Harnage v. Brennan et al

Filing 68

RULING. For the reasons set forth in the attached Ruling, the Court GRANTS, in part, and DENIES, in part, plaintiff's 51 MOTION to Compel Responses, MOTION for Sanctions for Failure to Comply with Discovery Re: Plaintiffs Second Request for P roduction Directed to Brennan and plaintiff's 53 MOTION to Compel Responses, MOTION for Sanctions for Failure to Comply with Discovery Re: Plaintiff's First Request for Production Directed to Janine Brennan, Dr. Wu, and Nurse Laura.T he parties are hereby ORDERED to file their joint trial memorandum, in accordance with Judge Thompson's April 9, 2018, order (Doc. # 43 ), on or before the close of business on November 2, 2018.The Court will accept no further discovery briefing. Discovery is closed. Signed by Judge Sarah A. L. Merriam on 8/30/2018. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
JAMES A. HARNAGE
:
:
v.
:
:
JANINE BRENNAN, et al.
:
:
------------------------------x

Civ. No. 3:16CV01659(AWT)

August 30, 2018

RULING ON PENDING MOTIONS
Self-represented plaintiff James A. Harnage (“plaintiff”)
has filed two motions to compel, seeking orders compelling
defendants Janine Brennan, Dr. Wu, and Nurse Laura (collectively
the “defendants”) to respond to plaintiff’s first and second
requests for production (collectively the “motions to compel”).
[Docs. #51, #53]. Plaintiff also requests that the Court impose
monetary sanctions as a result of defendants’ failure to respond
to his written discovery requests. See generally id. On May 24,
2018, Judge Alvin W. Thompson referred the motions to compel to
the undersigned. [Doc. #55]. On June 16, 2018, defendants filed
an objection to the motions to compel [Doc. #59], to which
plaintiff filed a “Rebuttal” on June 21, 2018 [Docs. #64, #65].
For the reasons set forth below, the Court GRANTS, in part, and
DENIES, in part, plaintiff’s motions to compel [Docs. #51, #53].

~1~

I.

Background
Plaintiff brings this action pursuant to 42 U.S.C. §1983.

See generally Doc. #1, Complaint. Plaintiff alleges that on or
about July 29, 2016, he was transferred from the MacDougall
Correctional Institute (“MacDougall”) to the Corrigan
Correctional Institute (“Corrigan”). Id. at ¶9. Plaintiff
alleges that “[a]t all times herein mentioned” he was housed at
Corrigan. See id. at ¶1.
Plaintiff alleges that during his incarceration he has been
prescribed a litany of medications to treat his many ailments.
See id. at ¶¶10-11. Plaintiff alleges that the denial of those
medications causes him “significant pain and needless
suffering.” Id. at ¶12. In particular, plaintiff alleges:
Dr. Wu, in an attempt to save money, has instituted a
policy instructing staff to minimize costs by any means
including the unreasonable and arbitrary elimination of
mid-day doses of necessary medications, reducing
plaintiff from 3 times per day down to 2 times per day
without any care or concern for the adverse effects on
inmates, like Harnage.
Id. at ¶17. Plaintiff further alleges that upon his arrival at
Corrigan, each of the defendants “in a conspiracy [illegible]
with the other, began and did, interfere with the refill and
renewal of many of the plaintiffs needed prescriptions.” Id. at
¶19 (sic). Judge Alvin W. Thompson has construed plaintiff’s
complaint as bringing an action for deliberate indifference to
medical needs in violation of the Eighth Amendment to the United
~2~

States Constitution. See Doc. #7, Initial Review Order.1
Plaintiff was transferred back to MacDougall in June 2017.2 The
allegations of plaintiff’s complaint relate solely to his
confinement at Corrigan, although plaintiff has filed another
lawsuit with similar allegations directed to the time he has
spent incarcerated at MacDougall. See Harnage v. Wu, No.
16CV1543(AWT) (D. Conn. Sept. 13, 2016) (hereinafter referred to
“Harnage I”).
II.

Motions to Compel [Docs. #51, #53]
Plaintiff has filed two motions to compel. The first seeks

to compel responses to plaintiff’s second request for production
directed to defendant Brennan, to which plaintiff has received
no response. See Doc. #51. The second seeks to compel responses
to plaintiff’s first request for production directed to
defendants Brennan, Dr. Wu, and Nurse Laura, to which plaintiff
has also received no response. See Doc. #53. The discovery
requests at issue were respectively served on December 22, 2017,

Plaintiff also appears to assert a retaliation claim against
defendants Brennan and Nurse Laura. The undersigned makes no
determination here as to whether that claim remains viable in
light of the Initial Review Order.
1

On June 19, 2017, plaintiff filed a “Notice Re: Change of
Address”, bearing the date of June 15, 2017. Doc. #24. That
document states that plaintiff’s address had changed to
MacDougall Correctional Institute. See id. Accordingly, the
Court presumes that plaintiff was transferred to MacDougall
sometime in June 2017.
2

~3~

and April 12, 2017. See Doc. #51-2 at 4; Doc. #53-2 at 9. At the
time the requests were served, discovery was scheduled to close
on February 9, 2018. See Doc. #40. Thus, the requests at issue
were timely served.
A. Legal Standard
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.
Fed. R. Civ. P. 26(b)(1). “[T]he burden of demonstrating
relevance is on the party seeking discovery[.]” Mason Tenders
Dist. Council of Greater New York v. Phase Constr. Servs., Inc.,
318 F.R.D. 28, 36 (S.D.N.Y. 2016). Once the party seeking
discovery has demonstrated relevance, the burden then shifts to
“[t]he party resisting discovery ... [to] show[] why discovery
should be denied.” Cole v. Towers Perrin Forster & Crosby, 256
F.R.D. 79, 80 (D. Conn. 2009) (alterations added).
B. Timeliness of Motions
In response to plaintiff’s motions, defendants contend that
each motion is untimely and that “alone constitutes sufficient
~4~

cause to deny them.” Doc. #59 at 1. Defendants also concede,
however, that they “have not responded to the individual
production requests in this case,” but have “provided plaintiff
with vast production [in plaintiff’s other cases].” Id. at 2.
Defendants are correct that plaintiff’s motions may be
deemed untimely as they were filed after the close of discovery.
“Though Rule 37 does not establish time limits for such a
motion, a party seeking to file a motion to compel after
discovery has closed must ... establish good cause.” Gucci Am.,
Inc. v. Guess?, Inc., 790 F. Supp. 2d 136, 139 (S.D.N.Y. 2011);
accord Casagrande v. Norm Bloom & Son, LLC, No. 3:11CV1918(CSH),
2014 WL 5817562, at *2 (D. Conn. Nov. 10, 2014). Plaintiff
responds that he “has not waived his right to discovery or the
enforcement motions therewith” and that he “has done the best he
can, within the confines of his confinement, to meet his
obligations to prosecute this action.” Doc. #64 at 1. Generally,
plaintiff fails to offer good cause for the Court to consider
his motions to compel at this late stage. Thus, the Court could
simply deny plaintiff’s motions as untimely. See, e.g.,
Richardson v. City of New York, 326 F. App’x 580, 582 (2d Cir.
2009) (“[T]he district court did not abuse its discretion in
denying Plaintiff’s motion to compel discovery, which
was filed over one month after the close of discovery, as
untimely.”); James v. United States, No. 99CV4238(BSJ)(HBP),
~5~

2003 WL 22149524, at *6 (S.D.N.Y. Sept. 17, 2003) (denying
motion to compel as untimely where it was filed six months after
the close of discovery and the movant proffered no justification
for the untimeliness). However, in recognition of plaintiff’s
self-represented status, the Court will review the substance of
plaintiff’s motions, particularly in light of the concession
that defendants have not responded at all to plaintiff’s
requests for production in this action. See Doc. #59 at 2.
C. Production in Plaintiff’s Other Federal Lawsuits
Defendants represent that in Harnage I, “Plaintiff has been
provided copies of his medical chart” and further assert that
plaintiff will be “provided with a variety of other records
regarding his medical care[,]” including “copies of electronic
medical records, records from UConn Health Center, and URC
records.” Doc. #59 at 2-3. Plaintiff concedes that his “medical
cases are inter-related[,]” but contends that he requires “a set
of copies of a majority of the documents for use as exhibits in
each separate action.” Doc. #64 at 2.
The Court will not require defendants to reproduce the
discovery already produced in Harnage I that is also responsive
to the requests for production now at issue. Requiring
defendants to reproduce thousands of pages of documents does not
comply with the spirit, or the letter, of the Federal Rules of
Civil Procedure. Indeed, as the very first Rule instructs:
~6~

“These rules ... should be construed, administered and employed
by the Court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.” Fed.
R. Civ. P. 1. Requiring defendants to reproduce such vast
quantities of documents does not promote the speedy or
inexpensive determination of this proceeding. Accordingly,
rather than reproduce any responsive documents, defendants may
respond to plaintiff’s written discovery requests by pointing
plaintiff to the Bates numbers of the prior production which is
responsive to the requests below. To the extent that the
timeframe here differs from the documents produced in Harnage I,
then defendants shall also produce any responsive documents for
that time period, as ordered below.
Plaintiff also contends that defendants should produce a
separate set of documents in this action because of his
anticipated need for trial exhibits and his limited ability to
make copies at his correctional facility. See Doc. #64 at 2.
Essentially, by demanding that defendants reproduce all
responsive documents, plaintiff asks defendants to bear the cost
of producing copies of the production. “Under federal law, the
party responsible for production generally bears the cost.
Reproduction is not necessarily required, however. A party need
only make requested documents available for inspection and
copying; it need not pay copying costs.” Clever View
~7~

Investments, Ltd. v. Oshatz, 233 F.R.D. 393, 394 (S.D.N.Y. 2006)
(internal quotation marks and citations omitted); See also 7
James Wm. Moore et al, Moore’s Federal Practice §34.14[5] (3d
ed. 2017) (“A party producing documents will ordinarily not be
put to the expense of making copies for the requesting party.
Rule 34(b) merely requires that the responding party make
documents available for inspection and copies.” (footnotes
omitted)). Accordingly, the Court will not require defendants to
bear the copy costs of plaintiff’s anticipated trial exhibits.3
D. Motion to Compel re: Plaintiff’s Second Request for
Production Directed to Brennan [Doc. #51]
Plaintiff has served twelve requests for production (“RFP”)
directed to defendant Brennan; she has provided no responses or
objections. See Doc. #51-2. After reviewing those requests and
the allegations of plaintiff’s complaint, as limited by the
Initial Review Order, see Docs. #1, #7, the Court hereby orders
as follows.
RFPs 1 and 2 seek the production of documents relating to
the identification of individuals responsible for “emptying and
retrieving the contents of the ‘medical mailboxes’ at Corrigan”
as well as the “processing” of the materials therein. See Doc.

Prior to trial, counsel for defendants and plaintiff shall
confer about their anticipated exhibits. Plaintiff may avoid the
need to produce copies of his exhibits to the extent any of his
exhibits overlap with those of defendants.
3

~8~

#51-2 at 2-3. Plaintiff has failed to establish how those
documents are relevant to his claims in this proceeding. Unlike
the allegations in Harnage I, here there are no allegations that
any of the defendants interfered with plaintiff’s medications by
“destroying and/or discarding refill requests[.]” See Harnage I,
No. 16CV1543(AWT), Doc. #69, Second Amended Complaint at ¶25 (D.
Conn. Dec. 22, 2017). Accordingly, the Court will not require
defendant Brennan to respond to RFPs 1 and 2.
RFP 3 seeks the production of “any and all documents
identifying the number of inmates, at Corrigan, between July 1,
2016, and August 1, 2017, who received medications three (3)
times daily.” Doc. #51-2 at 3. RFP 4 seeks the production of
“any and all documents which identify the number(s) of inmate(s)
who received prescription(s) dispensed at the 1pm to 2pm
medication line, at Corrigan, between July 1, 2016, and August
1, 2017.” Id. Plaintiff asserts that these requests “should be
allowed” because “[t]he information is relevant to the central
issues of this action and the investigation thereof.” Doc. #51
at 2. Plaintiff does not, however, articulate how the
information sought by these requests is reasonably calculated to
lead to the discovery of admissible evidence. The number of
inmates receiving medications at a particular time or at a
particular dosage is not relevant to the claims of the
complaint. Plaintiff does not allege that he was deprived of
~9~

medication dosages that were provided to other inmates. To the
contrary, the allegations of the complaint appear to challenge a
Department of Correction-wide policy regarding the dosage of
medication. See, e.g., Doc. #1, Complaint at ¶17 (“Defendant Wu,
in an attempt to save money, has instituted a policy instructing
staff to minimize costs by any means including the unreasonable
and arbitrary elimination of mid-day doses of necessary
medications, reducing plaintiff from 3 times per day down to 2
times per day without any care of concern for the adverse
affects on inmates, like Harnage.” (sic)). Accordingly,
plaintiff has not sustained his burden of establishing the
relevance of the information sought in RFPs 3 and 4. Therefore,
the Court will not require defendant Brennan to respond to those
requests.
RFPs 5, 6, 7, 8b, 9, 10, 11, and 12 each seek the
production of documents that identify the number of inmates who
were prescribed a specific medication at Corrigan between the
dates of July 1, 2016, and August 1, 2017. See Doc. #51-2 at 34. Plaintiff again asserts that these requests “should be
allowed” because “[t]he information is relevant to the central
issues of this action and the investigation thereof.” Doc. #51
at 3-4. Plaintiff does not, however, articulate how the
information sought in these requests is reasonably calculated to
lead to the discovery of admissible evidence. The number of
~ 10 ~

inmates receiving a specific medication is not relevant to the
claims of the complaint as plaintiff does not allege that he was
deprived certain medications that were provided to other
inmates. To the contrary, the allegations of the complaint
appear to challenge a Department of Correction-wide policy
regarding the dosage and nature of prescription medications.
See, e.g., Doc. #1, Complaint at ¶17, ¶36; see also Doc. #7 at 7
(“The plaintiff alleges that his medications were denied,
delayed or provided in amounts that contravene the recommended
dosage solely for budgetary reasons.”). Accordingly, plaintiff
has not sustained his burden of establishing the relevance of
the information sought in RFPs 5, 6, 7, 8b, 9, 10, 11, and 12.
Therefore, the Court will not require defendant Brennan to
respond to those requests.
RFP 8a requests defendant Brennan to: “Produce and identify
a complete list of and other such documents regarding ‘NonFormulary’ prescriptions prohibited by either CMHC or the URC.”
Doc. #51-2 at 4. “Rule 34 only requires a party to
produce documents that exist at the time of the request; a party
cannot be compelled to create a document for its production.”
Williams v. City of Hartford, No. 3:15CV00933(AWT)(SALM), 2016
WL 1732719, at *17 (D. Conn. May 2, 2016), adhered to in part on
reconsideration, No. 3:15CV00933(AWT), 2016 WL 3102001 (D. Conn.
June 2, 2016). Accordingly, to the extent plaintiff seeks an
~ 11 ~

order compelling defendant Brennan to create a list of
prohibited non-formulary prescriptions, that request is denied.
However, in Harnage I the Court ordered defendants to “produce,
for the time period of September 2013 through July 2016, all DOC
and CMHC policies regarding prescriptions, formularies, and the
determinations as to which medications, both prescription and
non-prescription, should be ordered.” See Harnage I, No.
16CV1543(AWT), slip op., Doc. #141 at 10 (D. Conn. May 7, 2018).
Because this matter involves the time period of July 2016
through June 15, 2017, the Court will require defendant Brennan
to produce those same documents but for the time period of
August 2016 through June 2017.4 Defendant Brennan shall produce
those documents on or before September 28, 2018.
Thus, for the reasons stated, plaintiff’s “Motion To Compel
Responses To And For Sanctions For Failure To Comply With
Discovery Re: Plaintiff’s Second Request For Production Directed
To Brennan” (sic) [Doc. #51] is GRANTED, in part, and DENIED, in
part. Plaintiff’s request for monetary sanctions is DENIED.

Plaintiff was housed at Corrigan from July 29, 2016, to at the
latest, June 15, 2017. The Court will limit the temporal scope
of plaintiff’s requests accordingly.
4

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E. Motion to Compel re: Plaintiff’s First Request for
Production Directed to Brennan, Dr. Wu and Nurse
Laura [Doc. #53]
Plaintiff has served sixteen RFPs directed to defendants
Brennan, Dr. Wu, and Nurse Laura; defendants have provided no
responses or objections. See Doc. #53-2. After reviewing those
requests and the allegations of plaintiff’s complaint, as
limited by the Initial Review Order, see Docs. #1, #7, the Court
hereby orders as follows.
RFPs 1 and 2 seek the production of plaintiff’s medical
records, including all “Electronically Stored and/or Generated
medical records and documents relating to the plaintiff[.]” Doc.
#53-2 at 6 (sic). In Harnage I, defense counsel here, who also
represents defendants in Harnage I, represented that plaintiff
had received a full copy of his medical records and that counsel
would request all of plaintiff’s electronically stored medical
records. See Harnage I, No. 16CV1543(AWT), slip op., Doc. #141
at 9-10 (D. Conn. May 7, 2018). In that matter the Court further
ordered defendants to “produce all URC requests and responses
that relate to plaintiff, including any emails related to those
requests and responses for the time period of September 2013
through July 2016.” Id. at 10. Similar production is warranted
here. Accordingly, in response to RFP 2, and in light of the
timeframe of this complaint’s allegations, defendants shall
produce all URC requests and responses that relate to plaintiff,
~ 13 ~

including any emails related to those requests and responses for
the time period of August 2016 through June 2017. The Court will
require no further response to RFPs 1 and 2 from defendants.
RFP 3 seeks: “All Utilization Review Committee (URC)
requests, denials, mandates, directives, operational standards,
policies, medication purchasing agreements, line-by-line
budgetary expenditures for the Correctional Managed Healthcare
(CMHC) from 2012-2017.” Doc. #53-2 at 2. RFP 3 is temporally
overbroad because the complaint’s allegations relate only to the
time period of late July 2016 through June of 2017. RFP 3 is
also substantively overbroad. Nevertheless, defendants shall
produce, for the time period of August 2016 through June 2017,
all DOC and CMHC policies relating to URC operating policies and
guidelines.5
RFP 4 seeks: “All URC hearing notes, logs and transcripts.”
Doc. #53-2 at 6. RFP 4 is overbroad and implicates a broad swath
of information that is not relevant to the claims in the
complaint. Additionally, the information sought could likely
implicate confidential third party medical information.
Accordingly, the Court will not require defendants to respond to
RFP 4.

The Court previously ordered the production of these documents
for the time period of September 2013 through July 2016 in
Harnage I, No. 16CV1543(AWT), Doc. #141, slip. op. at 10 (D.
Conn. May 7, 2018).
5

~ 14 ~

RFP 5 requests: “All purchase orders, purchasing
agreements, purchasing contracts and per unit cost analysis for:
[Flunisolide; Flonase; Gabapentin; Ibuprofen; Psyllium Fiber;
Calcium Carbonate; Clobatasol Propionate; and Temovate.]” Doc.
#53-2 at 6-7. RFP 5 is overbroad as it is not temporally limited
in scope. As to RFP 5, defendants shall produce, for the time
period of July 2016 through June 2017, any documents reflecting
the costs to CMHC or the DOC for the following medications:
Flunisolide; Flonase; Gabapentin; Ibuprofen; Psyllium Fiber;
Calcium Carbonate; Clobatasol Propionate; and Temovate.
RFP 6 requests defendants to: “Produce all manufacturers
recommended dosage, usage and side effects for each of the
medications described in #5 above.” Doc. #53-2 at 7. To the
extent such documents are in defendants’ custody and control,
defendants shall produce, for each of the medications identified
in RFP 5, the drug manufacturer’s recommendations in effect from
July 2016 to June 2017.
RFP 7 requests defendants to produce “any and all documents
relied upon in response to any of the interrogatory or
deposition responses to questions propounded by the plaintiff to
any of the defendants.” The Court will require only defendant
Dr. Wu to respond to this request as to his previous

~ 15 ~

interrogatory responses.6 See Ruran v. Beth El Temple of W.
Hartford, Inc., 226 F.R.D. 165, 168 (D. Conn. 2005)
(“Certainly, documents identified and relied upon in answering
the interrogatories are relevant and not so overly broad as to
preclude production.”); Charter Practices Int’l, LLC v. Robb,
No. 3:12CV1768(RNC)(DFM), 2014 WL 273855, at *4 (D. Conn. Jan.
23, 2014) (“Request for production 18 seeks documents the
defendant relied on in responding to the interrogatories. The
defendant objects on the grounds that the request is overbroad
and unduly burdensome. The objections are not well-founded and
are overruled. This is an unexceptional discovery request.”).
RFP 8 seeks the production of “any and all documents and
tangible items identified in any of the responses to
interrogatory and deposition questions propounded to either of
the defendants.” Doc. #53-2 at 7. The Court will likewise
require only Dr. Wu to respond to this request as to his
previous interrogatory responses. See Ruran, 226 F.R.D. at 168.
RFP 9 requests defendants to:
Produce any and all Memorandum, Notices, orders or
postings issued by CMHC, URC, Dr. Wu or any other agent
of either, acting in the interests of either or under
the orders thereof; during the period beginning August,
2012 through the date of any responses hereto, to any
The record before the Court suggests that only Dr. Wu has
responded to interrogatories issued by plaintiff. See Docs. #44,
#50, #57, #67. There is nothing to suggest that plaintiff has
propounded either written or oral deposition questions to any
defendant. Discovery is closed.
6

~ 16 ~

medical staff at either the MacDougall Correctional
Institute (MacDougall) and/or Corrigan Correctional
Institute
(Corrigan);
regarding
the
issuance,
prescription or treatment of inmates, the discontinuance
of any usage of any medications and the discontinuance
of the distribution of medications three (3) times per
day, to only twice per day.
Doc. #53-2 at 7. RFP 9 is overbroad and seeks information that
is not relevant to the claims of this lawsuit. First, the
allegations of plaintiff’s complaint relate only to his time
while incarcerated at Corrigan, not MacDougall. See generally
Doc. #1, Complaint. Second, the time period implicated by the
allegations of plaintiff’s complaint is July 2016 to June 2017.
See generally id. The Court has already ordered defendant
Brennan to produce for the time period of August 2016 through
June 2017, all DOC and CMHC policies regarding prescriptions,
formularies, and the determinations as to which medications,
both prescription and non-prescription, should be ordered. See
Section II.D., supra. Defendants shall produce for the time
period of July 2016 through June 2017, all DOC and CMHC policies
regarding the distribution of prescription medications.
RFP 10 requests defendants to: “Produce any and all copies
of any releases of information from the medical records of James
A. Harnage from August 2012 through the date of responses
hereto, to any and all third parties.” Doc. #53-2 at 8. The
Court will not require defendants to respond to this request as
plaintiff has not established how it is relevant to his claims.
~ 17 ~

Additionally, this request appears duplicative of other
requests, as any medical releases should be contained in
plaintiff’s medical records.
RFP 11 seeks: “The most recent identification photographs
taken by either CMHC and/or Department of Correction, of each
staff member at MacDougall and Corrigan from August, 2012
through the date of response hereto.” Doc. #53-2 at 8. RFP 11 is
overbroad and seeks information that is not relevant to the
claims set forth in the complaint. Presumably, by requesting
this information plaintiff seeks to identify the Doe defendants
named in the complaint. The Initial Review Order issued on
October 18, 2016, noted: “The plaintiff is directed to obtain
these names [of the Doe defendants] through discovery and file
an amended complaint alleging how each defendants was
deliberately indifferent to the plaintiff’s medical needs[.]”
Doc. #7 at 9. Plaintiff served his discovery requests seeking
this information in April of 2017, and “re-mailed” those
requests to defendants in December 2017. Notably, plaintiff did
not move to compel responses to those requests until May of
2018. The Court will not require defendants to respond to RFP 11
as the identification of the Doe defendants would be futile
given that it is well past the time period allowed to serve
additional defendants. See Fed. R. Civ. P. 4(m); Romagnano v.
Town of Colchester, 354 F. Supp. 2d 129, 133–34 (D. Conn. 2004)
~ 18 ~

(dismissing Doe defendants where plaintiff failed to ascertain
their identity and did not serve them within the time
requirements of Rule 4(m)); Mosley v. Woodly, No. 11CV1490(DNH),
2013 WL 5347272, at *3 (N.D.N.Y. Sept. 23, 2013 (dismissing Doe
defendant because plaintiff had failed to ascertain his identity
and serve him with the time period allowed under the Federal
Rules of Civil Procedure).7
RFP 12 seeks: “Any and all statements of witnesses to any
event identified in the complaint or of any defense being
offered to the complaint herein.” Doc. #53-2 at 8. RFP 12 is
overbroad as framed. Instead, defendants shall produce, if in
their custody or control, any “witness statements” regarding the
events alleged in paragraphs 24, 30, 42, 50-51, 53-54, and 58 of
the complaint, or regarding any defense to the allegations of
plaintiff’s complaint.
RFP 13 seeks: “Any and all police records, police reports,
Critical Incident Reports (CIR), case incident reports, internal
affairs records, Detective Bureau records, concerning any

This case has been pending for almost two years. Discovery has
closed and this matter is, for all intents and purposes, trial
ready. Adding up to five additional defendants at this late
stage would not only prejudice defendants, but could severely
delay the resolution of this matter. Even if plaintiff was able
to identify the Doe defendants by way of their staff
photographs, the Court is not optimistic that the Court would
permit plaintiff to amend his complaint at this late stage.
7

~ 19 ~

defendants, any anticipated witnesses proffered by defendants or
the subject matter of this lawsuit.” RFP 13 is overbroad and
seeks irrelevant information. Defendants shall produce
plaintiff’s entire DOC file for the year 2017, to the extent
that document is in defendants’ custody and control. The Court
will permit redactions to that document for legitimate safety
and security concerns.8
RFPs 14 and 15, seek, respectively:
14. Any and all police records or Department of
Correction records concerning any internal disciplinary
procedures, regardless of the outcome, to which any of
the defendants have been subjected while employed by
Correctional
Managed
Healthcare,
Department
of
Correction or University of Connecticut Medical Center,
to include any records, without limitations, of either,
relating thereto.
15. Any and all records, reports, letters, memoranda,
exhibits, photographs, etc..., concerning any internal
investigation by the Police, Department of Correction,
CMHC or University of Connecticut Medical Center, of the
subject matter of this lawsuit.
Doc. #53-2 at 8. RFPs 14 and 15 are overbroad as framed. RFP 15
also potentially implicates privileged attorney-client or
protected work product documents. The Court declines to reframe
these requests for plaintiff. Accordingly, the Court will not
require defendants to respond to RFPs 14 and 15.

The Court previously ordered the production of plaintiff’s
entire DOC file for the years 2012 through 2016 in Harnage v.
Pillai, No. 17CV355(AWT), slip op., Doc. #39 at 12 (D. Conn.
June 1, 2018). Thus, the Court finds it appropriate to limit the
production in this instance to plaintiff’s DOC file for 2017.
8

~ 20 ~

RFP 16 requests defendants to produce “[a]ny and all
records relating to employee bonuses, incentives, pharmaceutical
rebates, or other such financial statements and disclosures
resulting from the preferred use or prescription of drug
manufacturers recommended medications or CMHC usage and
incentive programs.” Doc. #53-2 at 16. RFP 16 is overbroad. It
is also not clear in light of the complaint’s allegations how
this request is relevant to plaintiff’s claims or proportional
to the needs of the case. Indeed, plaintiff alleges that the DOC
discontinued or limited the dosage of certain medications as a
cost-saving measure. See generally Doc. #1, Complaint at ¶¶17,
36-37. Plaintiff does not allege that any defendant received a
kickback or any other incentive for prescribing certain
medications.9 Accordingly, the Court will not require defendants
to respond to RFP 16.
Thus, for the reasons stated, the Court GRANTS, in part,
and DENIES, in part, plaintiff’s “Motion To Compel Responses To
And For Sanctions for Failure To Comply With Discovery Re:
Plaintiff’s First Request Tor Production Directed To Janine
Brennan, Dr. Wu, and Nurse Laura” (sic) [Doc. #53]. Defendants

Plaintiff “believes and thereby alleges the defendants actions
are designed to save money, for personal monetary gains[.]” Doc.
#1, Complaint at ¶37 (sic). That one vague allegation is not
enough to compel the production of the type of discovery
requested in RFP 16.
9

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shall respond to plaintiff’s RFPs, as limited above, on or
before September 28, 2018. Plaintiff’s request for monetary
sanctions is DENIED.
III. Joint Trial Memorandum
Finally, on April 9, 2018, Judge Thompson issued a Trial
Memorandum Order, which required the parties to file their joint
trial memorandum by May 9, 2018. [Doc. #43] To date, no such
trial memorandum has been filed. Accordingly, the parties are
hereby ORDERED to file their joint trial memorandum, in
compliance with Judge Thompson’s April 9, 2018, order, on or
before the close of business on November 2, 2018.
The Court will accept no further discovery briefing.
Discovery is closed.
IV.

Conclusion
For the reasons stated above, the Court GRANTS, in part,

and DENIES, in part, plaintiff’s motions to compel [Docs. #51,
#53].
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 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.

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SO ORDERED at New Haven, Connecticut, this 30th day of
August, 2018.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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