Milledge v. Tucker et al

Filing 114

ORDER granting in part and denying in part 97 Plaintiff's Motion to Compel Discovery; denying as moot 98 Plaintiff's Motion to Compel Discovery; granting in part and denying in part as moot 99 Plaintiff's Motion to Compel Ans wers to Interrogatories; denying Plaintiff's request for imposition of sanctions; granting 100 Plaintiff's Motion for Leave to Serve Additional Interrogatories on Defendant Woodall; denying without prejudice 101 Plaintiff's Motion to appoint counsel; denying 102 Plaintiff's Motion for Leave to File a Reply; granting 108 Defendants' Motion for Extension of Time to File Summary Judgment; denying as moot 109 Plaintiff's Motion for an Order; granting 110 Pla intiff's Motion for an Order to the extent that Defendants' counsel must coordinate with prison personnel to arrange for up to 12 hours of callouts for Plaintiff to review discovery materials; see Order for details and deadlines. Signed by Judge Brian J. Davis on 10/3/2018. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
COREY MILLEDGE,
Plaintiff,
v.

Case No. 3:17-cv-483-J-39MCR

KENNETH S. TUCKER, et al.,
Defendants.
______________________________
ORDER
I. Background
Before the Court are the following motions: (1) Plaintiff’s Motion to Compel
Discovery (Doc. 97; First Discovery Motion); (2) Plaintiff’s Motion to Compel Discovery
(Doc. 98; Second Discovery Motion); (3) Plaintiff’s Motion to Compel Discovery and for
Sanctions (Doc. 99; Third Discovery Motion); (4) Plaintiff’s Motion for Leave to Serve
Additional Interrogatories (Doc. 100; Motion for Leave); (5) Plaintiff’s Motion to Appoint
Counsel (Doc. 101); (6) Plaintiff’s Motion for Leave to File a Reply (Doc. 102); (7)
Defendants’ Motion for Extension of Time to File Summary Judgment (Doc. 108;
Defendants’ Motion); (8) Plaintiff’s Motion for an Order (Doc. 109); and (9) Plaintiff’s
second Motion for an Order (Doc. 110). Defendants have responded to Plaintiff’s motions
except for his Motion to Appoint Counsel (Docs. 104, 105, 106, 107, 111, 112). Plaintiff
has not responded to Defendants’ Motion, though he filed a Notice before Defendants
filed their motion (Doc. 103) indicating that he would not agree to an extension of time if
Defendants were to request one.

In his Amended Complaint (Doc. 27), Plaintiff asserts three claims against ten
Defendants, whom he names in their individual capacities: (1) retaliation under the First
Amendment against Defendant Parrish; (2) deliberate indifference to a serious risk of
harm under the Eighth Amendment against Defendants Woodall, Tucker, and Perry; and
(3) excessive use of force or failure to intervene under the Eighth Amendment against
Defendants Box, Greene, Howell, Nieves, Polanco, Parrish, and Sodrel. Plaintiff’s claims
arise out of two beating incidents that allegedly occurred on June 22, 2012, involving
Defendants Box, Greene, Howell, Nieves, Polanco, Parrish, and Sodrel. The alleged
beatings caused injuries to Plaintiff’s eyes, right shoulder, and back.
The Court will address the substance of motions one through four (as numbered
above) and Plaintiff’s second Motion for an Order (Doc. 110). The remainder of the
motions will be addressed in the decretal. First, however, the Court will address the
parties’ inability to resolve the various discovery disputes without the need for Court
intervention. In their responses to each of Plaintiff’s discovery motions, Defendants assert
that Plaintiff did not file the respective motions in good faith because he filed his motions
only two days after he mailed Defendants’ counsel a letter disputing some of their
discovery responses.
While the Court recognizes that Plaintiff has not made a good-faith effort to resolve
the discovery disputes, Defendants’ responses to the various motions reflect that they
stand by their objections to Plaintiff’s discovery requests to the extent the discovery
dispute is not moot. Thus, directing the parties to confer in good faith likely would result
in simply delaying this Court’s review of the issues presently before it. In its desire not to
further delay this case and to consider dispositive motions with all relevant facts before it,
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the Court will address the substantive discovery issues. However, the Court cautions the
parties that they must comply with Rule 3.01(g), Local Rules of the United States District
Court for the Middle District of Florida, which requires the parties to confer in a “good faith
effort to resolve the issues raised by the motion.” Future motions that require but lack the
3.01(g) certification or demonstrate the parties’ failure to confer in good faith may be
denied.
II. First Discovery Motion
In his First Discovery Motion, Plaintiff requests an order directing Defendants to
produce documents in response to his Request for Production (RFP), Nos. 4, 5, 6, 7, 9,
13, 16, 17, and 18. Plaintiff supports the motion with a copy of the RFP he propounded
on Defendants (Doc. 97-1); the RFP response by Defendants (Doc. 97-2; RFP
Response); and Plaintiff’s response to Defendants’ RFP Response, which he mailed to
Defendants on July 30, 2018 (Doc. 97-3; Plaintiff Response), two days before he mailed
the First Discovery Motion. In response to the First Discovery Motion (Doc. 105; First
Response), Defendants argue their objections to the disputed RFPs were reasonable
because many of Plaintiff’s requests were overbroad, vague, not relevant, and/or
burdensome. See First Response at 4-7.
Upon review, the Court finds the First Discovery Motion is due to be granted in part
and denied in part. Plaintiff’s First Discovery Motion is due to be granted to the extent that
the Court overrules Defendants’ objections to Plaintiff’s RFPs Nos. 13, 17, and 18. In RFP
No. 13, Plaintiff seeks “[a]ll medical records and mental health records of Plaintiff from

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June 22, 2012 to the present.” See RFP Response at 5.1 Defendants objected to this RFP
on the basis that Plaintiff may obtain his own medical records through subpoena. See id.
In their response to Plaintiff’s First Discovery Motion, Defendants also note that Plaintiff
refused to sign a waiver for the release of his medical records (Doc. 105-1), which forced
Defendants to subpoena the records instead.2 See First Response at 5-6. Plaintiff denies
having been asked to sign a waiver for release of his medical records. See Plaintiff
Response at 9. The Court finds that Plaintiff’s request to review his medical records, which
Defendants recognize are relevant to the issues, is reasonable. Defendants must make
available for Plaintiff’s review and inspection records responsive to his RFP No. 13.
In RFP No. 17, Plaintiff seeks “[a]ll coaching files, discipline files, use of force files,
inquiries and complaint files and memorandum files of each named Defendant.” See RFP
Response at 6. Defendants objected to this request on the basis that Plaintiff’s request
was unclear, had no limit, and sought documents not relevant to the claims and that would
likely be inadmissible at trial. Id. In addition, Defendants objected because Plaintiff
suffered only minor injuries, and the burden to comply would outweigh any benefit to
Plaintiff, and the requested information could “potentially encompass protected attorneyclient privileged information and attorney work product.” Id.

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numbers reflect the pagination assigned by the Court’s CM/ECF docketing system,
which are found at the top of each page.
At the time of filing their response to Plaintiff’s First Discovery Motion, on August 17,
2018, Defendants had not yet received the medical records they requested through
subpoena. See First Response at 5-6. Plaintiff filed a Notice on September 28, 2018 (Doc.
113), stating that the Defendants received his medical and mental health records in
September.
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A party opposing discovery must do more than state a generic, boilerplate
objection. Rather, the party must make some showing that the stated objection is
appropriate. See Diehl v. Bank of Am. Corp., No. 3:09-cv-1220-J-25MCR, 2010 WL
3340565, at *3 n.4 (M.D. Fla. Aug. 23, 2010); see also Calderon v. Reederei Claus-Peter
Offen GmbH & Co., No. 07-61022-CIV, 2008 WL 4194810, at *2 (S.D. Fla. Sept. 11, 2008)
(“[A] party resisting discovery must make some showing as to how each discovery request
is not relevant and/or is overly broad or unduly burdensome.”). Defendants have made
no showing that the requested documents are privileged. Moreover, admissibility is not
the yardstick for discovery. Federal Rule of Civil Procedure 26(b)(1) permits parties to
obtain discovery relevant to the party’s claim or defense, regardless of whether the
evidence would be admissible at trial. See Fed. R. Civ. P. 26(b)(1).
It is conceivable that, if disciplinary files exist documenting instances of excessive
use of force or a failure to intervene against the Defendants involved in the alleged beating
incidents, they may be relevant to Plaintiff’s claims of deliberate indifference, failure to
intervene, and/or excessive use of force. However, the Court finds that RFP No. 17, while
relevant, is overbroad as stated. Thus, the Court limits the scope of the request such that
Defendants must produce disciplinary reports concerning allegations of excessive force
or failure to intervene involving Defendants Parrish, Box, Greene, Howell, Nieves,
Polanco, and Sodrel for the five-year period preceding the date of the alleged incidents.3

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To the extent the relevant documents contain private or privileged information,
Defendants may redact the documents only to the extent necessary to protect any such
information.
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In RFP No. 18, Plaintiff seeks “[a]ll grievances and grievance appeals initiated by
[Plaintiff] from March 28, 2011 to June 22, 2012 relat[ing] to the incident sued upon and
allegations alleged.” See RFP Response at 7. Defendants objected, stating that Plaintiff
“has access to obtaining his own grievances,” though they disclosed “all responsive
documentation related to the request . . . already in their possession.” See id. Plaintiff
asserts that the Department of Corrections (DOC) “does not allow inmates to review their
grievance files nor obtain copies.” See Plaintiff Response at 13. Thus, the Court finds
Plaintiff’s request reasonable and directs Defendants to disclose any documents
responsive to the request beyond those already made available to Plaintiff.
In all other respects, Plaintiff’s First Discovery Motion is due to be denied. The
Court sustains Defendants’ objections to RFP Nos. 4, 5, 6, 7, 13, and 16. With respect to
RFP No. 9, the Court finds Defendants’ stated objection is unpersuasive. In RFP No. 9,
Plaintiff requests “housing records sufficient to show the name of inmates who were
housed on the wing with Plaintiff on the date of the incident sued upon.” See RFP
Response at 5. Defendants objected, asserting that the documents requested are
protected from disclosure by the Health Insurance Portability and Accountability Act
(HIPAA). See id. HIPAA provides protection against the disclosure of protected health
information that is generated by a health care provider. Plaintiff is not requesting medical
records or the disclosure of protected health information. Rather, he is seeking the names
of potential witnesses to the beating incidents through disclosure of documents prepared
by non-health care providers. Plaintiff’s RFP No. 9, however, is overbroad as stated.
Plaintiff does not limit his request by identifying cell numbers nearby the cells in which his

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alleged beatings occurred. Thus, Plaintiff’s First Discovery Motion is due to be denied as
to this request as well.4
III. Second Discovery Motion
Plaintiff’s Second Discovery Motion also relates to Defendants’ response to his
RFP. Plaintiff seeks an order directing Defendants to produce “the surveillance camera’s
[sic] and the documents so that plaintiff can inspect and copy.” See Second Discovery
Motion at 1. Plaintiff provides a copy of Defendants’ response to his RFP, which certifies
the response was mailed to Plaintiff on July 20, 2018, see RFP Response at 7,5 which
was within the discovery deadline set by this Court, see Order (Doc. 96). However,
Plaintiff states that he sent a letter to Defendants’ counsel on July 2, 2018, requesting to
inspect relevant documents and view surveillance videos before the discovery period
ended. See Second Discovery Motion at 2. According to Plaintiff, Defendants’ counsel
did not respond to his letter and did not make the disclosed materials available to him
prior to the close of discovery. Id.
Plaintiff’s argument that he should have been permitted to inspect the disclosed
documents prior to the discovery deadline is misguided. Importantly, Defendants timely
responded to the RFP on July 20, 2018. See RFP Response at 7. In response to each of
the disputed RFPs, Nos. 3, 10, 11, 12, 14, and 19, Defendants stated, “Plaintiff will be
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To the extent Plaintiff is attempting to identify possible witnesses to either of the
incidents that occurred on June 22, 2012, which he may need to defend against a motion
for summary judgment, he has an opportunity to learn the names of potential witnesses
because this Court grants his Motion for Leave. See Section VI, this Order.
Plaintiff provided a copy of Defendants’ RFP Response as an exhibit in support of both
his Second Discovery Motion (Doc. 98-2) and his First Discovery Motion. For ease of
reference, the Court will continue to cite to the exhibit attached to Plaintiff’s First Discovery
Motion (Doc. 97-2). The documents are identical.
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provided with all available documentation related to th[e] request.” See id. Plaintiff, an
inmate of the Florida penal system, was not entitled to inspect the documents and videos
by the discovery deadline. Defendants’ counsel transmitted the relevant documents to
prison officials and requested that callouts be scheduled. According to the document
review log, which Plaintiff refused to sign (Doc. 104-1), prison officials provided Plaintiff
almost seven hours over two days, August 16th and 17th, to review the produced
documents, including video surveillance.6 Thus, Plaintiff’s Second Discovery Motion is
due to be denied as moot. To the extent Plaintiff did not receive sufficient time in which
to review the documents and video surveillance in this case, he does not assert such an
argument in the Second Discovery Motion. He does assert such an argument, however,
in his Motion for an Order (Doc. 110), which the Court will address next.
IV. Motion for an Order
In his Motion for an Order (Doc. 110; Motion), which Plaintiff supports with a sworn
affidavit (Doc. 110-1; Plaintiff Affidavit), he asserts that Defendants’ counsel informed
Plaintiff by phone on August 3, 2018, that he (counsel) would ask prison officials to
schedule separate callouts for Plaintiff’s review of documents disclosed in this matter and
those disclosed in a separate civil rights matter also pending before this Court. See Motion
at 2. However, Plaintiff states that he was not provided with separate callouts for the two
cases. Id.; Plaintiff Affidavit at 2. He also states that he was provided with twelve DVDs
Notably, on August 3, 2018, Defendants’ counsel spoke to Plaintiff about outstanding
discovery in this and another pending civil rights case, informing Plaintiff that he would be
sending the discovery documents to the prison. See Second Response at 2. According
to Defendants’ counsel, Plaintiff did not raise any objection or discovery-related issues
during that discussion. Id. Defendants’ counsel does not state whether he addressed with
Plaintiff his July 2, 2018 letter about viewing disclosed documents.
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but no documents. See Plaintiff Affidavit at 2. Thus, he refused to sign the document
review log. Plaintiff requests additional time to review all the disclosed documents,
including the surveillance videos, and to file a motion to compel should one be warranted
after his review of the materials. See Motion at 1.
In objection to Plaintiff’s Motion for an Order (Doc. 112), Defendants provide the
declarations of two FDC employees (Docs. 112-1; Young Dec., 112-2; Lemire Dec.), one
of whom confirms that Plaintiff’s callouts for both of his cases were combined. See Lemire
Dec. ¶ 3. Both declarants, however, contradict Plaintiff’s assertion that he was denied an
opportunity to review the documents. In fact, both declarants state that Plaintiff refused
to review the documents for either of his cases. See Young Dec. ¶ 4; Lemire Dec. ¶ 4.
They attach the document review logs for both days, which both lack Plaintiff’s signature.
On one of the document review logs (Doc. 112-1 at 3), Plaintiff handwrote the following:
“I need more time to review the surveillance camera’s [sic].”
Plaintiff’s Motion for an Order is due to be granted to the extent that Plaintiff should
be afforded an opportunity to review the evidence in this case separately from the
evidence in his other pending case.
V. Third Discovery Motion
In his Third Discovery Motion, Plaintiff seeks an order directing Defendants to
respond to interrogatories and imposing sanctions pursuant to Rule 37, Federal Rules of
Civil Procedure. Specifically, Plaintiff asserts that Defendants Parrish, Sodrel, and
Greene failed to timely respond to interrogatories directed to them. See Third Discovery
Motion at 2.

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In their response (Doc. 106; Third Response), Defendants assert that they timely
answered Plaintiff’s interrogatories by the discovery deadline. See Third Response at 2.
Defendants’ counsel states, however, that Defendant Greene’s answers were mistakenly
mailed to Plaintiff unsigned, though a signed copy was mailed to Plaintiff on July 27, 2018.
Id. Defendants’ counsel mailed responses on behalf of Defendants Sodrel and Parrish
with objections only, explaining in a letter to Plaintiff that these two Defendants were on
extended medical leave. Defendants’ counsel assured Plaintiff he would transmit
substantive answers once he was able to contact the two Defendants. See id.
Accordingly, Defendants’ counsel transmitted Defendant Sodrel’s signed interrogatory
answers on August 13, 2018. Defendants’ counsel noted that, as of August 17, 2018, he
still had not been able to contact Defendant Parrish who was schedule to be on medical
leave through September 5, 2018. See id.
The Court finds that Plaintiff’s Third Discovery Motion is due to be denied in part
as moot and granted in part. The motion is due to be denied as moot with respect to
Plaintiff’s request that Defendants Greene and Sodrel be ordered to answer Plaintiff’s
interrogatories directed to them. They have done so. The motion is due to be granted only
to the extent that Defendant Parrish’s signed answers to interrogatories should be served
on Plaintiff.
VI. Motion for Leave
In his Motion for Leave, Plaintiff seeks an order permitting him to exceed the
maximum number of interrogatories allowed under Rule 33, Federal Rules of Civil
Procedure. Specifically, Plaintiff seeks an order directing Defendant Woodall to answer
the interrogatories to which Woodall asserted an objection pursuant to Rule 33,
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maintaining that Plaintiff had exceeded the allowable number of interrogatories. See
Motion for Leave at 1-2. Plaintiff propounded twenty-three numbered interrogatories on
Woodall (Doc. 100-1; Interrogatories). Woodall timely answered the interrogatories (Doc.
100-2; Woodall Answers), though he identified nine discrete subparts to Plaintiff’s
interrogatory No. 8, resulting in thirty-three interrogatories according to Woodall’s
calculation. See Woodall Answers at 4. Woodall answered and/or objected to
interrogatories Nos. 1 through 16 (as numbered by Plaintiff), including the nine discrete
subparts for No. 8. He objected to interrogatories Nos. 17 through 23 (as numbered by
Plaintiff). See generally id.
In his Motion for Leave, Plaintiff does not object to Woodall’s break-down of
interrogatory No. 8 into discrete subparts. Interrogatory No. 8 reads as follows:
Please describe in detail the duty of Defendants Ernest
Sodrel, Heath Box, Victor Nieves, R.E. Woodall, Daniel
Howell, Kenny Polanco, Boyzie Perry, John Greene, Kenneth
Tucker, and Brandy Parrish at the time of the incident sued
upon. In describing the duties, state whether those duties
were the same in the year of 2012.
See Interrogatories at 4. Defendant Woodall answered interrogatory No. 8, though treated
Plaintiff’s inquiry as to each named Defendant as a separate, distinct interrogatory. While
interrogatory No. 8 arguably includes discrete subparts, Plaintiff does not appear to
propound this interrogatory with the intent to harass or annoy Defendants. And, Plaintiff,
an inmate proceeding pro se, may not have understood this interrogatory to contain
“discrete subparts” that would separately count toward the maximum number allowed
under Rule 33. Indeed, trained practitioners and judges recognize that identifying whether
an interrogatory has discrete subparts can be “a difficult task.” See, e.g., Commodores
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Entm't Corp. v. McClary, No. 614CV1335ORL37GJK, 2015 WL 12843874, at *2 (M.D.
Fla. Nov. 6, 2015) (“[R]esolving questions of whether a subpart to an interrogatory is
‘discrete’ under Rule 33 such that it should be counted separately can be a difficult task
and courts considering this question have applied various tests.”).
Moreover, the Advisory Committee Notes explaining the 1993 Amendment to Rule
33 provide that “a question asking about communications of a particular type should be
treated as a single interrogatory even though it requests that the time, place, persons
present, and contents be stated separately for each such communication.” Fed. R. Civ.
P. 33(a)(1), Advisory Committee Notes. Interrogatory No. 8 can be read to address one
subject or a common theme—Defendants’ job duties at the relevant time. However, even
if interrogatory No. 8 includes nine discrete sub-parts, the Court find that Plaintiff’s request
for leave to propound the additional, remaining interrogatories (Nos. 17 through 23) is
due to be granted. Woodall should answer interrogatories Nos. 17 through 23 in good
faith, asserting only appropriate objections.7
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Motion to Compel (Doc. 97) is GRANTED in part and DENIED in

part. The motion is granted to the extent that the Court overrules Defendants’ objections
to Plaintiff’s RFPs Nos. 13, 17, and 18. Defendants must respond to RFP Nos. 13, 17,

7

In answering interrogatories Nos. 21 and 22, which request in part the names of inmates
who witnessed or were in a position to witness the incidents, the Court reiterates that
such information does not appear subject to the protections of HIPAA.
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and 18, as instructed in this Order, by October 19, 2018. In all other respects, the motion
is DENIED.
2.

Plaintiff’s Motion to Compel (Doc. 98) is DENIED as moot.

3.

Plaintiff’s Motion for an Order (Doc. 110) is GRANTED to the extent that the

Defendants’ counsel shall coordinate with the appropriate prison personnel to arrange for
Plaintiff to have up to 12 hours of callouts so that he has a fair opportunity to inspect the
documents and surveillance videos associated with this case only. His callouts for this
case and his other pending case, Case No. 3:14-cv-248-J-32MCR, should not be
combined. In addition, Defendants should coordinate with the appropriate prison
personnel to ensure that Plaintiff has an opportunity to review the documents produced
pursuant to this Order and to review the documents and surveillance videos previously
made available to Plaintiff in response to the RFP. The 12 hours do not have to be
continuous but can be separated into appropriate time periods. The 12 hours must be
completed by November 2, 2018. By November 9, 2018, Defendants must file a notice
of compliance, advising that Plaintiff has completed the 12 hours of callouts.
To the extent Plaintiff suggests that surveillance videos exist that were not
disclosed to him previously, Plaintiff should attempt in good faith8 to confer with
Defendants’ counsel. The parties should also confer in good faith if additional discovery
disputes arise after Plaintiff has completed his callouts. If the parties cannot resolve any
outstanding discovery issues after conferring in good faith, Plaintiff may file a motion to

8

The Court reminds the parties that a failure to confer in good faith to resolve discovery
matters, future motions may be subject to denial or other appropriate sanctions.
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compel by November 16, 2018. If a motion to compel is filed, Defendants shall file a
response by November 30, 2018.
4.

Plaintiff’s Motion to Compel and for Sanctions (Doc. 99) is DENIED in part

as moot and GRANTED in part. The motion is GRANTED only to the extent that
Defendant Parrish’s signed answers to interrogatories should be served on Plaintiff by
October 19, 2018 if not already served. Plaintiff’s request for the imposition of sanctions
is DENIED.
5.

Plaintiff’s Motion for Leave to Serve Additional Interrogatories (Doc. 100) is

GRANTED. By October 19, 2018, Defendant Woodall must respond to interrogatories
Nos. 17 through 23, asserting only appropriate objections.
6.

Plaintiff’s Motion to Appoint Counsel (Doc. 101) is DENIED without

prejudice subject to the Court’s reconsideration if the case proceeds to settlement
conference or trial. A court may ask counsel to represent a person who cannot afford one.
See 28 U.S.C. § 1915(e)(1). But a plaintiff in a civil case does not have a constitutional
right to counsel, and courts have broad discretion in deciding whether to appoint counsel.
Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). A court should appoint counsel in
a civil case only if there are “exceptional circumstances.” Id. In determining whether to
appoint counsel, a court may consider the type and complexity of the case, whether the
plaintiff can adequately investigate and present his case, and whether the case proceeds
to trial. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (cited with approval in
Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1065 n.11 (11th Cir. 2013)). Plaintiff has not
presented exceptional circumstances that would warrant the appointment of counsel at
this time.
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7.

Plaintiff’s Motion for Leave to File a Reply (Doc. 102) is DENIED.

8.

Defendants’ Motion for Extension of Time to File Summary Judgment (Doc.

108) is GRANTED. Considering the rulings on Plaintiff’s various discovery motions, the
Court will extend the deadline for filing dispositive motions to December 17, 2018.
Responses to dispositive motions are due by January 17, 2019.
9.

Plaintiff’s Motion for an Order (Doc. 109) is DENIED as moot. See

Defendants’ Response (Doc. 111).
DONE AND ORDERED in Jacksonville, Florida, this 2nd day of October, 2018.

Jax-6
c:
Corey Milledge, #Q12023
Counsel of Record

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