-JJM Orraca v. Washborn et al, No. 1:2010cv00494 - Document 29 (W.D.N.Y. 2011)
Court Description: DECISION AND ORDER denying 18 Motion to Compel. Signed by Hon. Jeremiah J. McCarthy on 9/15/11. (Court has mailed a copy of this D&O to plaintiff). (DAZ)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________ JOSE ORRACA (93-A-9300), Plaintiff, DECISION AND ORDER v. 10-CV-00494(S)(M) WASHBORN, et al., Defendants. _______________________________________ This action has been referred to me by Order of Hon. William M. Skretny for supervision of pretrial proceedings in accordance with 28 U.S.C. §636(b)(1) [11].1 Before me is plaintiff s motion to compel discovery [18]. Oral argument was held on September 7, 2011 [28]. For the following reasons, plaintiff s motion is denied, without prejudice. BACKGROUND Plaintiff commenced this action pursuant to 42 U.S.C. §1983, alleging that while he was housed at Southport Correctional Facility ( Southport ), defendants violated his rights by confiscating and opening his legal mail outside of his presence and confiscating his personal mail. Complaint [1]. He moves to compel production from defendants of every copy of the legal documents confiscated from [him] [18]. According to plaintiff, he submitted [a] request for these documents . . . several times to the defendants pursuant to Rule 34. . . but have [sic] not . . . received confiscated . . . papers that are legal and cannot be duplicated. Id. 1 Bracketed references are to the CM/ECF docket entry. In response, defendants argue that plaintiff s motion is not predicated on any discovery request, and that even treating his letter postmarked July 21, 2011 (served after the July 5, 2011 motion to compel) as a discovery request seeking the confiscated mail, they have sufficiently responded to it by representing in their discovery response [24] that they are no longer in possession of any of plaintiff s previously confiscated documents . Murphy Declaration [25], ¶¶8-9. ANALYSIS [I]n the absence of proof of demands actually being served upon defendants, a motion to compel their response is premature. Fox v. Poole, 2006 WL 2528535, *2 (W.D.N.Y. 2006)(Scott, M.J.). There is nothing before me establishing that plaintiff s motion to compel disclosure of the confiscated documents was preceded by a document demand seeking such discovery. Even assuming that plaintiff s motion was not premature, I would deny it, since defendants have represented in a discovery response that they are not in possession of any responsive documents [24]. Changing course from what he initially sought in his motion, plaintiff s reply seeks disclosure of the book log entry of all legal mail sent to plaintiff at Southport Correctional Facility [26]. I will not consider new arguments in reply papers. Precisionir Inc. v. Clepper, 693 F.Supp.2d 286, 297 (S.D.N.Y. 2010). Even if plaintiff had sought this relief in his initial motion, I would deny it as premature because there is no indication that -2- plaintiff served a document demand seeking this discovery. See Fox, 2006 WL 2528535 at *2. CONCLUSION For these reasons, plaintiff s motion to compel [18] is denied, without prejudice to refiling after proper discovery demands are made. SO ORDERED. Dated: September 15, 2011 /s/ Jeremiah J. McCarthy JEREMIAH J. MCCARTHY United States Magistrate Judge -3-
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