES F. DONAHUE, Superintendent, et
al.,
Defendants.
INTRODUCTION
Plaintiff Frederick Diaz (“Plaintiff”), an inmate in the custody of the New York
State Department of Corrections and Community Supervision, has asserted a claim
of First Amendment retaliation under 42 U.S.C. § 1983 against defendants Scott B.
Henry, Christopher Yehl, Gregory A. Keller, Timothy J. Carroll, and James F.
Donahue (collectively “Defendants”). (Dkt. 1 at ¶¶ 4-16; Dkt. 5 at 1, 7-13; Dkt. 7 at 1).
Plaintiff has filed a motion to compel interrogatory responses pursuant to Federal
Rule of Civil Procedure 37. (Dkt. 49). For the reasons that follow, Plaintiff’s motion
to compel is granted in part and denied in part.
BACKGROUND
After Plaintiff commenced the instant action, United States District Judge
Charles J. Siragusa screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(e).
(Dkt. 5; Dkt. 7). 	Plaintiff was permitted to proceed to service on a claim that
Defendants violated the First Amendment by retaliating against him for filing prison
grievances. (Dkt. 5 at 7-13; Dkt. 7 at 1). Plaintiff alleges that Defendants retaliated
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against him by unnecessarily searching his cell, destroying his property, placing him
in a mental health observation unit, issuing a Tier III misbehavior report against
him, sentencing him to 30 days in keeplock, removing him from his job in the law
library, and transferring him from Elmira Correctional Facility (“Elmira”) to Green
Haven Correctional Facility (“Green Haven”). (Dkt. 5 at 7). All Plaintiff’s other claims
were dismissed with prejudice. (Id. at 21).
Judge Siragusa referred the matter to Magistrate Judge Marian W. Payson for
all pretrial matters, excluding dispositive motions. (Dkt. 19). Judge Payson entered
a Scheduling Order pursuant to which fact discovery closed on September 30, 2024,
and motions to compel were due that same day. (Dkt. 38).
On July 15, 2024, Plaintiff served two sets of interrogatories on Defendants
(the “July 2024 Interrogatories”). (Dkt. 49 at 5-8). 	On August 26, 2024, Plaintiff
served two additional sets of interrogatories on Defendants (the “August 2024
Interrogatories”). (Id. at 10-11). Also on August 26, 2024, Plaintiff sent Defendants’
counsel 	a 	letter 	regarding 	Defendants’ 	lack 	of 	response 	to 	the 	July 	2024
Interrogatories. (Id. at 13).
On September 30, 2024, Plaintiff filed the instant motion, seeking an order
compelling Defendants to answer his interrogatories and for monetary sanctions of
$500 because Defendants “ha[d] willfully refused to comply with discovery in a timely
manner. . . .” (Id. at 3, see Dkt. 57 at 1). 	Judge Payson entered a Scheduling Order
on Plaintiff’s motion, setting a response deadline of October 18, 2024. 	(Dkt. 50).
Defendants did not file a response to Plaintiff’s motion. 	However, on November 25,
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2024, they filed and served on Plaintiff responses to his interrogatories. 	(Dkt. 56).
Plaintiff filed a reply in which he argues that Defendants’ interrogatory responses
are “completely inadequate as they [are] evasive and incomplete.” (Dkt. 57 at ¶ 4).
On January 7, 2025, the referral of this matter was reassigned to the
undersigned. (Dkt. 58).
DISCUSSION
I. 	Legal Standard on Motions to Compel
Pursuant to Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case. . . . Information within this scope
of discovery need not be admissible in evidence to be discoverable.” 	Fed. R. Civ. P.
26(b)(1). 	Consistent with the text of Rule 26, “[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). “A district court has broad latitude to determine the scope
of discovery and to manage the discovery process.” EM Ltd. v. Republic of Argentina,
695 F.3d 201, 207 (2d Cir. 2012), aff’d sub nom. Republic of Argentina v. NML Cap.,
Ltd., 573 U.S. 134 (2014).
After engaging in a good-faith effort to meet and confer and upon notice to all
parties, “a party may move for an order compelling disclosure or discovery” under
Federal Rule of Civil Procedure 37. Fed. R. Civ. P. 37(a)(1). “Motions to compel made
pursuant to Rule 37 are ‘entrusted to the sound discretion of the district court.’”
Harris v. Bronx Parent Hous. Network, Inc., No. 18-CV-11681 GBDSN, 2020 WL
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763740, at *1 (S.D.N.Y. Feb. 14, 2020) (quoting U.S. v. Sanders, 211 F.3d 711, 720
(2d Cir. 2000)).
II. 	Compliance with Rule 37(a)(1)
Pursuant to Rule 37(a)(1), a motion to compel discovery must include a
certification that the movant has in good faith conferred or attempted to confer with
the party failing to make discovery. Fed. R. Civ. P. 37(a)(1). Here, Plaintiff has
attempted to comply with this requirement by submitting an affirmation in which he
states that he sent a letter on August 26, 2024, in which he advised defense counsel
that “it had been over a month and Plaintiff still had not received any answers to his
interrogatories.” (Dkt. 49 at 2). Plaintiff has submitted a copy of his August 26, 2024
letter, which states that “although [Plaintiff] sent [defense counsel] all the grievances
and other paperwork [defense counsel] [had] asked for, . . . it has been over a month
now and [Plaintiff] still [has] not received any answers to [his] interrogatories.” (Id.
at 13). 	Plaintiff further asked defense counsel to “please let him know about this.”
(Id.).
“[C]ourts have discretion in determining a moving party’s compliance with
Rule 37(a)(1) and generally accord some leeway to pro se prisoner litigants in § 1983
cases.” Woodward v. Holtzman, No. 16-CV-1023A(F), 2018 WL 5112406, at *2
(W.D.N.Y. Oct. 18, 2018). 	The record does not reflect that Defendants responded to
Plaintiff’s August 26, 2024 letter, which Plaintiff describes as his “good faith attempt
to resolve the dispute with the Defendant before filing a motion to compel[.]” (Dkt. 49
at 3). As such, the Court finds Plaintiff has substantially complied with Rule 37(a)(1)
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concerning this issue. See Ergas v. Eastpoint Recovery Grp., Inc., No. 20-CV-
333SK(F), 2021 WL 1711321, at *6 (W.D.N.Y. Apr. 30, 2021) (finding the defendant's
efforts, “while somewhat abbreviated[,] nevertheless substantially complied with the
prerequisites to motions to compel in accordance with Rule 37(a)(1)”); U.S. v. Acquest
Transit LLC, 319 F.R.D. 83, 89 (W.D.N.Y. 2017) (declining to reject the defendant’s
motion to compel where the defendants substantially complied with Rule 37(a)(1)’s
meet and confer requirement).
III. 	Failure to Provide Properly Verified Responses to Interrogatories
As explained above, although Defendants provided interrogatory responses
subsequent to Plaintiff’s filing of the instant motion to compel, Plaintiff maintains
that those interrogatory responses are “evasive and/or incomplete in violation of Fed.
R. Civ. Proc. 33.” (Dkt. 57 at 5). As an initial matter, the Court finds that Defendants’
interrogatory responses are incomplete, because they were not made under oath as
required by Federal Rule of Civil Procedure 33(a)(3). See Richard v. Dignean, 332
F.R.D. 450, 457 (W.D.N.Y. 2019) (“The rule governing interrogatories provides . . .
that each interrogatory must, to the extent it is not objected to, be answered
separately and fully in writing under oath.”) (internal citations and quotation omitted
and emphasis added).
“The oath requirement applicable to interrogatories has legal significance.
Courts have routinely refused to consider interrogatories that do not comport with
that mandate.” Steptoe v. City of Syracuse, No. 5:09-CV-1132 NPM/DEP, 2011 WL
6012941 at * 5 (N.D.N.Y. Nov. 1, 2011) (collecting cases), adopted, 2011 WL 6012040
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(N.D.N.Y. Nov. 30, 2011), aff’d, 513 F. App’x 8 (2d Cir. 2013); see also Monclova v.
City 	of 	N.Y., 	726 	F. 	App’x 	83, 	84 	(2d 	Cir. 	2018) 	(“None 	of 	[the 	plaintiff]’s
interrogatories were sworn under oath. 	Therefore, the district court did not err in
disregarding them.”); Cris v. Fareri, No. 3:10CV1926(RNC), 2011 WL 13228490, at
*1 (D. Conn. Dec. 13, 2011) (“Requiring a party to sign interrogatory responses under
oath serves the critical purpose of ensuring that the responding party attests to the
truth of the responses.” (quotation omitted)).
Rule 33 “does not prescribe any particular form of verification.” Richard, 332
F.R.D. at 457 (quoting Zanowic v. Reno, No. 97Civ.5292(JGK)(HBP), 2000 WL
1376251, at *5 (S.D.N.Y. Sept. 25, 2000)). “The courts that have addressed the issue
of the form that an interrogatory oath must take appear to be in agreement that the
oath requirement may be satisfied either by having the statement affirming the
responses sworn to before a notary public or by providing a declaration pursuant to 28
U.S.C. § 1746.” Steptoe, 2011 WL 6012941, at *4. Section 1746 provides that an
unsworn matter may be treated as sworn, provided that it is “prove[n] by [an]
unsworn declaration, certificate, verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of perjury, and dated[.]” In re World
Trade Ctr. Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013) (quoting 28 U.S.C.
§ 1746) (emphasis omitted)). 	Declarations made “under penalty of perjury” that
interrogatory responses are “true and correct” satisfy the oath requirement. See Cris,
2011 WL 13228490, at *1 (“The plaintiff must provide a proper oath attesting to the
truth of his interrogatory responses served upon the defendant such as ‘[u]nder
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penalties of perjury, I certify that the foregoing responses to interrogatories are true
and correct.’”).
In 	this 	case, 	Defendants’ 	interrogatory 	responses 	are 	merely 	signed 	by
defendant Timothy Carroll. (See Dkt. 56 at 3). Consequently, Defendants have failed
to show their responses were made under oath as required by Rule 33. Defendants’
interrogatory responses are therefore legally insufficient and must be re-submitted
in compliance with Rule 33’s oath requirement.
IV. 	Failure to Properly Respond to Plaintiff’s Interrogatories
The 	Court 	further 	agrees 	with 	Plaintiff 	that 	Defendants’ 	interrogatory
responses are substantively deficient. Rule 33 allows parties to serve interrogatories
that relate to any matter that may be the subject of an inquiry under Rule 26(b). See
Fed. R. Civ. P. 33(a)(1), (2). “Interrogatories, like other discovery devices, may inquire
into any discoverable matter, including facts and contentions.” Richard, 332 F.R.D.
at 458–9. 	“In order to ensure that each interrogatory is answered ‘separately’ and
‘fully,’ the responding party is required ‘to make an inquiry and obtain information
to answer the interrogatories which would include obtaining the information to fully
and completely answer the interrogatories. . . .’” Carl v. Edwards, No. CV 16-3863
(ADS) (AKT), 2017 WL 4271443, at *3 (E.D.N.Y. Sept. 25, 2017) (quoting Upstate
Shredding, LLC v. Ne. Ferrous, Inc., No. 3:12-CV-1015 (LEK/DEP), 2016 WL 865299,
at *8 (N.D.N.Y. Mar. 2, 2016)); see Zanowic, 2000 WL 1376251, at *3 n.1 (“Plaintiff
defends his limited response, in part, by claiming lack of knowledge. . . . In responding
to interrogatories, however, a party is under a duty to make a reasonable inquiry
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concerning the information sought in interrogatories, and a party’s failure to describe
his efforts to obtain the information sought by plaintiffs renders his responses
insufficient.”). 	A 	court 	may 	order 	that 	a 	party 	supplement 	its 	answers 	to
interrogatories. See Fed. R. Civ. P. 26(e)(1)(B).
Rule 37 provides that “an evasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
Such a failure exposes the defaulting party to the possibility of sanctions. See Fed R.
Civ. P. 37(a)(5)(A). 	When a party’s interrogatory has not been answered or an
incomplete or evasive answer has been provided, that party may move for an order to
compel the responding party to fully answer the interrogatory. See Fed. R. Civ. P.
37(a)(3)(B).
For 	the 	reasons 	that 	follow, 	the 	Court 	finds 	that 	most 	of 	Defendants’
interrogatory responses fail to comply with the standards set forth in the Federal
Rules of Civil Procedure.
A. 	Interrogatory No. 1 of Set 1 of the July 2024 Interrogatories
Plaintiff’s Interrogatory No. 1 of Set 1 of the July 2024 Interrogatories asks
“who ordered that [Plaintiff] be removed from the Law Library along with the exact
security reason why.” (Dkt. 49 at 5). Defendants’ response states that “[n]o singular
individual removed Plaintiff” and that it was “a decision made through a process in
keeping with facility rules and regulations.” 	(Dkt. 56 at 1). 	This answer is
incomplete. Plaintiff’s question clearly seeks the name of the individual who decided
that Plaintiff would be removed from his law library position. Even if, as Defendants
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contend, more than one individual made this decision, Defendants’ failure to name
any such individuals renders their response insufficient. See, e.g., 	Richard, 332
F.R.D. at 460 (finding interrogatory response deficient where the plaintiff asked,
“who trained you for the program committee chairman position[,]” and the defendant
responded he “was trained by numerous different people.”).
Furthermore, Defendants’ response that Plaintiff’s removal was “a decision
made through a process in keeping with facility rules and regulations” (Dkt. 56 at 1)
is vague and evasive, failing to properly respond to Plaintiff’s interrogatory. See Fed.
R. Civ. P. 37(a)(4). 	Defendants must identify the facility rules and regulations that
purportedly established the process that led to Plaintiff’s removal.
B. 	Interrogatory No. 2 of Set 1 of the July 2024 Interrogatories
Plaintiff’s Interrogatory No. 2 of Set 1 of the July 2024 Interrogatories asks
“who initiated [his] unscheduled transfer” from Elmira to Green Haven, as well as
“the exact reason why [he] needed to be transferred from Elmira.” (Dkt. 49 at 5).
Defendants’ response that “the decision to transfer [Plaintiff] came from DOCCS
Central Office” (Dkt. 56 at 1) is not a complete response. 	This interrogatory seeks
the name of the individual or individuals who were involved in the decision to transfer
Plaintiff from Elmira to Green Haven. Moreover, Defendants failed to respond at all
to Plaintiff’s request for the “reason why [he] needed to be transferred from Elmira.”
(Dkt. 49 at 5). Defendants accordingly must provide a supplemental response to this
interrogatory.
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C. 	Interrogatory No. 3 of Set 1 of the July 2024 Interrogatories
Interrogatory No. 3 of Set 1 of the July 2024 Interrogatories requests that
Defendants “[s]tate exactly (1) what information (OSI Investigator) Meyers had
received, (2) from whom he had received such information, (3) what the results of his
investigation 	were, 	and 	(4) 	if 	his 	investigation 	resulted 	in 	[his] 	having 	been
transferred from Elmira on February 23, 2022.” (Dkt. 49 at 6). 	In response,
Defendants state that Meyers is a nonparty, and they do not know the answer to
Plaintiff’s question. (See Dkt. 56 at 2). 	This response is insufficient. The fact that
Meyers is a nonparty does not relieve Defendants from their duty to make a
reasonable inquiry to obtain information necessary to fully respond to Plaintiff’s
interrogatories. 	See, e.g., Shim-Larkin v. City of New York, No. 16-CV-6099 AJN
KNF, 2018 WL 3187327 at *9 (S.D.N.Y. June 28, 2018), objections overruled, 2018
WL 4636839 (S.D.N.Y. Sept. 27, 2018); Carl, 2017 WL 4271443, at *3; Upstate
Shredding, 	2016 	WL 	865299, 	at 	*8; 	Zanowic, 	2000 	WL 	1376251, 	at 	*3 	n.1.
Defendants 	detail 	no 	such 	efforts. 	Consequently, 	their 	response 	to 	Plaintiff’s
interrogatory fails to satisfy the applicable standard and must be supplemented.
D. 	Interrogatory No. 1 of Set 2 of the July 2024 Interrogatories
Interrogatory No. 1 of Set 2 of the July 2024 Interrogatories requests the “exact
security reason why [Keller] refused to let [Plaintiff] be restored back to the Law
Library even though other clerks who had been removed from such for disciplinary
reasons had been allowed to be reprogrammed back into the Law Library during this
time.” (Dkt. 49 at 7). Defendants responded that “Plaintiff was not returned to the
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Law Library because of the nature of the allegations in his Misbehavior Report, which
included conducting nefarious activities during his program in the library. Those
activities impacted the safety and security of staff and the facility population.” (Dkt.
56 at 2). The Court finds that this answer adequately addresses the question posed
by Plaintiff’s interrogatory.
Plaintiff argues that Defendants’ response is inadequate because “no proof was
ever presented about Plaintiff conducting any nefarious activities[.]” (Dkt. 57 at 3).
This is a challenge to the merits of Defendants’ position and not to the adequacy of
their interrogatory response. It is not a basis for granting a motion to compel.
E. 	Interrogatory No. 2(A) of Set 2 of the July 2024 Interrogatories
Interrogatory No. 2(A) of Set 2 of the July 2024 Interrogatories requests “the
information [Defendants] received regarding an inmate in the Law Library illegally
selling staff information.” (Dkt. 49 at 7). In response, Defendants merely point
Plaintiff to a previously produced “Misbehavior Report and Tier Hearing package”
document. (Dkt. 56 at 2). 	“Answers to interrogatories that incorporate other
documents by reference are strongly disfavored. Reference[s] to depositions, other
answers to the interrogatories, other document production, the complaint itself, or
any other documents are improper and thus unresponsive. In order for an answer to
be adequate it must be a complete response to the interrogatory, specific as possible
and not evasive.” Trueman, 2010 WL 681341, at *3 (citations omitted); see also
Matalavage v. Sheriff of Niagara Cnty., No. 20-CV-1254SK(F), 2023 WL 2043865, at
*8 (W.D.N.Y. Feb. 16, 2023) (“Because interrogatory responses may be used at trial
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and, thus, are akin to testimony, they must be specifically answered by the party to
whom 	they 	are 	directed 	and 	signed 	by 	such 	party 	under 	oath. 	Accordingly,
Defendants’ responses to Plaintiff's First Set of Interrogatories that cross-reference
other responses are improper.”) (citation omitted).
Further, Plaintiff asserts that “no information about an inmate illegally selling
staff information was ever documented” in either the Misbehavior Report or the Tier
Hearing package. (Dkt. 57 at 3-4). Plaintiff is entitled to have the specific information
that Defendants contend responds to this interrogatory identified.
By merely referencing documents, Defendants have failed to appropriately
respond to Plaintiff’s interrogatory. This response must be supplemented.
F. 	Interrogatory No. 2(B) of Set 2 of the July 2024 Interrogatories
Interrogatory No. 2(B) of Set 2 of the July 2024 Interrogatories asks “why
[fellow inmate] Meyers was not immediately sent to the long-term keeplock unit as
[Plaintiff] had been, and why [Plaintiff] had been the only one accused of selling the
employee information.” (Dkt. 49 at 8). 	Defendants respond only that “[t]he case of
each inmate is decided ba[sed] on the unique facts and circumstances surrounding
that 	individual 	inmate” 	and 	assert 	that 	“Plaintiff 	is 	not 	entitled 	to 	receive
information regarding the housing or discipline of other incarcerated individuals”
(Dkt. 56 at 2).
The first sentence of this response is “a boilerplate answer [] no better than no
response.” Trueman, 2010 WL 681341, at *3. 	Additionally, contrary to Defendants’
argument that “Plaintiff is not entitled to receive information regarding the housing
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or discipline of other incarcerated individuals” (Dkt. 56 at 2), Plaintiff “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case. . . .” Fed. R. Civ. P. 26(b)(1). The
housing or discipline of the inmate identified in this interrogatory is plainly relevant
to Plaintiff’s retaliation claim. As Plaintiff correctly points out, his argument that he
was retaliated against may be supported by evidence that Meyers engaged in similar
conduct but did not face similar discipline, information that necessarily requires that
Defendants discuss the discipline of other inmates. (See Dkt. 57 at 4). 	Thus,
Defendants’ response to this interrogatory is deficient and must be supplemented.
G. 	Interrogatory No. 1 of Set 1 of the August 2024 Interrogatories
Interrogatory No. 1 of Set 1 of the August 2024 Interrogatories inquires “why
[Carroll] refused to let [Plaintiff] be restored back to the Law Library despite [his]
various verbal complaints to [Carroll] about this.” (Dkt. 49 at 11). Defendants respond
that “Plaintiff was not returned to the Law Library because of the nature of the
allegations in his Misbehavior Report, which included conducting nefarious activities
during his program in the library. Those activities impacted the safety and security
of staff and the facility population.” (Dkt. 56 at 2-3). 	This response directly and
adequately addresses Plaintiff’s interrogatory. Plaintiff again argues that “no proof
was ever presented about Plaintiff conducting any nefarious activities” (Dkt. 57 at 4),
but that argument fails for the reasons previously discussed. The Court does not find
supplementation of this response necessary.
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H. 	Interrogatory No. 1 of Set 2 of the August 2024 Interrogatories
Interrogatory 	No. 	1 	of 	Set 	2 	of 	the 	August 	2024 	Interrogatories 	asks
Defendants to “[s]tate exactly why [Plaintiff] needed to be immediately taken to the
long term keep lock unit before a hearing even occurred despite no contraband having
been found in [his] cell, especially considering that [he] only ended up being given a
disciplinary sanction of 30 days keep lock.” (Dkt. 49 at 11). 	Defendants’ response
states that “[t]he on duty Watch Commander placed Plaintiff in keep lock based upon
the 	serious 	and 	significant 	charges 	of 	possessing 	contraband, 	unauthorized
literature, and employee information. Plaintiff received due process of law regarding
the charges during the Tier Hearing process.” (Dkt. 56 at 3). This response comports
with the applicable standards and answers Plaintiff’s question.
Plaintiff’s argument to the contrary lacks merit. Plaintiff states that “being
placed in keeplock was not the issue since Plaintiff could have been kept in keeplock
status in the cell he was in.” (Dkt. 57 at 5). Plaintiff’s disbelief of Defendants’ answers
is not a basis to compel. A response to an interrogatory cannot be challenged on the
grounds that the substance of the response is false, unless the movant can prove the
alleged falsity. See Richard, 332 F.R.D. at 459. Challenging the veracity of a party’s
response amounts to a credibility determination, which is not properly resolved in the
context of a discovery motion. See id.
I. 	Interrogatory No. 2 of Set 2 of the August 2024 Interrogatories
Interrogatory 	No. 	2 	of 	Set 	2 	of 	the 	August 	2024 	Interrogatories 	asks
Defendants to “[s]tate exactly why [Keller] refused to endorse the approval of
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[Plaintiff’s] Inmate Claim[.]” (Dkt. 49 at 11). Carroll responded that “[he] was not
involved in processing Plaintiff’s claim. The Security Supervisor is responsible for
claims.” (Dkt. 56 at 3). 	This is an inadequate response, particularly given that this
interrogatory was expressly directed to Keller. Defendants were obligated to make a
reasonable inquiry to obtain information necessary to fully respond to Plaintiff's
interrogatory, which would include reviewing Plaintiff’s inmate claim. See, e.g., Carl,
2017 WL 4271443, at *3; Upstate Shredding, 2016 WL 865299, at *8; Zanowic, 2000
WL 1376251, at *3 n.1. Carroll supplied no reason to conclude that he was unable to
do this, nor did he provide the identity of the Security Supervisor. See Carl, 2017 WL
4271443, at *3. It is well established that a “responding party must make an effort to
answer with the information ‘reasonably available to it [and] . . . is not excused from
making its disclosure because it has not fully investigated the case. . . .’” Trueman,
2010 WL 681341, at *3 (quoting Fed. R. Civ. P. 26(a)(1)(E)). 	This response must be
supplemented.
In sum, and for the reasons set forth above, the Court grants Plaintiff’s motion
to 	compel 	to 	the 	extent 	that 	Defendants 	must: 	(1) 	provide 	properly 	verified
interrogatory response; and (2) supplement the substance of their response to all
interrogatories except Interrogatory No. 1 of Set 2 of the July 2024 Interrogatories,
Interrogatory No. 1 of Set 1 of the August 2024 Interrogatories, and Interrogatory
No. 1 of Set 2 of the August 2024 Interrogatories.
However, because “an interrogatory pursuant to Rule 33 cannot request
documents subject to a Rule 34(a) request,” the Court declines to compel Defendants
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to comply with the portions of Plaintiff’s interrogatories seeking the production of
documents. Capaccio v. Zafuto, No. 23-CV-540-JLS(F), 2025 WL 723207 at *7
(W.D.N.Y. Mar. 6, 2025); see Am. S.S. Owners Mut. Prot. & Indem. Ass’n, Inc. v. Alcoa
S.S. Co., No. 04 CIV. 4309 LAKJCF, 2006 WL 278131, at *3 (S.D.N.Y. Feb. 2, 2006)
(use of interrogatories cannot substitute for Rule 34(a) document demands).
The Court modifies the Scheduling Order in this case (Dkt. 55) to reopen
discovery for 30 days from entry of this Decision and Order solely for the limited
purpose of permitting Defendants to supplement their interrogatory responses.
Dispositive motions shall be filed within 60 days of entry of this Decision and Order.
V. 	Request for Monetary Sanctions
Rule 37(a)(5)(A) provides that if a motion to compel is granted or if the
“requested discovery is provided after the motion was filed—the court must, after
giving an opportunity to be heard, require the party . . . whose conduct necessitated
the motion . . . to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). 	It is well-settled
that pro se litigants who are not attorneys are not entitled to attorney's fees. See Kay
v. Ehrler, 499 U.S. 432, 435 & n.5 (1991) (collecting cases); Hawkins v. 1115 Legal
Serv. Care, 163 F.3d 684, 694–95 (2d Cir.1998) (same) Pro se litigants may be
entitled, 	however, 	to 	reimbursement 	of 	documented 	and 	reasonable 	litigation
costs. See, e.g., Zalaski v. City of Hartford, Conn., 723 F.3d 382, 395 (2d Cir.2013);
Lozano v. Peace, No. CV 05-0174(SJF)(ETB), 2005 WL 1629644, *2-3 (E.D.N.Y.
2005) (declining to grant request for costs where pro se plaintiff failed to demonstrate
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any expenditures); Jermosen v. Smith, 733 F. Supp. 13, 14 (W.D.N.Y. 1990) (awarding
reimbursement of photocopying expenses where request was supported by a detailed
affidavit).
A motion for fees may be denied only where (1) “the movant filed the motion
before attempting in good faith to obtain the disclosure or discovery without court
action;” 	(2) 	“the 	opposing 	party’s 	nondisclosure, 	response, 	or 	objection 	was
substantially justified; or” (3) “other circumstances make an award of expenses
unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii); see Hassoun v. Searls, 524 F. Supp. 3d 101,
109 	(W.D.N.Y. 	2021) (“It 	is 	widely 	accepted 	that 	an 	award 	of 	expenses
under Rule 37(a)(5)(A) is mandatory unless one of the three exceptions applies.”)
(cleaned up) (quoting Wager v. G4S Secure Integration, LLC, No. 1:19-CV-03547 MKV
KNF, 2021 WL 293076, at *4 (S.D.N.Y. Jan. 28, 2021)).
If a motion to compel is granted in part and denied in part, “the court . . . may,
after giving an opportunity to be heard, apportion the reasonable expenses for the
motion.” Fed. R. Civ. P. 37(a)(5)(C). Courts in this Circuit have concluded that “Rule
37(a)(5)(C) effectively incorporates the substantive standards of Rule 37(a)(5)(A)[.]”
Rahman v. Smith & Wollensky Rest. Grp., No. 06CV6198, 2009 WL 2169762, at *2
n.1 (S.D.N.Y. July 21, 2009); accord Alliance Indus., Inc. v. Longyear Holding, Inc.,
No. 08CV490S, 2010 WL 3991636 at *5 (W.D.N.Y. Oct. 12, 2010). 	Therefore, in
determining whether to award expenses under Rule 37(a)(5)(C), courts must consider
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the three exceptions listed under Rule 37(a)(5)(A). See S.E.C. v. Yorkville Advisors,
LLC, No. 12 Civ. 7728(GBD)(HBP), 2015 WL 855796, at *6 (S.D.N.Y. Feb. 27, 2015).
To recover expenses under Rule 37(a)(5)(A), “the only requirements are that a
party has made a motion for an order compelling disclosure or discovery and that the
motion is granted.” John Wiley & Sons, Inc. v. Book Dog Books, LLC, No. 13 Civ. 816
(WHP) (GWG), 2014 WL 12902178, at *1 (S.D.N.Y. June 5, 2014) (quotations and
citation omitted). 	The prevailing party therefore “is presumptively entitled to an
award 	of 	motion 	expenses 	. 	. 	. 	.” Kregler 	v. 	City 	of 	New 	York, 	No. 	08 	Civ.
6893(VM)(MHD), 2013 WL 1415228, at *2 (S.D.N.Y. Apr. 8, 2013). 	Thus, “[t]he
burden is ‘on the disobedient party to avoid expenses by showing that his failure is
justified or that special circumstances make an award of expenses unjust.’” White v.
Larusch, 532 F. Supp. 3d 122, 124 (W.D.N.Y. 2021) (quoting Novak v. Wolpoff &
Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008)).
Given that the Court has granted Plaintiff’s motion to compel, Defendants bear
the burden of showing that Plaintiff is not entitled to reasonable expenses for
bringing his motion. 	White, 532 F. Supp. 3d at 124. 	Defendants have failed to
respond to Plaintiff’s motion to compel, and have therefore failed to meet this burden.
Thus, an award of costs and fees is warranted. See, e.g., Richard v. Dignean, No. 11-
CV-6013W, 2017 WL 3083916 at *4 (W.D.N.Y. July 20, 2017) (“defendants should
reimburse [the pro se plaintiff] for the reasonable costs, if any, he has incurred as a
result of defendants’ delayed discovery responses and the need to file a motion to
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obtain them.”). The Court will allow Plaintiff an opportunity to document his
reasonable expenses, as set forth below.
However, the Court denies Plaintiff’s request that he simply be awarded $500.
(See Dkt. 49 at 3). Plaintiff has not demonstrated that such an award is warranted.
Plaintiff must document his reasonable expenses in order to be compensated for
them, as set forth above.
CONCLUSION
For the foregoing reasons, the Court grants in part Plaintiff’s motion to compel
(Dkt. 49) pursuant to Federal Rule of Civil Procedure 37. Defendants are ordered to
verify and supplement their responses to Plaintiff’s interrogatories as set forth above
no later than 30 days from entry of this Decision and Order. Dispositive motions, if
any, shall be filed no later than 60 days from entry of this Decision and Order.
Plaintiff must submit a sworn affidavit detailing the reasonable expenses he
incurred in litigating the portion of this motion that the Court has granted,
accompanied by any documentation demonstrating his expenditures, no later than 30
days from this Decision and Order. Defendants will have 14 days upon the filing of
Plaintiff’s affidavit to submit a response, at which time the Court will take the matter
under advisement.
SO ORDERED.
________________________________
COLLEEN D. HOLLAND
United States Magistrate Judge
Dated: 	Rochester, New York
July 2, 2025
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