Nash v. Connections CPS Inc. et al

Filing 272

MEMORANDUM - Signed by Judge Gregory M. Sleet on 7/16/18. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANTHONY A. NASH,

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) Civ. Action No. 16-896-GMS
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Plaintiff,

v.
CONNECTIONS CSP, INC., et al.,
Defendants.

MEMORANDUM
The plaintiff, Anthony A. Nash ("Nash"), an inmate at the Howard R. Young
Correctional Institution, Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983.
(D .I. 3.) Nash appears pro se and has paid the filing fee. The operative fifth amended
complaint is found at D.I. 83. Presently before the court are several motions filed by the parties.
(D.I. 229,230,234,238,241,253, 261.)

I.

MOTION FOR PROTECTIVE ORDER
The defendant Jason Justison, DMD ("Dr. Justison") seeks a protective order pursuant to

Fed. R. Civ. P. 26( c) to protect him from answering discovery and discovery motions filed by
Nash beyond the January 22, 2018 discovery deadline. (D.I. 229.) The State defendants Dr.
Marc Richman ("Dr. Richman") and C/O Elliott Clark ("Clark") (together "State defendants")
and the other medical defendants Connections Community Support Programs, Inc. ("CCSP"),
Taurance Bishop, D.D.S. ("Dr. Bishop"), Mikelle Phillips, M.D. ("Dr. Phillips"), Mitchell A.
White, P.A. ("White"), Christine Claudio ("Claudio"), Karen Lewis ("Lewis"), Tracey Crews
("Crews"), and Mary Helen Stewart ("Stewart") (the other medical defendants along with Dr.
Justison (the "medical defendants")) move to join Dr. Justison's motion. (D.I. 230, 234).
1

The court entered a scheduling and discovery order on October 23, 2017, that provided
for all discovery to be initiated so that it would be completed on or before January 22, 2018, and
for the service and filing of dispositive motions on or before March 22, 2018. (D.I. 143.) The
discovery deadline has not been extended, and dispositive motions have been filed. On April 4,
2018, two months after the expiration of the discovery deadline, Nash propounded a third request
for admissions directed to the defendants. (D.I. 222.) In his opposition, Nash argues the
defendants need to provide full discovery (D.I. 239), and in his reply he argues that a request for
admission under Fed. R. Civ. P. 36 is not a discovery device, but is an "issue narrowing
procedure" (D.I. 235). Nash also argues that the defendants have not demonstrated any reasons
to warrant a protective order.
Under Rule 26(c), "[t]he court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ.
P. 26(c)(l). Included in the protections contemplated by Rule 26(c) is a protective order that
forbids disclosure or discovery. Fed. R. Civ. P. 26(c)(l)(A). This court's practice includes
requests for admissions as a means of discovery for purposes of the discovery deadline.
Contrary to Nash's position, "it is abundantly clear that 'requests for admission' is a method of
discovery under Federal law." Mine Safety Appliances Co. v. North River Ins. Co., 2012 WL
12930389, at *2 (W.D. Pa. Sept. 2, 2012); see also e.g., Gray Holdco, Inc. v. Cassady, 654 F.3d
444, 460 (3d Cir. 2011) (discovery was quite extensive including 200 separate interrogatories
and requests for admission); Friedman v Live Nation Merch., Inc., 833 F.3d 1180, 1185 (9 th Cir.
2016) (plaintiff attempted to "sidestep" discovery with regard to the request for admissions
dispute); Millbrookv. United States, 564 F. App'x 855,858 (7 th Cir. 2014) (plaintiff adequately
engaged in discovery by preparing interrogatories and requests for admissions); Calico Brand,
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Inc. v. Ameritek Imports, Inc., 527 F. App'x 987, 992 (Fed. Cir. 2013) (during discovery plaintiff
made concessions in response to requests for admission); Oklahoma ex rel. Doak v. Acrisure

Bus. Outsourcing Services, LLC, 529 F. App'x 886, 892 (10 th Cir. 2013) (lawyers never
propounded a request for admission through the discovery cutoff).
As noted in prior orders, the discovery deadline has passed and it has not been extended.
Nash has served numerous discovery requests upon the defendants. Requiring the defendants to
respond to discovery served upon them after the expiration of the discovery deadline not only
places an undue burden upon them, but is also in derogation of this court's October 23, 2017
Order. (See D.I. 143.) Therefore, the court will grant the defendants' motions. (D.I. 229,230,
234.)

II.

MOTION FOR RECONSIDERATION
On April 30, 2018, the court denied Nash's motion for injunctive relief. (See D.I. 233.)

In the motion, Nash asked the court to order his removal from the dormitory setting of the Key
program and to restore his work status so that he could continue to earn good time credits. 1
(D.I. 217.) Nash seeks reconsideration on the grounds that his reply (D.I. 236), dated April 27,
2018, and received by the court on May 2, 2018, was not considered. (D.I. 238.)
The purpose of a motion for reconsideration is to "correct manifest errors of law or fact
or to present newly discovered evidence." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "A proper Rule 59(e) motion ... must rely on one
of three grounds: (1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct a clear error oflaw or fact or to prevent manifest injustice."

1

The court notes that Nash seeks relief for claims in the motion for injunctive relief that
are separate and distinct from the claims raised in the fifth amended complaint.
3

Lazaridis v. Wehmer, 591 F.3d 666,669 (3d Cir. 2010) (citingN River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is not
properly grounded on a request that a court rethink a decision already made. See Glendon
Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993). Motions for
reargument or reconsideration may not be used "as a means to argue new facts or issues that
inexcusably were not presented to the court in the matter previously decided." Brambles USA,
Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990). Reargument, however, maybe
appropriate where "the Court has patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the court by the parties, or has made an error not of reasoning
but of apprehension." Brambles USA, 735 F. Supp. at 1241 (D. Del. 1990) (citations omitted);
See also D. Del. LR 7.1.5.
The court has reviewed Nash's reply (D.I. 236), and once again reviewed his motion for
injunctive relief and the defendants' opposition. Nash's motion for reconsideration fails on the
merits because he has not set forth any intervening changes in the controlling law or clear errors
of law or fact made in the order denying his motion for injunctive relief. See Max's Seafood
Cafe, 176 F.3d at 677. In addition, the inmate statement attached to the reply does not provide
support to warrant the injunctive relief sought by Nash. Therefore, the court will deny the
motion for reconsideration. (D.I. 238.)

III.

MOTION FOR COSTS
Nash moves for an order for an award of fees and costs in connection with service of

process on the grounds that the medical defendants failed to waive service of summons as set
forth in Fed. R. Civ. P. (4). (D.I. 241.) Nash did not proceed informa pauperis until June 27,
2017. (D.I. 116.) He states that he remitted $662.35 in service fees to the United States
4

Marshals Service to effect service. Nash was required to seek personal service when the
medical defendants did not waive service, and he was ordered to remit monies to effect service,
which he did in the amount of $590.35. (See D.I. 53, 80, 85.)
The court will hold a ruling on the motion in abeyance pending the medical defendants'
response to Nash's motion. Service fees may be imposed should the medical defendants fail to
respond to the motion. See Fed. R. Civ. P. 4(d)(2).

IV.

MOTION FOR AN EXTENSION OF TIME
Nash seeks an extension of time to file a response to the defendants' motion for summary

judgment. (D.I. 253.) The court will grant the motion and will consider Nash's response, filed
June 7, 2018 (D.I. 263), as timely filed.

V.

MOTION FOR SANCTIONS
Nash seeks sanctions against the medical defendants for failure to comply with the

court's April 30, 2018 order to produce all discovery withheld on the basis of peer-review
privilege. (D.I. 261.) The medical defendants respond they complied with the order, and
searched their files for any peer-review materials responsive to Nash's requests, but found none.
(D.I. 264.) The medical defendants provided this information to Nash in their supplemental
discovery responses. (See D.I. 252.)
The medical defendants cannot produce what they do not have. Sanctions are not
warranted. Accordingly, the court will deny the motion. (D.I. 261.)

VI.

CONCLUSION
For the above reasons, the court will: (1) grant the defendants' motions for a protective

order (D.I. 229,230,234); (2) deny Nash's motion for reconsideration (D.I. 238); (3) hold in
abeyance a ruling on Nash's motion for costs and order the medical defendants to file a response
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(D.I. 241; (4) grant Nash's motion for an extension of time; and (5) deny Nash's motion for
sanctions (D.I. 261).
An appropriate order will be entered.

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