Waller v. Kelley et al

Filing 79

ORDER granting in part and denying in part 77 Plaintiff's Motion to Compel. Signed by Magistrate Judge J. Thomas Ray on 08/21/2012. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

KENNETH L. WALLER, JR.
ADC #103829
V.

PLAINTIFF

1:11CV00095 JLH/JTR

WENDY KELLEY, Deputy Director,
Arkansas Department of Correction, et al,

DEFENDANTS

ORDER
Plaintiff has filed a Motion asking the Court to compel separate Defendant
Kelley to answer his June 7, 2012 discovery requests. See docket entry #77.
Defendant Kelley has filed a Response. See docket entry #78. Before addressing the
merits of that Motion, the Court will summarize the relevant procedural history.
I. Procedural History
On November 1, 2011, Plaintiff filed this pro se § 1983 action alleging that
several members of the prison medical staff failed to provide him with adequate
medical care for digestive problems. See docket entry #2. His only claim against
separate Defendant Kelley is that she allegedly failed to take corrective action in
response to his medical grievances about the inadequate medical care he was
receiving. Id.

In November of 2011 and March of 2012, Plaintiff sent Defendant Kelley a
total of 12 Requests for Production of Documents. See docket entry #78, Exs. A and
B. In April of 2012, Plaintiff sent her 26 Interrogatories. Id., Ex. C. Finally, on June
7, 2012, Plaintiff sent her a document entitled “Second Set of Interrogatories and
Requests for Production of Documents.” See docket entry #78, Ex. D. However, that
document actually contained 14 Interrogatories, 14 Requests for Production of
Documents, and 14 Requests for Admission. Id. Defendant Kelley objected to all of
those discovery requests because Plaintiff’s previous discovery exceeded the limit of
25 Interrogatories. See Fed. R. Civ. P. 33(b)(2).
II. Discussion
In the current Motion, Plaintiff asks the Court to compel Defendant Kelley to
answer each of the 14 Interrogatories, 14 Requests for Production of Documents, and
14 Requests for Admissions that he sent her on June 7, 2012. See docket entry #77.
Additionally, Plaintiff seeks reimbursement for the $27 in postage, copying charges,
and other unspecified expenses he incurred preparing his Motion to Compel. Id.
A.

Interrogatories
Federal Rule of Civil Procedure 33(a)(1) provides that a party may serve no

more than 25 interrogatories. However, a court may grant a party permission to serve
more than 25 interrogatories if: (1) the additional discovery is not unreasonably
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duplicative or cumulative; (2) the requesting party has not already had ample
opportunity to obtain the information; and (3) need for the requested information
outweighs the burden and expense of producing it. See Fed. R. Civ. P. 33(a)(1) and
26(b)(2)(C).
It is unclear whether any of the 14 disputed Interrogatories are duplicative or
cumulative. If any of them are in fact duplicative, Defendant Kelley can refer Plaintiff
to her previously provided responses. Additionally Defendant Kelley has not
explained how she will be unduly burdened by answering those 14 Interrogatories,
none of which appear to be burdensome.
Plaintiff is a pro se prisoner with no legal training and limited access to legal
materials. Additionally, his incarceration requires him to use only written discovery,
without the option of taking depositions.
The Court will construe Plaintiff’s Motion to Compel as a motion for leave to
send Defendant Kelley 14 additional Interrogatories and finds good cause for granting
that motion. Accordingly, within fourteen days of the entry of this Order,
Defendant Kelley must respond to Plaintiff’s 14 Interrogatories.1
B.

Requests for Admission

1

Defendant Kelley had a very limited role in Plaintiff’s inadequate medical care
claims. For that reason, this will be the final written discovery that Plaintiff wil be
allowed to submit to Defendant Kelley.
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As previously mentioned, Plaintiff’s June 7, 2012 discovery requests also
contained 14 Requests for Admission. Local Rule 33.1(c) provides that request for
admission may not be combined with any other discovery requests. Thus, Defendant
Kelley is not required to answer any of the 14 Requests for Admission.
C.

Requests for Production of Documents
Defendant Kelley admits that it was permissible for Plaintiff to combine

Interrogatories and Requests for Production of Documents in his June 7, 2012
discovery requests. See docket entry #78. Additionally, Defendant Kelley did not
separately object to any of Plaintiff’s Requests for Production of Documents. See
Local Rule 33.1(b) (providing that: “Objections must be made to the specific
interrogatory or request, or part thereof if it is compound”). Instead, her only objection
was that Plaintiff had exceeded his number of permissible Interrogatories. However,
the Federal Rules of Civil Procedure do not limit the number of Requests for
Production of Documents. See Fed. R. Civ. P. 34.
In her Response to the Motion to Compel, Defendant Kelley now argues that
the requests for production of documents were confusing and “subsumed” her
responses to the included Interrogatories. See docket entry #78 at 2. As previously
discussed, a pro se litigant should be granted leniency when drafting discovery

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requests.2
Accordingly, Defendant Kelley must, within fourteen days of the entry of this
Order, answer the 14 Requests for Production of Documents.
D.

Requests for Cost
An award of costs to Plaintiff is unwarranted. See Fed. R. Civ. P. 37(a)(5)(C).

Accordingly, that portion of the Motion to Compel is denied.
III. Conclusion
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Compel (docket
entry #77) is GRANTED in part and DENIED in part, as specified in this Order.
Dated this 21st day of August, 2012.

UNITED STATES MAGISTRATE JUDGE

2

Of course, Defendant Kelley is not required to produce what she does not

posses.
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