Whitfield v. Lawrence Correctional Center et al

Filing 94

ORDER DENYING IN PART 92 Motion for Discovery; GRANTING 92 Motion for Extension of Time to File Response/Reply re 87 MOTION for Summary Judgment ( Responses due by 3/7/2014). Signed by Magistrate Judge Donald G. Wilkerson on 2/5/14. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENYEHUDAH WHITFIELD,

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Plaintiff,
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v.
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RUSSELL J. GOINS, TIMOTHY LOVE, TIM)
MCCALLISTER, and LEE RYKER,
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Defendants.
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Case No. 3:06-cv-968-DGW

ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court on the Second Motion to Repoen Discovery filed by
Plaintiff, BenYehudah Whitfield, on December 26, 2013 (Doc. 92). The Motion is DENIED IN
PART.
On October 18, 2013, Defendants filed a Motion for Summary Judgment on the merits of
Plaintiff’s claims (Doc. 87). There are six (6) remaining claims in this matter, against the
Defendants listed above in the caption, alleging First Amendment violations, equal protection
violations, and claims of unconstitutional policies and practices. Defendants generally argue that
Plaintiff cannot show that any of them were personally involved in the alleged deprivations and
that there were legitimate reasons for restricting Plaintiff’s First Amendment rights.
On November 18, 2013, Plaintiff filed a Motion to Reopen Discovery (Doc. 90) and stated
that he required copies of grievances he had submitted to the prison where he was incarcerated,
that had been destroyed in a flood, in order to respond to the Motion for Summary Judgment.
That Motion was denied without prejudice because Plaintiff did not support the Motion with an
affidavit as required by Federal Rule of Civil Procedure 56(d) (Doc. 91).

Plaintiff now has presented a declaration in which he states that he does not “recall a lot of
the important facts and/or information relating to the allegations” and that he requires the
grievances and responses that he submitted regarding the events (which took place in 2005 and
2006) to refresh his memory.1 Plaintiff further states that he requested copies of the grievances
but that the requests were denied by the Illinois Department of Corrections and the Illinois
Attorney General’s Office (through a Freedom of Information Act request). Plaintiff further
seeks to serve interrogatories and requests for production of documents upon Defendants.
Plaintiff does not specify what these discovery requests may be or why he had not made such
requests before the discovery deadline of September 27, 2013.
In response, Defendants note that the grievances are inadmissible hearsay and may not be
used as evidence in this matter. Defendants also note that the grievances that Plaintiff seeks are
attached to their Motion for Summary Judgment on Exhaustion filed on April 30, 2012 (Doc. 62).
Discovery in this matter will not be reopened. Plaintiff has offered no excuse as to why he
failed to conduct discovery prior to the discovery deadline. Plaintiff also does not specify what
discovery he seeks from Defendants (other than the grievances) nor has he provided the Court with
any proposed discovery requests. This matter has been pending for a significant time and
additional delays can no longer be sanctioned. In order to move these proceedings along,
Defendants are ORDERED to file any grievances and responses in their possession related to the
remaining claims in this matter, that have not already been filed with the Clerk of Court as an
exhibit or otherwise, by February 12, 2014. To the extent that Plaintiff requires copies of the

1

Plaintiff did have copies of these grievances but they were destroyed in a recent flood at his
residence (he indicates that he did not become aware that they were destroyed until September 28,
2013). Plaintiff has provided no indication of the dates of these grievances or how many there
may be.
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grievances that are already contained in the record, he may contact the Clerk’s office to arrange for
copies (of Document 62 and its exhibits and/or any other documents he may require). Plaintiff is
GRANTED until March 7, 2014 to respond to the Motion for Summary Judgment. No further
extensions will be granted. Plaintiff is encouraged to swiftly review the grievances contained in
the record, those that may be filed by Defendants on February 12, 2014, and file a response to the
Motion for Summary Judgment. The failure to respond to the Motion for Summary Judgment by
the deadline may result in judgment being entered in favor of Defendants and against Plaintiff.

IT IS SO ORDERED.
DATED: February 5, 2014

DONALD G. WILKERSON
United States Magistrate Judge

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