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Payne v. Gifford

United States District Court, S.D. Ohio, Western Division

March 10, 2017

C/O NICHOLAS J. GIFFORD, et al., Defendants.

          Barrett, J.


          Stephanie K. Bowman, United States Magistrate Judge

         I. Background

         On June 30, 2016, the undersigned entered an Order and a Report and Recommendation (“R&R”) that recommended the dismissal of claims against one Defendant, while permitting Plaintiff's Eighth Amendment claims to proceed against Defendants Gifford, Dillow, and Tipton. (Doc. 6). Since then, Plaintiff has filed a number of motions. Plaintiff recently filed three more discovery-related motions, as well as a motion seeking to amend/correct his complaint. (Docs. 30, 33, 34, 36). For the following reasons, one of Plaintiff's motions to compel discovery will be granted in part, but his remaining three motions will be denied.

         II. Analysis

         A prior motion by Plaintiff to compel the Defendants to respond to his written discovery requests was denied in a written Order filed on November 21, 2016. (Docs. 24, 29). However, in explaining that the denial was “without prejudice to renew, ” the Order clarified that some of the Defendants' objections to production appeared to be without merit.

[T]the undersigned strongly cautions Defendants that portions of their memoranda in opposition to Plaintiff's motions are not well-taken. For example, Defendants object that Plaintiff's discovery requests are premature because they were served prior to a Case Management Conference under Rule 26(f), Fed.R.Civ.P. However, Rule 26(f) by its terms does not apply to “a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), ” which includes pro se actions brought by persons in custody. Similarly, Local Rule 16.2 state that pro se actions brought by persons in custody are excluded from the general requirements of Rule 16(b), Fed.R.Civ.P. Plaintiff's requests are not premature. This Court entered a calendar order on August 10, 2016 that commenced a period of discovery, with a deadline of May 31, 2017.
In addition, Defendants suggest that they have not responded to discovery directed to Nurse Tipton, because she no longer works for ODRC, and counsel similarly represents that Defendant Gifford is out on medical leave with no known date of expected return. However, those facts do not excuse defense counsel from responding to written discovery requests directed to his clients. Defense counsel entered his appearance and filed an Answer on behalf of all three Defendants on August 9, 2016. The Court presumes counsel retains the ability to contact his clients at their last known addresses for purposes of timely responding to outstanding discovery requests, or to seek an extension of time if needed to do so. Currently, the responses to Plaintiff's written discovery requests appear to be overdue. The undersigned declines to compel Defendants to respond, based on the Court's presumption that counsel will continue to work to fulfill his obligation (and that of his clients) to respond to outstanding requests as soon as practicable, and to communicate with Plaintiff his progress in that regard.
Last, to the extent that Defendants protest that they cannot be expected to provide documents without a formal request for the production of documents, that type of response is precisely why Rule 37.1 exists. The Local Rule requires parties to exhaust all extrajudicial means for resolving discovery disputes prior to filing any discovery related motion. The Court understands that defense counsel has made at least two attempts to date to clarify Plaintiff's original interrogatories. While Plaintiff may not have fully understood his discovery obligations, counsel remains obligated to reasonably construe all pro se requests, including but not limited to requests for the production of documents, considering Plaintiff's motion to compel puts the Defendants on notice that he is in fact seeking the production of documents.

(Doc. 29 at 2-3).

         On December 30, 2016, Plaintiff filed a second motion to compel discovery from the Defendants, asserting that the Defendants have continued to fail to respond to his requests for production despite multiple requests. Attached to Plaintiff's motion are two pieces of correspondence from defense counsel, dated October 4, 2016 and November 22, 2016. The October letter indicates that defense counsel is working on interrogatory responses which may “take a week or two.” (Doc. 30 at 5). As to the requests for production of documents, defense counsel states that his paralegal is “out until next week, ” but will work on the production upon her return. (Id.) The November 22, 2016 letter similarly reassures Plaintiff that the paralegal, who is “out [again] this week” is continuing to gather responses to Plaintiff's discovery requests. Defense counsel explains that support staff have “inquired” to obtain records from the institution, suggesting that they are continuing to “work[] on your request.” (Id. at 6).

         In a formal response to Plaintiff's second motion to compel, counsel represents that two Defendants (Gifford and Dillow) have provided interrogatory responses, but admits that Nurse Tipton still has not completed her responses.[1] Counsel notes that he has repeatedly requested “Plaintiff's patience while the requests are being processed.” (Doc. 32 at 2-3). With respect to the overdue document production, defense counsel states that he “is in receipt” of “approximately three inches of [responsive] documentation” which must be “culled” and/or appropriately redacted in accordance with any assertions of privilege or objections. The documents must also be BATES stamped. (Doc. 32 at 3). Noting Plaintiff's complaint that he was moved to another institution before he could review responsive DVR footage, [2] counsel promises that arrangements “will be made to allow Plaintiff to review the footage under the rules of [his current] institution.” (Id.)

         With all due respect to defense counsel, Defendants' response is insufficient. The Federal Rules of Civil Procedure generally impose 30-day time limits for parties to respond to discovery requests. While those time periods frequently are extended by agreement, in this case Defendants offer no explanation sufficient to explain the length of delay about which Plaintiff complains. Defendants were expressly warned by this Court more than three and a half months ago that responses to Plaintiff's discovery requests then appeared to be overdue. In light of the prior dispute and acceptance of prior representations that the overdue discovery would be produced, the Court cannot continue to ignore the failure to provide Plaintiff with discovery.

         The Court is not without sympathy for the predicament of counsel who appears to be short-staffed, [3] and understands the type of institutional delays that can result from obtaining discovery from prison officials. On the other hand, there comes a point in time when such difficulties simply cannot excuse further delays. Therefore, the undersigned will grant Plaintiff's motion in part, and ...

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