Harry et al v. Gainous

Filing 37

ORDER denying 29 Omnibus Motion Pursuant to Local Rule 7.1 to Include Subparts A-E.Ordered by Judge W. Louis Sands on 3/29/2013 (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
ANGELA HARRY, individually
:
and as next of friend of J.H., a minor, :
:
Plaintiffs,
:
:
v.
:
:
TIM GAINOUS,
:
:
Defendant.
:
:

CASE NO.: 1:10-CV-130 (WLS)

ORDER
Before the Court is what Plaintiff titled as an “Omnibus Motion Pursuant to Local
Rule 7.1 to Include: Subparts A-E.” (Doc. 29.) The Motion is comprised of a motion for
enlargement of time for discovery and other deadlines; a motion for leave to amend
complaint; a motion to compel and for sanctions; motion for leave to depose Ricky
Dewayne Reynolds; and a motion for the court to hold a hearing on discovery of mental
health records for Reynolds. (Id. at 1.) Because Plaintiff has failed to comply with the
Court’s deadlines and rules, Plaintiff’s Omnibus Motion and its subparts are DENIED.
PROCEDURAL and FACTUAL BACKGROUND
This case has been around a long time. Angela Harry, individually and as next
friend of J.H., a minor, filed the first complaint in this case on September 29, 2010.
(Doc. 1.) The complaint alleges that Defendant Tim Gainous, the jail administrator for
the Grady County Sheriff’s Department, is liable for the wrongful death of Wade Harry,
a pretrial detainee in the Grady County Jail, under 42 U.S.C. § 1983 and Georgia law.
Plaintiff claims Gainous has a policy of minimizing cost at the Grady County Jail.

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Because of that, the jail housed violent inmates close to nonviolent misdemeanor
offenders, such as Harry, and did not keep prescription medications on hand. These
conditions allegedly created a perfect storm. On August 21, 2009, Ricky Dewayne
Reynolds—a convicted felon with paranoid schizophrenia and a twenty-year history of
violent crime—attacked and killed Harry while experiencing hallucinations. According
to the Complaint, Reynolds’s attack was unprovoked. And, before it occurred, Reynolds
had allegedly requested Risperidone, a prescription medication used to treat
schizophrenia, but the jail did not stock or fill his prescription because Gainous wanted
to keep costs low.
The discovery has been ongoing for some time. The Court entered a Scheduling
and Discovery Order on January 1, 2011. (Doc. 11.) It provided that fact discovery should
be completed by August 1, 2011. (Id. at 2.) Nevertheless, the Parties, often jointly, have
moved to extend the deadline to complete discovery no less than six times. (Docs. 14, 16,
19, 21, 23, 27.) After the fourth request for extension, the Court entered an Order
granting the request but advising that
the Court will grant no further extension, except to avoid manifest
injustice based upon timely written motion for good cause shown not
reasonably foreseeable or reasonably avoidable by the moving party(ies).
The parties are ORDERED to fully and timely cooperate so as to
complete discovery in the amended time limits allotted.
(Doc. 22.) Since then, Plaintiff moved twice to amend the discovery order. (Docs. 23,
27.) In the majority of these motions, the Parties have requested extension because of
their “heavy litigation schedules.” (E.g., Doc. 23.) The Court granted these requests.
(Docs. 26, 28.) The last order extended discovery until January 15, 2013. (Doc. 28.)
On June 14, 2011, nonparty Behavioral Health Services of South Georgia (“BHS”)
appeared in this case to quash a subpoena for Reynolds’s mental health records. (Doc.

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12.) BHS claimed that the health records were privileged under Georgia and federal law
and Plaintiff had not made the proper assurances to keep the records confidential.
Plaintiff did not respond to the motion to quash, and the Court granted it. (Doc. 13.)
On February 1, 2013, several weeks after the close of discovery, Plaintiff filed the
instant “Omnibus Motion.” (Doc. 29.) The omnibus motion contains five subparts,
mostly comprised of discovery motions. In addition to seeking more time for discovery,
Plaintiff filed a motion to compel certain jailers to disclose their conversations with
defense counsel. Plaintiff filed the motion to compel more than twenty-one days after
the alleged violation and failed to include a certificate of good faith. For the first time,
Plaintiff also moves the Court to grant leave to depose Reynolds because he is
incarcerated, presumably at Augusta State Medical Prison. Furthermore, Plaintiff
requests a hearing on the discovery on Reynolds’s mental health records.
DISCUSSION
I. Motion to Compel
Plaintiff moves to compel certain jailers to answer unspecified questions during the
depositions about conversations with defense counsel. Defendant opposes this motion
in part because the motion falls outside the Court’s twenty-one-day deadline for motions
to compel, set forth in the Court’s Scheduling and Discovery Order.
The Court agrees. The Court’s January 19, 2011 scheduling order provided that:
Unless extended by the Court upon a showing of good cause by either
party upon written motion, all motions to compel discovery shall be filed
within twenty-one (21) days of the date on which the response(s) was due
or twenty-one (21) days of receipt of an allegedly inadequate response, and
not later than twenty-one (21) days after the close of discovery, whichever
first occurs.

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(Doc. 11 at 2.) The purpose, as the Court explained at the Discovery Conference, of the
21-21-21 Rule, is to allow the parties time to cooperate and resolve discovery disputes
without the Court’s intervention, and in the event of failure, to present unresolved issues
to the Court near the time of occurrence to prevent stale disputes from unduly affecting
other discovery or complicate later unrelated discovery disputes. As the Order states
and the Court explained at the conference, the Court extends the twenty-one-day
window when a party makes a timely request for an extension upon a showing of good
cause.
This case illustrates the wisdom of that rule. Plaintiff claims six witnesses on
January 9, 2013, refused to answer questions about what defense counsel told them
during a previous meeting. Plaintiff filed the instant motion more than twenty-one days
after the alleged inadequate responses. If the Court granted the motion to compel,
presumably the Parties would need to re-depose all of these witnesses—requiring the
Court to extend the discovery deadline yet again and making every witness reappear for
a second time.
This error is further compounded by Plaintiff‘s failures to include a
memorandum of authorities and a certificate that she tried to resolve the dispute in
good faith. Federal Rule of Civil Procedure 37(a)(1) unambiguously explains a motion to
compel “must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in
an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Further, Local Rule
7.1 requires parties to include memorandums of law with their motions. L.R. 7.1. Federal
Rule 37, combined with the Court’s 21-21-21 rule, encourages parties to resolve
discovery disputes without the Court’s intervention. When parties need the Court’s

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involvement, the Court expects the issues to be succinctly stated with supporting
authority.
Plaintiff complied with none of these rules. The motion falls outside of the
deadline, it lacks a certificate, and Plaintiff did not bother to cite to a single source of
binding authority. Furthermore, Plaintiff did not move to extend the deadline. As a
result, the instant motion presents an untimely discovery dispute on a vague
disagreement that requires the Court to independently research Plaintiff’s claims.
Plaintiff’s Motion to Compel is DENIED.
II. Motion to Amend Complaint
Plaintiff also moves to amend the complaint. In support of this motion, Plaintiff
claims good cause is shown to extend the scheduling and discovery order because she
discovered new facts during discovery. Furthermore, Plaintiff argues the amendments
will not cause undue prejudice.
The Court agrees with Defendant that Plaintiff has not shown good cause. The
Scheduling and Discovery Order in this case set the deadline to amend pleadings as
April 15, 2011. Almost two years have elapsed since that deadline. Accordingly, because
the motion falls far outside the scheduling deadline, plaintiff must make a good cause
showing to modify the order. Fed. R. Civ. P. 16(b); Sosa v. Airprint Sys., Inc., 133 F.3d
1417, 1418 (11th Cir. 1998). Furthermore, “[t]his good cause standard precludes
modification unless the schedule ‘cannot be met despite the diligence of the party
seeking extension.’” Sosa, 133 F.3d at 1418 (quoting Fed. R. Civ. P. 16 advisory
committee’s note).
Plaintiff claims she made a showing of good cause because she discovered new facts
during the January 9, 2013 depositions and wants to include them in a second amended

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complaint.1 The problem with this showing is that it does not explain why Plaintiff could
not have discovered these facts before the deadline with due diligence. The Court has
extended the discovery deadline six times. The excuse of having a heavy litigation
schedule does not absolve Plaintiff of focusing the issues within the set-forth deadlines.
Plaintiff has not made any other showing that persuades the Court she has been diligent
about discovering the relevant facts in this case.
Accordingly, the Motion to Amend is DENIED.
III.

Motion for Enlargement of Time for Discovery, Motion for Leave to
Depose Ricky Dewayne Reynolds, and Motion for Court to Hold
Hearing for Discovery of Mental Health Records of Ricky Dewayne
Reynolds

Plaintiff also requests an extension of the time for discovery, leave of the court to
depose Reynolds, and a hearing on whether they can obtain his mental health records.
Defendant opposes the extension because Plaintiff has not shown excusable neglect for
failing to move for discovery during the discovery phase and because they did not
respond to BHS’s motion to quash.
Regardless of whether Plaintiff has shown “excusable neglect” for her failure to
timely move to enlarge discovery,2 see Fed. R. Civ. P. 6(b)(1)(B), the Court finds Plaintiff
has not shown good cause to amend the Scheduling and Discovery Order under Rule
16(b)(4). This is consistent with the Court’s finding on Plaintiff’s Motion to Amend.
Again, the Court has enlarged the time for discovery six times. The fact that Plaintiff is
now moving to depose an allegedly key witness for the first time—after the close of
discovery—is inexcusable. As Defendant points out, the purported heart attack of
This explanation is obviously not the entire story. In addition to adding new facts, the amended
complaint also contains a brand-new request for attorney fees. Plaintiff made no attempt to show why
they should be excused for failing to add that claim before the expiration of the time to amend.
2 But the Court does add that Plaintiff made no attempt to explain her failure to timely move to enlarge
the discovery.
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Plaintiff’s expert is not grounds for extending the discovery deadline because Plaintiff
allegedly failed to make timely expert disclosures.
Furthermore, Behavioral Health Services moved to quash the subpoena for the very
same records on June 14, 2011. (Doc. 12.) Plaintiff did not respond to that motion. (See
Docket.) Because Plaintiff failed to comply with Rule 45 of the Federal Rules and did not
bother responding to the motion to quash, the Court quashed the subpoena. Plaintiff
never attempted to submit a proper subpoena or timely move the Court to issue an order
on the medical records.
Therefore, Plaintiff’s Motion for Enlargement of Time for Discovery and other
Deadlines, Motion for Leave to Depose Ricky Dewayne Reynolds, and Motion for Court
to Hold Hearing for Discovery are all DENIED.
CONCLUSION
Based on the foregoing, Plaintiff’s Omnibus Motion (Doc. 29) and all of its
subparts are DENIED.
SO ORDERED, this 29th day of March 2013.

/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

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