Bowles v. Dorethy et al
Filing
79
OPINION: Plaintiff's motions to compel are denied as unnecessary 66 , 72 . Defendant Hendricks' admission is conclusively established pursuant to Federal Rule of Civil Procedure 36(a)(3) and 36(b), subject to a well-supported motion to w ithdraw the admission filed by June 7, 2019, with an amended answer attached. Defendant Hendricks' motions to extend her dispositive motion deadline are denied 77 , 78 . The IDOC website reflects that Plaintiff is scheduled for parole on July 1 8, 2019, a few days before the final pretrial conference on July 23, 2019. If Plaintiff is paroled before the final pretrial conference, then Plaintiff must appear at the final pretrial conference in person. If Plaintiff is unable to appear in pers on, then by July 15, 2019 he must file a motion to appear by phone and show good cause why he cannot appear in person. Plaintiff must immediately notify the Clerk of any change in address and phone number or this case will be dismissed, with prejudice. SEE WRITTEN OPINION. Entered by Judge Michael M. Mihm on 05/30/2019. (SKN, ilcd)
E-FILED
Thursday, 30 May, 2019 11:51:38 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ALVIN BOWLES,
Plaintiff,
v.
WARDEN STEPHANIE
DORETHY,
CORRECTIONAL OFFICER
RANGE, LIEUTENANT
MILLARD,
AND PEGGY HENDRICKS
Defendants.
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16-CV-4121
OPINION
MICHAEL M. MIHM, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Hill
Correctional Center on claims of deliberate indifference to Plaintiff’s
seizure disorder and a claim of excessive force. Summary judgment
was granted to Warden Dorethy and denied to Correctional Officers
Millard and Range. The case was then stayed for service on
Defendant Nurse Peggy Hendricks, and discovery was had on the
claim against Nurse Hendricks. The final pretrial is set for July 23,
Page 1 of 7
2019 at 1:00 p.m. The jury selection and trial start September 16,
2019.
Plaintiff moves to compel Defendant Hendricks to respond to
Plaintiff’s following request to admit, which Plaintiff sent to defense
counsel on or around October 18, 2018:
Admit or deny: You “Nurse Peggy Hendricks” said that
there was nothing that the Healthcare Unit could do until
the inmate was actually having a seizure, to let the
Healthcare Unit know if the inmate started to have a
seizure, as was stipulated by Correctional Officer Jamar
Range via affidavit (P3) relating to phone call he had with
you on August 5, 2015. Affidavit copy attached.
(d/e 73.)
Nurse Hendricks did not respond to this request to admit,
prompting Plaintiff to file his first motion to compel on January
10, 2018. Nurse Hendricks’ counsel then responded that he
was initially unaware of the request due to an internal
docketing error and that he learned of the pending request at
Plaintiff’s deposition (which was held on December 18, 2018).
Defense counsel sent Nurse Hendricks’ late response to the
request to admit on or about January 25, 2019. The response
states:
Page 2 of 7
After a reasonable inquiry and based on the
information available, Defendant is unable to admit
or deny.
(d/e 71-2.)
Plaintiff then filed a second motion to compel, asserting that
Nurse Hendricks’ response is actually no response at all, giving
Plaintiff no information on Nurse Hendricks’ position and preventing
Plaintiff from preparing for trial.
The Court agrees with Plaintiff. Federal Rule of Civil Procedure
36(a)(4) provides that “the answering party may assert lack of
knowledge or information as a reason for failing to admit or deny
only if the party states that it has made reasonable inquiry and that
the information it knows or can readily obtain is insufficient to
enable it to admit or deny.” Even in response to Plaintiff’s motion to
compel, Nurse Hendricks does not explain what reasonable inquiry
she made or what readily available information she consulted. See
Flint v. City of Milwaukee, 2014 WL 5431153 (E.D. Wis. 2014)(“If a
party makes a reasonable inquiry and still ‘cannot truthfully admit
or deny the matter,’ it must, in its response, ‘set forth in detail the
reasons why this is so.’”)(quoted cite omitted); Loudermilk v. Best
Pallet Co., LLC, 2009 WL 3272429 (N.D. Ill. 2009)(not published in
Page 3 of 7
Fed.Rptr.)(“Plaintiff's answer must include a detailed description of
the reasonable inquiry undertaken by Plaintiff, and specific reasons
why Plaintiff is still unable to admit or deny the requests after the
reasonable inquiry.”); Cada v. Costa Line, Inc., 95 F.R.D. 346, 348
(N.D. Ill. 1982)(“Statements of inability to admit or deny are of
course permitted by Rule 36, but they must be supported by specific
reasons.”).
Further, Nurse Hendricks’ failure to respond to the request to
admit within 30 days means that the she has admitted the matter.
Fed. R. Civ. P. 36(a)(3)(“A matter is admitted unless, within 30 days
after being served, the party to whom the request is directed serves
on the requesting party a written answer or objection . . . .”). Her
admission “is conclusively established unless the court, on motion,
permits the admission to be withdrawn or amended.” Fed. R. Civ. P.
36(b). Defendant Hendricks has not filed a motion to withdraw the
admission. Such a motion would have to demonstrate that allowing
the withdrawal would not prejudice Plaintiff and would “promote the
presentation of the merits of the action.”
In short, Nurse Hendricks has not moved to withdraw her
admission, nor has she demonstrated the sufficiency of her late
Page 4 of 7
response to the request for admission. Accordingly, her admission
is conclusively established, subject to a well-supported motion to
withdraw the admission.
Defendant Hendricks’ second and third motions to extend her
dispositive motion deadline are denied on the grounds of futility and
undue delay. The Court already observed that summary judgment
for Defendant Hendricks would be unlikely whether or not
Defendant Hendricks admitted or denied the statement:
Either Nurse Peggy did or did not tell Defendant
Range that nothing could be done until Plaintiff
actually had a seizure. If Nurse Peggy did make
that statement, a reasonable juror, even as a
layperson, could find that such advice was
blatantly inappropriate in the sense that Plaintiff
should have at least been observed by someone
until his auras passed. If Nurse Peggy denies the
statement, that only raises another disputed fact
for the jury to decide.
(5/21/18 Order.) The Court does not see how a
dispositive motion can resolve this dispute. Even if Nurse
Hendricks asserts that she does not recall the incident
and would never have made such a statement, Defendant
Range avers that Nurse Range did make that statement.
Page 5 of 7
A disputed fact would still remain for the jury. As the
Court already observed, “Nurse Peggy’s part in the
story is short but central, with Defendants Millard and
Range pointing at Nurse Peggy to justify their own
actions.” (5/21/18 Order p. 11.)
Further, sufficient time has already been allowed for
a dispositive motion to be filed. Discovery originally
closed on this claim on December 31, 2018, and was then
extended to March 1, 2019 with a dispositive motion due
April 1, 2019. The dispositive motion deadline was then
extended 30 days to May 1, providing 60 days past the
discovery deadline to file a dispositive motion. Defendant
Hendricks’ second and third requests for extension would
extend that deadline until June 18, another 48 days, for a
total of more than 100 days after discovery closed and too
close to the final pretrial conference.
IT IS ORDERED:
1) Plaintiff’s motions to compel are denied as unnecessary.
(d/e’s 66, 72.) Defendant Hendricks’ admission is conclusively
established pursuant to Federal Rule of Civil Procedure 36(a)(3) and
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36(b), subject to a well-supported motion to withdraw the admission
filed by June 7, 2019, with an amended answer attached.
2) Defendant Hendricks’ motions to extend her dispositive
motion deadline are denied. (d/e’s 77, 78.)
3) The IDOC website reflects that Plaintiff is scheduled for
parole on July 18, 2019, a few days before the final pretrial
conference on July 23, 2019. If Plaintiff is paroled before the final
pretrial conference, then Plaintiff must appear at the final pretrial
conference in person. If Plaintiff is unable to appear in person, then
by July 15, 2019 he must file a motion to appear by phone and
show good cause why he cannot appear in person. Plaintiff must
immediately notify the Clerk of any change in address and phone
number or this case will be dismissed, with prejudice.
ENTER: 5/30/2019
FOR THE COURT:
s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE
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