Trice v. Eversole et al

Filing 38

ORDER the motion for Conclusion, 36 is denied however the document will be treated as a response to the motion for judgment on the pleadings filed by defendant Bonewell (Doc 30). Motion for extension of time is granted 37 , and Plaintiff is given until 2/21/2012 to submit his summary judgment motion. Signed by Honorable James R. Marschewski on January 12, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

ELLIS TRICE
v.

PLAINTIFF
Civil No. 11-2073

DONALD EVERSOLE, Detective,
Crawford County Sheriff’s Department; and
PATTI BONEWELL, Detective,
Crawford County Sheriff’s Office

DEFENDANTS

ORDER
Separate Defendant Donald Eversole has filed a motion to compel (Doc. 32) and a motion
for an extension of time (Doc. 37) to file his summary judgment motion. Plaintiff has filed a
motion (Doc. 36) asking for a conclusion.
Motion to Compel (Doc. 32)
On November 11, 2011, Defendant Eversole filed a motion to compel answers to
discovery requests (Doc. 32). Defendant Eversole states he propounded interrogatories and
requests for production of documents to the Plaintiff on August 10, 2011. Defendant indicates
he received deficient and untimely discovery responses from the Plaintiff. Defendant then
requested supplemental responses.

To date, Defendant states he has not received any

supplemental responses. Plaintiff has not responded to the motion to compel.
The discovery rules are to be given a broad, liberal interpretation. See e.g., Edgar v.
Finley, 312 F.2d 533 (8th Cir. 1963). Rule 26(b)(1) of the Federal Rules of Civil Procedure

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provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense."
This is a civil rights case in which the Plaintiff alleges that on July 2, 2008, he was
unlawfully “jumped on” by police at an empty house in Van Buren, Arkansas. He asserts he was
unlawfully arrested without a warrant in violation of his Fourth Amendment rights and his
vehicle and its contents were seized. He also alleges he was held in jail to allow police officers
in Little Rock, Arkansas, to enter his home and confiscate numerous items of personal property.
Plaintiff alleges his business property was also seized. Plaintiff indicated that for sixteen
years he owned and operated Ellis Trice Aircraft Cleaning Services at the Little Rock, Arkansas,
airport.
In Interrogatory Number Two Defendant asked for the names, addresses, and telephone
numbers of all employers the Plaintiff had worked for since he was 18, including the beginning
and ending dates of employment, a description of his job, the rate of pay, and the reason for
termination. Request for Production Number Seven asks for a signed release for employment
information.
Plaintiff responded that he could not recall every job he had held since he was 18.
Plaintiff refused to sign the release for employment information. Defendant maintains he is
entitled to this information because, in responding to another interrogatory, Plaintiff stated his
business had been taken from him and he had been kicked off the airport.
Interrogatory Number Two is overly broad. Plaintiff is fifty-six years old and has stated
he worked in the same business for the last sixteen years. However, the Court believes
Defendant is entitled to inquire into Plaintiff’s most recent employment history. Interrogatory
Two when limited to the past five years of employment history provides relevant information.
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Plaintiff is directed to provide the Defendants with his employment history for the last five
years. If Plaintiff has not had any other jobs during this time frame except for his selfemployment, he should so state under oath.
Interrogatory Number Three asks for the name, address, and telephone number of each
and every doctor and hospital Plaintiff had been seen, or treated, at in the past ten years. Request
for Production Six asks for a signed medical release. First, the Court believes this discovery
request should be limited to five years. Thus, Plaintiff is directed to provide his medical history
for the past five years. If he truly has not been seen or treated by a doctor in the past five years,
he should state so under oath.
Plaintiff is also directed to sign the medical authorization so that Defendant may obtain
his records from the doctors or facilities identified in response to Interrogatory Number Three.
Interrogatory Number Thirteen asks the Plaintiff to state “the basis for any claims for
actual or compensatory damages, including any amounts expended for any purpose which will
be claimed as damages at trial.” Plaintiff responded: “Business and Personal.”
The Court agrees this response is inadequate. Plaintiff is directed to provide Defendant
with an itemized list of the business and personal damages he is seeking to recover in this case.
Plaintiff should provide this information to the Defendant by February 3, 2012.
Request for Production Number Two asks the Plaintiff to provide “any and all
documents, photographs, audio tapes, video tapes, or other documentation made in connection
with this lawsuit, which in any way substantiate or provide support for the allegations made in
your complaint.” Plaintiff did not respond to this request. Plaintiff is directed to provide
Defendant with a response to this request by February 3, 2012.

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Request for Production Number Four asks for “any and all notes, memorandums,
calendars or other documents by whatever name called, generated or kept by the Plaintiff(s) with
respect to the allegations contained in the Plaintiff’s complaint or the facts made basis of the
complaint, whether created at the time of the event or at a later date.” Plaintiff responded: “I
have no nots I have no money for Documents.” Plaintiff cannot be made to produce what
doesn’t exist. His response is sufficient.
Plaintiff did not provide any response to Request for Production Number Five. Plaintiff
is directed to provide Defendant with a response to this request by February 3, 2012.
Plaintiff did not provide any response Interrogatory Number Fourteen. Plaintiff is
directed to provide Defendant with a response to this request by February 3, 2012.
Interrogatory Number Fifteen asks the Plaintiff to consider the discovery requests to be
“continuing” and to furnish Defendant with any additional information as he receives it. Plaintiff
responded: “No.”
Rule 26(e)(1)(A) provides that a party who has responded to discovery requests “must
supplement or correct its disclosure or response: in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect.” This rule places
all parties to a lawsuit under an obligation to provide any new or revised information to the
opposing party upon learning the information previously supplied in discovery responses is
incomplete or incorrect. Thus, Plaintiff must supplement any discovery responses with new or
revised information as it becomes available to him.
Accordingly, Defendant Eversole’s motion to compel (Doc. 32) is granted in part and
denied in part as outlined above. Plaintiff is directed to provide Defendant Eversole with the
required responses to the discovery requests by 5:00 p.m. on February 3, 2012. If Plaintiff fails
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to provide the discovery responses, Defendant Eversole should notify the Court by filing a
motion to dismiss.
Motion for Extension of Time (Doc. 37)
The motion for an extension of time (Doc. 37) is granted. Defendant Eversole is given
until February 21, 2012, to submit his summary judgment motion.
Motion for Conclusion (Doc. 36)
It is not clear what relief Plaintiff is seeking. However, it appears this document is more
appropriately characterized as a response to the motion for judgment on the pleadings filed by
Defendant Bonewell (Doc. 30). The motion for conclusion (Doc. 36) is denied. However, the
document will be treated as a response to the motion for judgment on the pleadings.
IT IS SO ORDERED this 12th day of January 2012.
/s/

J. Marschewski

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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