White v. DeLaoja et al

Filing 153

ORDER granting in part and denying in part 137 Defendant's Renewed Motion to Compel Interrogatory Responses. Signed by Magistrate Judge Jonathan Goodman on 11/22/2011. (dkc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 07-23381-CIV-GOLD/GOODMAN
STEPHEN L. WHITE,
Plaintiff,
v.
DET. DE LA OSA,
Defendant.
_______________________________________
ORDER ON DEFENDANT DE LA OSA’S
RENEWED MOTION TO COMPEL INTERROGATORY RESPONSES
This cause is before me on Defendant Detective Rolando De La Osa’s Renewed Motion
to Compel Complete Responses to Defendant’s Interrogatories. [ECF No. 137]. Plaintiff did not
file a response and the time for doing so has now expired. For the reasons discussed below,
Defendant’s motion to compel is GRANTED IN PART and DENIED IN PART. Plaintiff
Stephen L. White shall have twenty days to serve a second set of supplemental interrogatory
responses on Defendant as detailed below, but Defendant’s request for attorney’s fees and other
sanctions is DENIED.
I.

Background and Introduction

This is an action for false arrest and malicious prosecution brought pursuant to 42 U.S.C.
§ 1983 by Plaintiff against Defendant, a Miami-Dade County Police Department detective.
[ECF No. 91].

Defendant previously moved to compel better responses to the same

interrogatories and the Court granted that motion. [ECF Nos. 107; 109]. The Court then
extended the Plaintiff’s time to serve supplemental responses until September 22, 2011. [ECF

Case No. 07-23381-CIV-GOLD/GOODMAN
No. 117]. 1 Plaintiff subsequently served timely supplemental responses but Defendant contends
that the supplemental responses to interrogatory numbers 1, 5, 8, 11, 12, 13, and 21 are still
incomplete and inadequate
To a great extent, the Undersigned agrees that Plaintiff’s supplemental responses are
insufficient and that Defendant is entitled to better answers. Plaintiff has had more than ample
opportunity to fulfill his discovery obligations.

The Court understands that Plaintiff is

proceeding pro se – but the Court has already taken his status into consideration on earlier
discovery motions filed against him. The Court is concerned that Plaintiff either does not
appreciate his obligation to provide complete responses to relevant discovery requests or has not
yet adequately explained his inability to comply (assuming that this explanation accounts for
some of the deficiencies).
As noted below, the Court is providing Plaintiff with additional leeway to fully comply
with his discovery obligations, but the Court’s willingness to continue its flexible approach is
exhausted and Plaintiff is on notice that his discovery shortcomings will soon generate
significant and adverse consequences if he does not fully and timely comply with this latest order
compelling discovery responses from him.
Plaintiff shall therefore have twenty days from today’s date to serve a second set of
supplemental responses on Defendant (as detailed further below on an interrogatory-byinterrogatory basis).

1

In his motion, Defendant states that “For a second time, plaintiff flouted this Court’s
order, failing to respond by the August 11th deadline.” [ECF No. 137, p. 2]. August 11, 2011
was the deadline originally given in the Order on Defendant De La Osa’s Motions to Compel,
but this deadline was extended to September 22, 2011 in my Preliminary Order on Defendant’s
Motion to Compel Responses to Requests for Production and Plaintiff’s Failure to Comply with
Prior Court Orders. [ECF Nos. 109; 117]. In a later order, I discussed the confusion over
whether Plaintiff served a timely response and concluded that he did. [ECF No. 127, pp. 2-4].
2

Case No. 07-23381-CIV-GOLD/GOODMAN
Although I am ordering a second supplemental response, the Undersigned is concerned
that Plaintiff may simply not know all of the requested information or may be unable to access it.
If that is the case, then Plaintiff should clearly state in his second supplemental response that he
either does not know or cannot obtain the requested information and also specifically detail
the efforts he made to obtain the requested information.
Plaintiff is cautioned, however, that if he does not provide the information as ordered
below (or does not provide a legitimate reason excusing for his failure to provide this
information), then, should this case proceed toward trial, the Undersigned will recommend that
the District Court preclude Plaintiff from using that information in any form on summary
judgment or during the trial if Plaintiff could have, but did not, include the information in his
second supplemental responses.
II.

Analysis
a. Interrogatory Number 1

This interrogatory requests Plaintiff to:
Provide the name, address, telephone number, place of
employment and job title of any person who has, claims to have, or
whom you believe may have, knowledge or information pertaining
to any fact alleged in the pleadings filed in this action, or any fact
underlying the subject matter of this action. For each person, state
the specific nature and substance of the knowledge or information
the person may have.
[ECF No. 137, p. 2]. In his original response dated June 9, 2011, Plaintiff provided several
names, addresses, and other pieces of witness-identifying information, as well as descriptions of
what these witnesses knew. [ECF No. 107-2, pp. 5-7]. But he added that “For other ‘names,
addresses, (etc) . . . whom . . . may have knowledge or information pertaining to any fact alleged

3

Case No. 07-23381-CIV-GOLD/GOODMAN
in the pleadings . . .’ See State v. White, No. 04-5266 (State’s Discovery),” and he then simply
noted those records are not available to him. [Id. at 6-7 (ellipsis in original)].
Defendant now complains that the supplemental response to this interrogatory is
insufficient because Plaintiff “provides only the names and occupations of nineteen of the
witnesses he lists.” [ECF No. 137, p. 3]. Defendant also notes that Plaintiff does not describe
the information these individuals possess.
Defendant’s motion is granted as to interrogatory number 1. The Undersigned agrees that
Plaintiff’s supplemental response is insufficient as to these nineteen witnesses. Plaintiff is
required to provide at least some description of the substance of these witnesses’ knowledge or
information. Therefore, Plaintiff must serve a second supplemental response, containing the
specific information requested in Defendant’s first interrogatory, within 20 days of today’s date.
As noted above, if Plaintiff does not know the requested information then Plaintiff shall clearly
and simply state that he does not know.
b. Interrogatory Number 5
This interrogatory requests Plaintiff to:
Identify each and every judicial proceeding with which you have
been involved, including both civil and criminal actions, and for
each, identify the style; your status as plaintiff, defendant, or
witness; the case number; jurisdiction; a general description of the
subject matter of the action; your involvement in the action; and
the disposition of the action, if any, including any monetary
compensation received by any party to the civil case(s), or any
convictions and/or sentences imposed on you or any party with
whom you are or were affiliated in the criminal case(s).
[ECF No. 107, p. 3]. In his original response, Plaintiff merely attached a two-page printout dated
March 6, 2004, from the Miami-Dade County Clerk of Court’s website. [ECF No. 107-2, pp. 1113]. This printout contained information about only a single criminal case in which Plaintiff was
the defendant.
4

Case No. 07-23381-CIV-GOLD/GOODMAN
In contrast to his original response to interrogatory number 5, Plaintiff’s supplemental
response is far more comprehensive. Plaintiff provides a detailed list of 17 criminal cases in
which Plaintiff was a defendant. Defendant contends that this response is inadequate because
Plaintiff does not state whether he was ever a witness in any judicial proceeding and, as to five
specified case numbers, provides insufficient details regarding the charges against him and the
resolution of the case. [ECF No. 137, pp. 3-4].
Defendant’s motion is granted in part and denied in part as to this interrogatory. Plaintiff
must serve a second supplemental response containing the requested information regarding any
judicial proceeding in which Plaintiff has been a witness. However, the Court finds that the
remainder of Plaintiff’s response sufficiently details Plaintiff’s criminal history and that, to the
extent Defendant requires additional detail, the records are readily, freely, and equally available
to Defendant online or in hard copy from the Miami Dade County Clerk of Court.
c. Interrogatory Number 8
This interrogatory states:
Have you ever been arrested? If so, for each such instance please
describe the circumstances surrounding the arrest(s), including the
date of the arrest(s), the city and state where the arrest occurred,
the charge upon which you were arrested, the names of all
witnesses and/or complainants involved in the arrest(s) as well as
the names of the law enforcement personnel and agencies involved
in the arrest(s).
[ECF No. 107, p. 4]. Plaintiff responded originally with only “See Interrogatory Number 5.”
[ECF No. 107-2, p. 16]. Plaintiff served a supplemental response, containing the exact same
one-sentence answer and it is again inadequate for the same reasons. Consequently, Plaintiff
shall serve on Defendant a supplemental response to interrogatory number 8 within twenty days.
This supplemental response shall provide all of the missing information requested in
interrogatory number 8.
5

Case No. 07-23381-CIV-GOLD/GOODMAN
It is clear, however, that this interrogatory overlaps in part with interrogatory number 5.
To the extent that Plaintiff’s response is the same to both interrogatories then Plaintiff may
incorporate that portion of his interrogatory number five supplemental response by reference.
For example, if every time Plaintiff was arrested a criminal prosecution was commenced (and
therefore a formal judicial proceeding occurred), Plaintiff may simply state as much and refer
Defendant to the information in his response to interrogatory number five.

Plaintiff is

nevertheless cautioned that interrogatory number eight asks, at least in part, for different
information than interrogatory number five, such as witness names and arrests that did not
result in formal criminal proceedings against Plaintiff, and Plaintiff is obligated to respond
fully to the entire interrogatory.
d. Interrogatory Number 11
This interrogatory states:
Have you ever been diagnosed with or treated for a mental illness
or disorder (including depression)? If so, please state what you
were diagnosed with, the name and address of the person who
diagnosed you, and what treatment you underwent. Please include
in your answer whether you are still receiving treatment for the
illness or disorder.
[ECF No. 107, p. 4]. Plaintiff originally responded “See Institution Mental Health Services for
DOC & GEO. I am still undergoing psychological treatment.” [ECF No. 107-2, p. 19]. The
Court agreed with Defendant that this response was incomplete because it does not directly
answer whether Plaintiff has been diagnosed with any mental illness and, if so, what the
diagnosis was and who is treating him. [ECF No. 109, p. 5].
In his supplemental response, Plaintiff stated that he was restricted from obtaining his
prison treatment records by the Florida Department of Corrections’ rules and regulations. He
also attached a copy of a prison request he made for his psychological records. This request was
6

Case No. 07-23381-CIV-GOLD/GOODMAN
denied, but the official who responded to the request indicated that the records would be
produced pursuant to a court order.
Defendant’s motion is granted with regard to this interrogatory.

While in certain

circumstances the production of records could satisfy this request, the discovery request at issue
here is an interrogatory and does not expressly require the identification of records. In addition,
it appears that Plaintiff does not have any records concerning prior mental health treatment or
cannot obtain copies. The interrogatory merely asks Plaintiff to explain whether he has ever
been diagnosed or treated for a mental illness or disorder and, if so, to provide certain supporting
details. Plaintiff must provide this information or, if he does not know this information, state
that he does not know it. Consequently, Plaintiff shall serve a second supplemental response to
interrogatory number 11 on Defendant within twenty days that provides all of the requested
information. If Plaintiff knows that he has been diagnosed with a mental disorder but is unsure
of the specific, technical name, then he shall say what he does know – including the name of the
institution and the names of the doctors who made the diagnosis.
The Court notes that Plaintiff did try to obtain his prison psychological records and the
Florida Department of Corrections indicated they would produce records if served with a Court
order. To the extent that it may alleviate Defendant’s concerns regarding Plaintiff’s response to
this interrogatory, the Court encourages Defendant to seek an order compelling the Department
of Corrections to turn Plaintiff’s records over to Defendant. Obtaining an order would eliminate
the need to litigate a potential Department objection to a subpoena.
e. Interrogatory Number 12
This interrogatory states:
If you are claiming emotional or psychological injury, please state
the nature of such injury and how it impacts your life. If you have
7

Case No. 07-23381-CIV-GOLD/GOODMAN
undergone treatment or counseling for your emotional or
psychological injury, please state the name and address of the
person who treated or counseled you and state whether you are still
undergoing treatment or counseling.
[ECF No. 7, p. 5]. In his original response, Plaintiff stated “See Institution Mental health
Services for DOC and GEO. The Plaintiff is suffering from continuance [sic] nightmares,
anxiety attacks and emotional distress.” The Undersigned agreed that the response did not fully
answer the request because, for example, it does not identify the name or address of any
treatment provider. [ECF No. 109, pp. 5-6].
Plaintiff’s supplemental response is better than his original answer, in that it contains
what appears to be a genuine list of perceived psychological ailments that Plaintiff claims
resulted from Defendant’s actions. However, completely omitted is any information describing
past treatment or the identities of the current treatment providers. 2 Plaintiff must therefore
serve a second supplemental response to interrogatory number 12 on Defendant within twenty
days that provides all of the information requested in interrogatory number 12. Plaintiff may, of
course, incorporate by reference portions of his second supplemental response to interrogatory
number 11, if in fact the referenced material is truly also responsive to interrogatory number 12.
But, if there are gaps between the incorporated-by-reference information provided in response to
Interrogatory 11 and the information required to be provided here, then Plaintiff shall provide the
information which has not already been provided (i.e., he shall provide all responsive
information not encompassed by the overlap between the two interrogatories).

2

Plaintiff indicated that he was currently receiving treatment in his original response to
interrogatory number 11
8

Case No. 07-23381-CIV-GOLD/GOODMAN
f. Interrogatory Number 13
This interrogatory states:
Have you ever been treated by a psychiatrist or psychologist? If so,
please state the name and address of the psychiatrist or
psychologist and whether you are still undergoing treatment.
[ECF No. 107-2, p. 21]. Plaintiff originally responded simply that Defendant should “See
Institution Mental Health Services for DOC and GEO.” The Undersigned concluded that this
response was incomplete for the same reasons that Plaintiff’s original responses to interrogatory
numbers 11 and 12 were incomplete.
In his supplemental response, Plaintiff describes four prison facilities at which he
received psychological or psychiatric treatment as well as the names of treatment providers at
three of these facilities. However, and as pointed out by Defendant, Plaintiff does not indicate
whether he is still undergoing treatment by the providers at these facilities. Consequently,
Defendant’s motion is granted as to this interrogatory and Plaintiff shall serve a second
supplemental response on Defendant within twenty days that provides all of the information
requested in interrogatory number 13. 3
g. Interrogatory Number 21
This interrogatory asks Plaintiff to:
Describe in detail where, and how Defendant purportedly procured
and/or manufactured Witness Dwight Mizzell.
[ECF No. 107-2, p. 29]. Plaintiff originally responded “See Interrogatory Number 9.” [Id.]
Plaintiff’s original response to Interrogatory number 9, in turn, provided:
During 2005, Dwight Mizzell did informed [sic] the Plaintiff that
the Defendant had gotten him to falsely accuse the Plaintiff. It was
3

The Court notes again that Plaintiff’s prison psychological treatment records may
minimize or even completely moot the need for additional answers to interrogatory numbers 11,
12, and 13.
9

Case No. 07-23381-CIV-GOLD/GOODMAN
not long afterward that (two or three months) that the case was
nolle prosqui. This happen [sic] at freedom supermarket, a store
on 22 Ave & Rutland St. Mizzell came up to me, first apologizing
and then explaining that in fact he was not present when the
homicide occurred, only arriving upon the crime scene after the
facts. Mizzell conveyed that the indication from the police was
that they wanted the Plaintiff convicted of the charge in the worst
way and he was promised a cash reward he never received.
[Id. at p. 17]. The Undersigned concluded that this response was not entirely unresponsive, but
was nonetheless somewhat vague and omitted many of the requested details.
Plaintiff’s supplemental response is as follows:
Dwight Mizzell said when he was told he had to testify, in order to
receive the crime stoppers reward, Mr. Mizzel told Det. Delaosa he
did not want to go to court cause [sic] he had gotten his
information from people off the street.
[ECF No. 137].
The Undersigned again concludes that this response is sufficiently ambiguous to require
an additional response with supplemental, clarifying information.

While the supplemental

response provides some additional information about Mizzell’s motivation, it does not describe
any actions on Defendant’s part that form the basis for Plaintiff’s allegations. Plaintiff must
specifically detail, at a minimum, what actions Defendant took to wrongfully procure Mizzell’s
allegedly false testimony against him. Plaintiff shall therefore serve a second supplemental
response on Defendant within twenty days that provides all of the details requested in
interrogatory number 21.
III.

Conclusions

Defendant’s renewed motion to compel complete responses (DE# 137) is GRANTED IN
PART and DENIED IN PART. Plaintiff must serve a second set of supplemental interrogatory
responses on Defendant within 20 days of this order. To the extent Plaintiff does not possess
any of the information requested by the interrogatories, Plaintiff must clearly indicate that fact in
10

Case No. 07-23381-CIV-GOLD/GOODMAN
his supplemental responses. However, Plaintiff is cautioned that, should he represent that he
does not know the information, Plaintiff may be barred from relying on that information as
evidence on summary judgment or at trial unless Plaintiff promptly supplements his response
and mails a copy of that supplemental information to Defendant in advance.
Defendant’s request for attorney’s fees and sanctions is DENIED. Plaintiff’s responses
were timely under the extended deadline and were more comprehensive than his original
responses. Moreover, Plaintiff is incarcerated and is proceeding pro se, and Defendant candidly
acknowledges he was unable to, and therefore did not, confer with Plaintiff before filing the
motions.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 22nd day of November,
2011.

Copies furnished to:
The Honorable Alan S. Gold
Stephen L. White, pro se
All counsel of record

11