Richardson v. Kelley et al

Filing 75

ORDER denying 73 Plaintiff's Motion for Sanctions. Signed by Magistrate Judge J. Thomas Ray on 12/24/2013. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

EVERY DONELLE RICHARDSON,
ADC #139311
V.

PLAINTIFF

5:12CV00250 BSM/JTR

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

DEFENDANTS

ORDER
Plaintiff has recently filed a Motion for Sanctions alleging that Defendant
Hubbard failed to properly comply with a discovery Order. Doc. 73. Specifically, on
October 18, 2013, the Court ordered Defendant Hubbard to file a Supplemental
Answers to discovery that clarified whether the infection on Plaintiff's right ankle was
cultured to determine the specific kind of bacteria involved, and if so, the name of the
bacterial infection. Doc. 71. The Court further ruled that, if the bacterial infection
was E. coli, Defendant Hubbard must produce documents regarding the proper
treatment for E. Coli and the possible complications if that infection is not properly
treated. Id.
In her Supplemental Answers, Defendant Hubbard explained that a culture
demonstrated that the wound was infected with “a moderate growth of Enterococcus
Faecalis and a heavy growth of E. coli.” Doc. 72 at 3. Defendant Hubbard did not

produce any documents regarding the proper treatment for E. Coli or the possible
complications if that infection is not properly treated. Instead, she referred Plaintiff
to the Affidavit of Dr. Glen Babich, which was attached to her Motion for Summary
Judgment. Id. Dr. Babich’s Affidavit is an eight page chronology of the medical care
Plaintiff actually received for his right ankle, both before and after Defendants learned
that it was infected with E. coli. Doc. 55, Ex. C. The Affidavit does not describe the
usual or generally accepted course of treatment for E. coli infections or the possible
complications if that infection is not properly treated.
Thus, the Court agrees with Plaintiff that Defendant Hubbard’s Supplemental
Answer was improper because she did not produce the requested documents or refer
to documents describing the proper treatment for E. coli and the possible
complications if that infection is not properly treated. However, in her Response to
the Motion for Sanctions, Defendants Hubbard now explains that she does not have
any documents that are responsive to that discovery request. Doc. 72.
The Court cannot order Defendant Hubbard to produce what she does not
posses. Additionally, sanctions are unwarranted because Plaintiff has not
demonstrated that he incurred any expenses in filing his Motion for Sanctions or that
he was prejudiced by the delay in learning that Defendant Hubbard does not have any
documents that are responsive to his discovery request.
-2-

IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Sanctions (Doc.
73) is DENIED.
Dated this 24th day of December, 2013.

UNITED STATES MAGISTRATE JUDGE

-3-