Braham v. Perelmuter et al

Filing 95

ORDER. Plaintiff's 80 Motion to Compel Discovery is GRANTED. See attached Order for details. Signed by Judge Sarah A. L. Merriam on 4/1/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
MICHAEL BRAHAM
:
:
v.
:
:
BRIAN PERELMUTER, et al.
:
:
------------------------------x

Civil No. 3:15CV1094(JCH)

April 1, 2016

ORDER ON MOTION TO COMPEL DISCOVERY [DOC. #80]
Pending before the Court is a motion filed by pro se
plaintiff Michael Braham (“plaintiff”), seeking to compel
discovery from defendants, Brian Perelmuter, Johnny Wu,
Commissioner Scott Semple, and John Doe (hereinafter
collectively referred to as “defendants”). [Doc. #80]. For the
reasons articulated below, the Court GRANTS plaintiff’s Motion
to Compel Discovery.
DISCUSSION
Plaintiff has filed a motion seeking discovery from
defendants. [Doc. #80]. Specifically, plaintiff seeks a response
by defendant Wu to Interrogatory 2, and the production of items
responsive to Requests for Production 1, 2 and 3. [Doc. #80-1 at
1-3; #80-2 at 2-3]. Defendants have filed an Objection to the
pending motion. [Doc. #84]. Plaintiff has filed a reply to
defendants’ objections. [Doc. #90].

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I.

Untimeliness of Motion
The Court acknowledges that plaintiff’s motion to compel is

untimely. On September 24, 2015, defendants responded to
plaintiff’s requests for production dated September 4, 2015. See
Doc. #80-2 at 16-22. On September 25, 2015, defendants responded
to plaintiff’s interrogatories dated August 26, 2015. See Doc.
#80-2 at 9-11. The instant motion was filed on February 29,
2016. [Doc. #87].
Judge Hall’s Scheduling Order states, “Any motion for an
order compelling disclosure or discovery pursuant to Fed. R.
Civ. P. 37(a) must be filed within 30 days after the due date of
the response. Failure to file a timely motion in accordance with
this scheduling order constitutes a waiver of the right to file
a motion to compel.” [Doc. #54 at 2]. Thus, plaintiff’s motion
to compel was filed approximately four (4) months late. The
Court may extend this deadline only for good cause, which
“requires a particularized showing that, despite due diligence,
the party seeking the extension could not comply with this
order.” Id. at 2-3.
Plaintiff’s motion and reply both detail specific reasons
for the untimeliness of this motion, including numerous prison
transfers, plaintiff’s college course load, and his attention to
other pending deadlines for this case. [Doc. #80-1 at 2; Doc.
#90 at 3-4]. There is correspondence attached to both the
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plaintiff’s motion and to the defendants’ objections indicating
that good-faith communications took place between plaintiff and
counsel for defendants prior to requesting the Court’s
intervention. See Doc. #80-1 at 7-8; #84-2 at 2; #84-3 at 2-3.
Additionally, there is evidence that plaintiff made several
good-faith attempts to obtain a portion of the disputed
discovery on his own. See Doc. #80-1 at 9-10. The deadline for
discovery is May 30, 2016. [Doc. #54 at 1]. Considering these
factors, and in light of plaintiff’s pro se status, the Court
will extend the deadline for this motion to compel.
Notwithstanding the Court’s willingness to hear this motion,
plaintiff is reminded that he is bound to follow the Local and
Federal Rules of Civil Procedure, and must comply with the
applicable Scheduling Order. The Court does not anticipate
granting another late application for discovery in this case.
II.

Interrogatory 2
As to Defendant Wu, plaintiff seeks to compel a response to

Interrogatory 2, to which defendant Wu has submitted an answer
that plaintiff deems nonresponsive:
Interrogatory 2: On February 25, 2014, Peter O’Shea,
DDS submitted a Utilization Review Request requesting
that Michael Braham be approved for oral surgery to
extract mesioangular impacted teeth numbers 17 and 32.
That request was approved by the Utilization Review
Committee on March 10, 2014.
State the full legal name
Correctional managed Health
3

and job title of
Care employee who

the
was

responsible for scheduling Michael Braham for the
surgical procedure that was requested on February 25,
2014 and approved on March 10, 2014.
ANSWER: I do not know who handled scheduling for oral
surgery cases at that time frame provided.
[Doc. #80-2 at 10]. Plaintiff argues that defendant Wu is
required to make a reasonable inquiry regarding the information
sought, and thus he should be compelled to do so. Defendants
argue that plaintiff’s contention is speculative, as there is
“no evidence” that defendant Wu failed to make a reasonable
inquiry for this information. [Doc. #84 at 5]. Further,
defendants suggest that plaintiff instead pursue the information
through Mr. Richard Benoit, the Director of Dental Services, to
the extent the Court grants plaintiff’s motion to amend the
complaint.1 Id.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties
may
obtain
discovery
regarding
any
nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
The Court notes that Judge Hall denied that portion of
plaintiff’s Motion to Amend the Complaint [Doc. #62] that sought
to add Richard Benoit as a defendant. See Doc. #86 at 6-8.
Accordingly, this argument is no longer pertinent.
1

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Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009). Relevance “has been construed broadly to encompass any
matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978), citing Hickman v. Taylor, 329 U.S. 495, 501 (1947).
Rule 33 of the Federal Rules of Civil Procedure governs
interrogatories. Interrogatories may inquire into any
discoverable matter. Fed. R. Civ. P. 33(a)(2).
If a party is unable to reply because it lacks
knowledge or information, the party may not simply
refuse to answer. Rather, the party must respond in a
way
that
lets
the
requesting
party
know
the
information is unavailable. ... Simply stating that a
party does not know the answer to legitimate questions
is unacceptable; a party has a duty to inquire or find
the answer.
7 James Wm. Moore et al; Moore’s Federal Practice §33.102[3] (3d
ed. 2015); see also Zanowic v. Reno, No. 97CV5292(JGK)(HBP),
2000 WL 1376251, at *3 n.1 (S.D.N.Y. Sept. 25, 2000)(“Rule 33
does not require a party to provide information that is unknown
and unknowable to that party. In responding to interrogatories,
however, a party is under a duty to make a reasonable inquiry
concerning information sought in interrogatories, and a party’s

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failure to describe his efforts to obtain the information sought
by plaintiffs renders his responses insufficient.”).
Defendants do not raise an objection to Interrogatory #2,
nor do they argue that the information sought is irrelevant or
privileged. Instead, defendants contend that there is no
evidence that Mr. Wu failed to make a reasonable inquiry for the
information sought. Notably, defendants do not elaborate as to
whether the information is available to defendant Wu, or whether
he did make any attempt to ascertain this information. Defendant
Wu has a duty to furnish any and all information available to
him. See Moore et al., supra, §33.102[1]. “A party served with
interrogatories is obliged to respond ... not only by providing
the information it has, but also the information within its
control or otherwise obtainable by it.” In re Auction Houses
Antitrust Litig., 196 F.R.D. 444, 445 (S.D.N.Y. 2000).
Accordingly, the Court GRANTS plaintiff’s motion to compel with
respect to Interrogatory 2. Defendant Wu shall make a reasonable
inquiry to determine the identity and title of the individual
sought in Interrogatory 2. If he is unable provide a responsive
answer, he should detail his efforts to obtain said information.
III. Requests for Production 1 and 2
Plaintiff seeks: (1) “All dental records concerning Michael
Braham, Inmate No. 231451;” and (2) “All dental x-rays, films

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and images concerning Michael Braham, Inmate No. 231451.” [Doc.
#80-2 at 5]. Defendants object to both requests as follows:
Defendants object to Request for Production insofar as
it seeks to ascertain information, which is as readily
or equally available to plaintiff as it is to the
defendants.
[Doc. #80-2 at 16]

[sic]. Defendants’ letter to plaintiff,

dated October 19, 2015, encourages plaintiff to request to
review his entire dental file, including the x-rays, films and
images, “without delay.” [Doc. #80-1 at 7]. Plaintiff’s motion
to compel details his efforts and considerable difficulty in
obtaining a copy of his records. Id. at 4. It appears from
plaintiff’s motion that he was able to obtain a copy of his file
through the use of counsel, but he claims that the file was not
complete. Id. at 4. Defendants insist that the file in question
is equally accessible to plaintiff.2
The Court notes that this case involves dental treatment,
and the alleged lack thereof. Plaintiff is entitled to a
complete set of his own dental records. It is clear to the Court
that these records are not “equally accessible” to plaintiff if
he is only permitted one hour every six months to review his
file, as he contends and as defendants do not dispute. [Doc.

As to Request for Production 2, defendants represent that
copies of plaintiff’s x-rays and films, which are not included
in plaintiff’s file, will be provided to plaintiff with the
understanding that the original films can only be released to an
expert.
2

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#80-1 at 4; #84 at 3]. As such, the Court GRANTS plaintiff’s
motion to compel as to Request for Production 1. The Court also
GRANTS plaintiff’s motion to compel as Request for Production 2,
absent objection.
IV.

Request for Production 3
Plaintiff seeks the production of the UConn Correctional

Managed Health Care ‘Dental Manual’. [Doc. 80-1 at 3]. Following
his request for the entire manual, on October 12, 2015,
plaintiff sent correspondence to defendants indicating that he
consented to the production of only specific sections.3 Despite
the narrowed request, defendants objected, claiming that many
sections of the manual were irrelevant, and provided only seven
sections of the manual to plaintiff. Defendants do not claim
that the requested production is unduly burdensome, rather,
defendants’ objection is to relevance. As discussed above, the
Court is bound to interpret relevance broadly. This case
implicates a broad array of dental topics, including: Impacted
wisdom teeth; caries; infections; dry sockets; surgical
extraction; root canal; and fillings. Plaintiff has indicated
that he believes many sections of the manual are relevant. The
Court finds no reason why the requested sections of the Dental
Plaintiff’s letter, dated October 12, 2015, states, “Finally,
regarding request. no. 3, ‘Dental Manual,’ I request all dental
policies and appendices except policies no. 2.01, 2.02, 2.03,
17.00, 19.00, 19.01, 20.00, 26.00, 27.00, 28.00, 29.00 and
appendices A and D.” [Doc. #84-2 at 2].
3

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Manual should not be produced to plaintiff forthwith.
Accordingly, the Court hereby GRANTS plaintiff’s request for
production, in part. The defendants shall produce those sections
of the Dental Manual that plaintiff requested in his letter
dated October 12, 2015, to the extent they were not previously
provided.
This is not a Recommended Ruling.

This is an order

regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
Conn. L. Civ. R. 72.2.

As such, it is an order of the Court

unless reversed or modified by the District Judge upon motion
timely made.

SO ORDERED at New Haven, Connecticut this 1st day of April
2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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