United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
an inmate incarcerated at the Southern Ohio Correctional
Facility (SOCF), brings this action pursuant to 42 U.S.C.
§ 1983 for violations of his civil rights. This matter
is before the Court on (1) plaintiffs motion for an order
compelling discovery (Doc. 63), defendants' response in
opposition (Doc. 67) and plaintiffs reply (Doc. 70), (2)
plaintiffs motion to strike (Doc. 65), (3) plaintiffs motion
to issue service (Doc. 71), and (4) plaintiffs motion to
extend the dispositive motion deadline (Doc. 79).
moves the Court to strike declarations he purportedly filed
on September 25, 2017. (Doc. 65). The docket shows that
plaintiff did not file any documents with the Court on that
date. The Court will therefore deny plaintiffs motion.
filed his motion to compel discovery on September 22, 2017.
(Doc. 63). Plaintiff moves for an order under Fed.R.Civ.P. 37
compelling defendants to produce (1) responses to plaintiffs
first set of interrogatories, and (2) documents in response
to plaintiffs first, second and third requests for production
of documents. Plaintiff alleges he submitted document
requests to defendants on March 1, 2017, May 18, 2017 and
August 18, 2017, but defendants have not provided complete
responses to his document production requests. Plaintiff also
alleges that defendants have not responded to his
interrogatories, which he mailed in two envelopes on May 18,
2017 and July 12, 2017. Plaintiff has attached a declaration
to his motion indicating that he sent a letter to counsel in
August 2017 about defendants' failure to respond to his
interrogatories and his third request for production of
documents, but defendants still have not answered plaintiffs
interrogatories. (Doc. 63 at 6-9). Plaintiff states in the
declaration that he has attempted in good faith to obtain
discovery from defendants through their counsel without
involving the Court but he has not been successful. Plaintiff
seeks an order compelling defendants to comply with his
discovery requests and imposing a monetary sanction of $10,
000.00 on defendants.
response, defendants argue that plaintiffs motion to compel
should be denied because they have complied with, or are in
the process of complying with, plaintiffs outstanding
discovery requests. (Doc. 67). Counsel states that he
received plaintiffs first request for production of documents
on August 28, 2017 and mailed defendants' response on
October 2, 2017. Counsel acknowledges that his office
received plaintiffs complete set of interrogatories on July
27, 2017, but counsel alleges the interrogatories were
inadvertently overlooked and were never answered. Counsel
asserts that "a substituting attorney" will obtain
answers to the interrogatories as quickly as possible and,
upon completing defendants' response, file a notice with
the Court that plaintiffs discovery request has been
fulfilled. Defendants also urge the Court to deny plaintiffs
motion to compel on the ground plaintiff did not exhaust all
extrajudicial efforts to resolve the discovery dispute before
filing his motion to compel.
reply filed on October 17, 2017, plaintiff contends his
discovery requests have not been fulfilled. (Doc. 70).
Plaintiff alleges that defendants have not produced the
following information and documents in response to discovery
requests he made on March 1, 2017: (1) DVR footage other than
footage of an assault by inmate Garcia on plaintiff on
October 2, 2014, including DVR footage from April 23, 24, 25
and 26, 2015; (2) the name, log date, and time of cell
searches of two inmates on March 6, 2015; (3) a copy of a
telephone message plaintiff left on the PREA help hotline on
March 7, 2015; and (4) a copy of plaintiff s
"institutional separation/locate separation."
Plaintiff also states that defendants still have not
responded to his interrogatories.
has adequately fulfilled his obligations to exhaust
extrajudicial efforts to resolve the parties' discovery
dispute and to include a certification with his motion that
he in good faith conferred with defendants' counsel in an
effort to obtain interrogatory responses without court
action. See Fed. R. Civ. P. 37(a)(1); S.D. Ohio Civ.
R. 37.1. Plaintiff has attached a declaration to his motion
to compel indicating that he sent counsel a letter in August
2017 regarding his outstanding discovery requests, and he has
submitted a letter counsel sent him in response dated August
19, 2017, informing plaintiff that his follow-up discovery
requests were under review and plaintiff could expect
responses shortly. (Doc. 63 at 6-9, 11). Counsel acknowledges
in defendants' response to the motion to compel filed on
October 2, 2017 that there had been some delay in responding
to plaintiffs document requests but the responses had been
sent, and counsel explained that plaintiffs interrogatories
had been inadvertently overlooked and defendants had not
responded to those. (Doc. 67 at 2). Counsel advised the Court
that responses would be provided "as quickly as
possible" and that counsel would file a notice once
plaintiffs discovery request had been fulfilled.
(Id.). In light of counsel's representations,
plaintiff was not required to take additional steps or incur
further delay before filing his motion to compel answers to
not appear that defendants have complied with plaintiffs
outstanding request for answers to interrogatories to date.
Defendants have not filed a notice of compliance with
plaintiffs interrogatories with the Court. Further,
defendants requested an extension of the dispositive motion
deadline on November 6, 2017, on the grounds discovery was
still being conducted and the interrogatory responses had not
yet been provided to plaintiff. Plaintiff subsequently moved
for an extension of the dispositive motion deadline on
February 5, 2018, stating that he had not yet received
answers to the interrogatories. (Doc. 79). The Court will
therefore grant plaintiffs motion to compel insofar as
plaintiff seeks answers to his interrogatories.
Court will deny plaintiffs motion to compel the disclosure of
documents, including the specific items plaintiff has
identified in his reply memorandum. (Doc. 70 at 2-3).
Defendants objected to numerous document requests, including
requests for a copy of plaintiff s "institutional
separation/locate separation" (First Request for
Production of Documents, No. 6); information related to cell
searches that occurred on March 6, 2015 (Id., No.
13); DVR footage from April 2015 (Id., No. 16); and
a PREA help hotline telephone recording from March 7, 2015
(Id., No. 22). (Doc. 63 at 17-24, 29-31). Plaintiff
has not addressed defendants' objections and has not
shown that they are unsupported. Plaintiff therefore is not
entitled to an order compelling the disclosure of documents
or information sought in his First, Second and Third Requests
for Production of Documents.
is not entitled to a monetary sanction under Fed.R.Civ.P. 37
for defendants' failure to respond to his
interrogatories. Rule 37(d) provides that when a party fails
to serve written responses to interrogatories, a party or
counsel shall be responsible for the payment of
"reasonable expenses, including attorney's fees,
caused by that failure. .. ." Fed.R.Civ.P. 37(d)(3).
Plaintiff has not incurred attorney fees in connection with
defendants' failure to respond to his interrogatories,
and his request that defendants be sanctioned $10, 000.00 for
their omission is not reasonable.
plaintiff has filed a motion to issue service asking that the
Court issue service on C/O Jamie Gillum, C/O Kory Rogers and
C/O Justin Johnson (previously identified as Kody Johnson).
(Doc. 71). The Court issued a Report and Recommendation on
September 28, 2017 recommending that plaintiffs motion to
issue service on these individuals be denied. (Doc. 64). The
Report and Recommendation is pending before the District
Judge. Plaintiff must therefore seek any relief he requests
in this regard from the District Judge.
moves for an extension of the dispositive motion deadline
(Doc. 79), which expired on February 9, 2018 (See
Doc. 78). In light of the discovery delays in this
case, the Court will grant ...