Dmytryszyn v. Clements et al

Filing 87

ORDER granting 70 Motion to Compel; granting in part and denying in part 71 Motion to Compel; denying 72 Motion for Review. Defendants are directed to supplement their discovery responses consistent with the direction in this Order no later than May 13, 2015. By Magistrate Judge Nina Y. Wang on 04/29/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-03241-CMA-NYW
ADAM DMYTRYSZYN,
Plaintiff,
v.
TOM CLEMENTS, Executive Director,
LIEUTENANT BERNADETTE SCOTT,
CAPTAIN T. SCOTT,
LIEUTENANT MAGELSON,
MAJOR BILDERAVA,
CAPTAIN BOLT,
SUPERINTENDENT JAMES FALK, and
SERGEANT STEPHEN LADD,
Defendants.

ORDER ON PENDING DISCOVERY MOTIONS
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Adam Dmytryszyn’s Motion to Compel
to Compel Production of Document (“Motion to Compel Documents) [#70], Motion to Compel
to Compel Defendants to Answer Plaintiff's Interrogatories and Review the Objections Thereto
(“Motion to Compel Interrogatory Responses”) [#71], and Motion to Review Sufficiency of
Defendant's Responses and Objections to Plaintiff's Request for Admissions (“Motion to Review
RFAs”) [#72] (collectively, the “Motions”). Pursuant to the Order Referring Case dated
November 20, 2014 [#19] and the memorandum dated February 19, 2015 [#74], the Motions
were referred to this Magistrate Judge. The court has now reviewed the papers, the underlying
discovery, and the applicable case law, and has determined that oral argument would not

materially assist in the resolution of these motions. For the reasons set forth herein, the court
hereby GRANTS the Motion to Compel Documents; GRANTS IN PART and DENIES IN
PART the Motion to Compel Interrogatory Responses, and DENIES the Motion to Review
RFAs.
BACKGROUND
Plaintiff Adam Dmytryszyn (“Plaintiff” or “Mr. Dmytryszyn”) initiated this action
against Defendants Tom Clements, the former Executive Director of the Colorado Department of
Corrections; Lieutenant Bernadette Scott; Captain T. Scott; Lieutenant Maggelson; Major
Bilderava; Captain Bolt; Sergeant Stephen Ladd; and Superintendent James Falk on December
12, 2012, pursuant to 42 U.S.C. § 1983. Then on August 22, 2013, Plaintiff filed an Amended
Complaint adding Jerri Macintosh as a defendant. [#28]. All the named Defendants, through
joint counsel, then filed a Motion to Dismiss. [#40]. After an Order granting Motion to Dismiss,
the only surviving claim is one against Defendants Bernadette Scott, Lieutenant T. Scott,
Lieutenant Maggelson, Major Bilderava, Captain Bolt, and Superintendent James Falk
(collectively, the “Defendants”) alleging that the Defendants’ decision to censor a publicly
available report from the United States Department of Justice deprived him of his rights to
freedom of speech and to receive publications in violation of the First and Fourteenth
Amendments. [#57].
On August 21, 2014, the court entered a Scheduling Order in the case. [#62]. The
Scheduling Order set discovery limitations, including ten interrogatories per side; ten requests
for production per side; and ten requests for admissions per side, all including discrete subparts.

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[Id. at 1].

Subsequently, upon Plaintiff’s motion, the court allowed an additional five

interrogatories, requests for admissions, and requests for production. [#67].
I.

Plaintiff’s Motion to Compel Documents
Mr. Dmytryszyn filed his Motion to Compel Documents on February 17, 2015. [#70].

He seeks to compel Defendants to produce the publication, Eyewitness Evidence: A Guide for
Law Enforcement, the very publication that was withheld by Defendants that forms the basis of
his remaining cause of action. [Id. at 2]. Mr. Dmytryszyn argues that he “needs the publication
to prepare and present this case effectively. He does not know what the publication actually
contains, and he is proceeding on a good faith belief and speculation. The plaintiff needs to
review the publication to make a fair and accurate assessment of it and to fairly effectively
present his case.” [Id.] Alternatively, Plaintiff requested that Defendant permit inspection of the
publication under supervision in the prison’s law library. [Id.]
Defendants object to its production, arguing that “the propriety of the Defendants’ prior
censorship of this publication on the basis of safety and security is the central dispute to be
resolved in this case.” [#78 at 3]. Defendants further argued that a pro se prison inmate “should
not be permitted to use written discovery requests as a means to obtain a censored publication
where the proprietary of the very censorship of the publication is the ultimate issue for the Court
to determine in resolving the lawsuit.” [Id.] Defendants did not address Plaintiff’s alternative
suggestion that he be given access to the document through the prison law library. [Id.] Rather,
they asserted that “[t]he proper way to resolve the dispute regarding the censorship of the
publication in question is for the parties to litigate the matter through a dispositive motion and/or

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at trial, at which time the publication will likely be submitted to the Court in camera, along with
appropriate an [sic] affidavit(s) explaining the grounds for the censorship.” [Id.]
It appears that Defendants’ only objection was providing the publication to Mr.
Dmytrysyzn while he was incarcerated. Mr. Dmystryszyn is no longer incarcerated [#79] and it
is undisputed that the publication is freely available on the internet. Therefore, there is no reason
that Defendants cannot provide a copy of the publication to Mr. Dmytryszyn at his address of
record, as any concern regarding the effect upon the greater prison population is now moot.
II.

Plaintiff’s Motion to Compel Interrogatory Responses
In a separate motion, Plaintiff seeks to strike objections made by Defendants in response

to Interrogatory Nos. 3, 5, 7, 8, and 10. [#71]. As an initial matter, Plaintiff argues that he
submitted Interrogatories to all Defendants, but only one, Lieutenant Bernadette Scott,
responded. [Id. at ¶1]. Defendants argue that limiting the response to a single Defendant is
appropriate, because the court limited Plaintiff to serving fifteen interrogatories “per side.” [#76
at 3]. Defendants then stated, “Plaintiff did not indicate specifically to whom his Interrogatories
were directed. Because this case predominantly concerns the handling of an item of Plaintiff’s
mail, Plaintiff’s Interrogatories were directed to Defendant Lt. Bernadette Scott, who holds a
supervisory position over the mailroom, for a response.” [Id. at 3].
The court respectfully disagrees with Defendants that the Scheduling Order contemplates
that Plaintiff is limited to fifteen interrogatories split amongst all Defendants. Indeed, that would
mean that Plaintiff was originally allotted less than two interrogatories per individual Defendant,
and that Mr. Dmystryzyn was expected to propound identical interrogatories on each of the
individuals to obtain a full and complete answer.

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The court further rejects Defendants’ position that they may unilaterally target Mr.
Dmytryszyn’s interrogatories to Lieutenant Scott and ask no other Defendants to respond. As an
initial matter, Defendants have never distinguished between themselves. All of the papers filed
by Defendants have been filed collectively. For instance, the Answer makes no distinction
between the knowledge of the various individual Defendants. [#60]. Nor do Defendants’
objections to the Interrogatories at issue suggest that Defendants’ objections to the
Interrogatories were because Mr. Dmytryszyn propounded too many discovery requests based on
Defendants’ count. [#76]. Moreover, Defendants never explain how it would be overly
burdensome for all of the Defendants to be asked about their respective knowledge before a
response to the interrogatories were propounded. [Id.] Therefore, Defendants must supplement
their responses to Interrogatory Nos. 3, 5, 7, 8, and 10 to reflect the collective knowledge of all
Defendants. To the extent that the substance of the responses does not change, Defendants’
counsel is directed to certify, as an officer of the court, that she has asked all Defendants to
respond to the identified Interrogatories and the existing responses are complete and accurate.
Most of Plaintiff’s other complaints regarding Defendants’ responses to Interrogatory
Nos. 3, 5, 7, 8, and 10 should be remedied once the knowledge of all Defendants are reflected in
the supplemental responses. However, with respect to Interrogatory No. 7, Defendants’ response
is incomplete and evasive. Interrogatory No. 7 plainly inquires “State the name of the person
who is responsible for reviewing decisions to censor publications or deciding appeals.” [#71 at
2]. Defendants do not object, but do not state any name. [Id. at 3]. Defendants attempt to justify
this approach by arguing, “[i]n the manner that Plaintiff drafted Interrogatory No. 7, Plaintiff was
seeking general information as to who is responsible for reviewing decisions of the Reading

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Committee to censor publications. He was not seeking the identity of the person who conducted
a particular review of a particular publication on a particular occasion, but rather, who is
generally assigned this responsibility.” [#76 at 8]. The court respectfully disagrees that
Defendants’ interpretation of Interrogatory No. 7 is a fair reading of what Plaintiff asks. To the
extent that Major Tim Usry, who is identified by Defendants’ response to Interrogatory No. 8, is
also the individual who should be named in response to Interrogatory No. 7, Defendants should
supplement to so state. If there are additional individuals who were “responsible for reviewing
decisions to censor publications or deciding appeals” during the relevant time period, Defendants
should identify them by name in their supplemental interrogatory responses,
With respect to Interrogatory No. 10, Mr. Dmytrysyzn sought “the names of any persons
who contacted you to inquire about the facts of this case prior to July 25th, 2014, including your
defense counsel, Assistant Attorney General Nicole S. Gellar, or anyone else from the Colorado
Attorney General's office.” [#71 at 3]. Defendants objected, asserting the

attorney-client

privilege and work product doctrine. The attorney-client privilege generally only protects legal
communications between a client and her attorney, not the identity of individuals who
participated in such conversation. In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir.
1990). And the information sought by Mr. Dmytrysyzn is not the type that inherently reflects
privileged information. Id. Therefore, the court will compel Defendants to further supplement
their response to Interrogatory No. 7. To the extent the individual names responsive to
Interrogatory No. 10 are limited to those identified by Defendants in their Response [#76 at 10],
Defendants’ supplemental response should so state.

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III.

Plaintiff’s Motion for Review
Plaintiff also challenges the sufficiency of Defendants’ responses to his Requests for

Admissions. [#72]. Defendants’ Response is similar to the one filed in opposition to Plaintiff’s
Motion to Compel Interrogatories, and argues that their objections are valid and the responses
are sufficient. [#77].
Requests for Admission are governed by Rule 36 of the Federal Rules of Civil Procedure,
which provides that a “party may serve on any other party a written request to admit, for the
purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)
relating to facts, the application of law to fact, or opinions about either.” Fed. R. Civ. P.
36(a)(1). The Rule requests that each matter be separately stated. Fed. R. Civ. P. 36(a)(2). If the
matter is not admitted, the answer must specifically deny it or state in detail why the answering
party cannot truthfully admit or deny it. Fed. R.Civ. P. 36(a)(4).
Reviewing Defendants’ responses to Plaintiff’s Requests for Admissions against these
standards, the court finds that Defendants have properly responded to them. In fact, in some
instances, Defendants go beyond the requirements of Rule 36. For instance, in response to
Requests for Admission No. 4, Defendants not only deny, but explain the basis for the denial –
which is not required by the Rule.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED:
(1)

Plaintiff’s Motion to Compel Motion Production of Document [#70] is
GRANTED;

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(2)

Plaintiff’s Motion to Compel Defendants to Answer Plaintiff's Interrogatories and
Review the Objections Thereto [#71] is GRANTED IN PART AND DENIED IN
PART, and

(3)

Plaintiff’s Motion to Review Sufficiency of Defendant's Responses and
Objections to Plaintiff's Request for Admissions [#72] is DENIED; and

(4)

Defendants are directed to supplement their discovery responses consistent with
the direction in this Order no later than May 13, 2015.

DATED April 29, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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