Jellis v. Harrington et al
ORDER DENYING 101 Motion to Compel; MOOTING 102 Motion to Compel; MOOTING 105 Motion to Compel; DENYING WITHOUT PREJUDICE 106 Motion ; DENYING WITHOUT PREJUDICE 108 Motion to Compel; DENYING WITHOUT PREJUDICE 109 Motion to Compel; D ENYING WITHOUT PREJUDICE 112 Motion to Compel; DENYING WITHOUT PREJUDICE 113 Motion ; DENYING 114 Motion to Compel; DENYING WITHOUT PREJUDICE 115 Motion for Hearing; STRIKING 116 Reply; DENYING WITHOUT PREJUDICE 118 Motion to Appoint Counsel ; DENYING IN PART 129 Motion. See Order for details. Signed by Magistrate Judge Donald G. Wilkerson on 1/30/17. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOURVILLE, RYAN DAVIS, LARRY)
TIMOTHY VEATH, JASON HART, AIMEE)
LANG, and ROBERT SHEARING,
Case No. 3:15-cv-630-NJR-DGW
WILKERSON, Magistrate Judge:
Now pending before the Court are eight (8) motions to compel (Docs. 101, 102, 105, 106,
108, 109, 112, and 114) filed by Plaintiff, responses (Docs. 107, 110, 111, 117, 119), and replies
(Docs. 116 and 121); the motion for permission to ask 15 more interrogatories filed by Plaintiff
(Doc. 113); the motion for hearing filed by Plaintiff (Doc. 115); the motion to appoint counsel filed
by Plaintiff (Doc. 118); and, the motion requesting mandate filed by Plaintiff (Doc. 129).
Plaintiff is proceeding on various counts related to an incident that occurred on August 27,
2013 while he was housed at the Menard Correctional Center. Plaintiff claims that he was
attacked by correctional officers, that he was falsely written up on disciplinary charges, that he did
not receive due process at the subsequent hearing, and that he did not receive adequate medical
care. Plaintiff has been permitted to proceed on the following claims:
COUNT 1: Harrington ordered the attack on Jellis or conspired to facilitate the
attack, in violation of Jellis’s Eighth Amendment rights.
COUNT 2: Tourville carried out Harrington’s orders to attack Jellis or conspired to
facilitate the attack, in violation of Jellis’s Eighth Amendment rights.
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COUNT 3: Hale and Lindenberg used excessive force against Jellis, in violation of
Jellis’s Eighth Amendment rights.
COUNT 5: Davis wrote a false disciplinary ticket against Jellis concerning Jellis’s
conduct in the prison cafeteria, in violation of Jellis’s due process rights.
COUNT 6: Harrington, Veath, and Hart imposed punishment on Jellis without
providing him a fair hearing, in violation of Jellis’s due process rights.
COUNT 8: Lang delayed giving Jellis treatment for the injuries he incurred during
the attack, in violation of Jellis’s Eighth Amendment rights.
COUNT 9: Dr. Shearing failed to give Jellis treatment for the injuries he incurred
during the attack, in violation of Jellis’s Eighth Amendment rights.
(Doc. 7). Pursuant to an Order entered on October 11, 2016 (Doc. 103), the discovery deadline is
January 30, 2017 and the dispositive motion filing deadline is February 17, 2017. This matter
currently is set for a final pretrial conference on April 12, 2017 and a jury trial on May 2, 2017
(Doc. 43). That Court has carefully considered the motions filed by Plaintiff and finds the
1. Doc. 101 directed at Dr. Shearing:
Plaintiff seeks to compel Dr. Shearing’s response to 17 interrogatories and requests to
produce Dr. Shearing’s employee timesheet, “management roster sheet,” certain Wexford Health
Sources, Inc. policies, the contract between Wexford and the IDOC, and documents demonstrating
complaints against Dr. Shearing while employed at Menard CC.
These are merits based
discovery requests that were served before the exhaustion issue was resolved as to Dr. Shearing by
the September 28, 2016 Order (Doc. 99) and not, as the Plaintiff mistakenly believes, the July 22,
2016 Report and Recommendation (Doc. 89). As such, the discovery responses were not due
until October 28, 2016, after the date this motion was filed (on October 3, 2016). This Motion is
accordingly DENIED as premature. Plaintiff’s request for costs, in the amount of $54.30 is
likewise DENIED. Even if the motion had been granted, it is unclear why it cost Plaintiff that
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amount of money to file a 10 page document and mail some documents to Defendants requesting
discovery compliance. A request for costs pursuant to Federal Rule of Civil Procedure 37 will not
be granted absent some proof that money was reasonably spent.
2. Doc. 102 directed at IDOC Defendants:
Plaintiff seeks to compel the disclosure of the 2013 time sheets of Defendants Hale and
Tourville, the August 29, 2013 “Roster Management Sheets” of Defendants Veath, Hart, and
Davis, and an internal affairs report authored by Defendant Thomas on September 10, 2013 and
October 29, 2013. In their response, Defendants indicated that they have answered Plaintiff’s
discovery requests and that they will supplement when more discovery responses are received
from their clients (which the Court assumes has already occurred). As there is no showing of
prejudice, this motion is MOOT. Plaintiff’s request for $39.00 in costs is DENIED.
3. Doc. 105 directed at Dr. Shearing:
Plaintiff states that he did not receive a copy of Defendant’s objection (Doc. 92) to the
Report and Recommendation (Doc. 89). Defendant mailed a copy to Plaintiff but it appears that
he did not receive the copy. As the exhaustion issue has been resolved and there is no prejudice to
Plaintiff, this motion is MOOT. Plaintiff’s request for $30.35 in costs is DENIED.
4. Docs. 106, 108, 109, 112 directed to the IDOC Defendants:
These motions are DENIED WITHOUT PREJUDICE. In Defendants’ responses to
Plaintiff’s motions, they appear to indicate that they have provided responses to discovery requests
or that Plaintiff already possess copies of the documents requested. It is unclear to the Court what
documents/responses Plaintiff still requires. In order to ascertain what discovery disputes are still
active, Plaintiff shall provide: (1) a list of the requests to produce to which a document has not
been produced in this litigation; the date that the request to produce were served upon Defendants;
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and, the date that responses, if any, were made; and (2) Plaintiff shall also list the interrogatories to
which an answer is still due, when the interrogatory was served, and the response, if any. It is
unnecessary to provide copies of the actual requests to produce or the documents actually
produced. Plaintiff shall indicate why the documents requested are relevant. Plaintiff shall file
this document, containing the two lists, as a motion to compel. The motion shall be filed within
fourteen (14) days of the date of this Order. Defendants shall respond within seven (7) days of the
filing of the response. Again, Plaintiff’s requests for costs will not be granted absent a showing
that they were reasonably incurred.
Plaintiff’s reply brief, Doc. 116 is hereby STRICKEN. Reply briefs are not favored and
Plaintiff’s basis for replying is not supported by the record.
5. Doc. 113 – Request to serve additional interrogatories:
This motion is DENIED WITHOUT PREJUDICE. Plaintiff has not attached a copy of
the additional interrogatories that he seeks to serve upon Defendants. Plaintiff may refile.
6. Doc. 114 directed at Dr. Shearing:
Plaintiff seeks to compel the production of documents from Dr. Shearing that are in the
care and custody of a third party to this litigation, the IDOC. While the Court is mindful that
various employees of the IDOC are being sued by Plaintiff and that Dr. Shearing and the other
Defendants were employed at the Menard CC, it does not follow that they each have access to and
can produce the documents requested by Plaintiff. Dr. Shearing has made reasonable objections,
that he does not have copies of various Menard CC institutional directives, administrative
directive, and/or log sheets. Plaintiff should request these documents from either the IDOC (via a
subpoena). This motion is accordingly DENIED.
The Court notes that the discovery deadline expires on this day. As such, Plaintiff must
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seek an extension of that deadline if he still requires the documents. To that end, the Clerk of
Court is DIRECTED to send to Plaintiff along with a copy of this Order one blank subpoena.
Plaintiff shall fill out the document and submit it to the Court for review along with his motion for
extension of the discovery deadline.
7. Doc. 115 seeking a video conference:
This motion is DENIED WITHOUT PREJUDICE. Once Plaintiff has filed the motion
to compel and Defendants have responded (as indicated above), the Court will consider whether a
hearing is necessary.
7. Doc. 118 request for counsel for trial:
This motion is DENIED WITHOUT PREJUDICE. Recruitment of counsel will be
considered once motions for summary judgment have been filed and an order has been entered.
8. Doc. 129 “Motion requesting mandate:”
Plaintiff seeks answers to requests to admit related to the contents of various
documents that would show where and/or when the target Defendants were working during the
relevant time period (See Docs. 122, 124-128). Plaintiff indicates that he believed that the parties
had an agreement wherein Defendants would make the admissions in lieu of producing time sheets
or duty roster sheets that would reflect the same information. As of the date of this Order, only
Defendant Shearing has responded to the Motion; however the other Defendants, Davis, Hale,
Hart, Lang, Tourville, and Veath, have filed the answers to the requests to admit. Defendants
appear to object because Plaintiff failed to file his requests to admit as required by Local Rule
The Court has reviewed the deposition transcript and the requests attached to Plaintiff’s
motion, and Defendants’ responses. Defendants are not under any obligation to sign the requests
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to admit and admit the statements made therein. The Motion is accordingly DENIED IN PART.
However, it seems to the Court that Plaintiff merely seeks a document that would indicate
where, when, and in what capacity each of Defendants was working in during the relevant time
periods or a statement of the same made under oath. This seems like a simple enough question for
Defendants to answer. Therefore, in an effort to move these proceedings along and resolve this
matter expeditiously, each Defendant shall serve upon Plaintiff, and file with the Court, the
following within fourteen (14) days of the date of this Order:
1. Dr. Shearing shall serve upon Plaintiff a statement of where, between what
times, and in what capacity he was working on September 20, 2013.
2. Defendants Veath and Hart shall serve upon Plaintiff as statement of where,
between what times, and in what capacity they were working on August 29, 2013.
3. Defendant Lang shall serve upon Plaintiff a statement of where at Menard CC,
between what times, and in what capacity she was working on September 5, 2013
and September 16, 2013.
4. Defendants Hale, Tourville, and Davis shall serve upon Plaintiff a statement of
where at Menard CC, between what times, and in what capacity they were working
on August 27, 2013.
These statements shall be in the form of a stipulation.
In light of the foregoing, Documents 101 and 114 are DENIED; Documents 102 and 105
are MOOT; Documents 106, 108, 109, 112, 113, 115, and 118 are DENIED WITHOUT
PREJUDICE; Document 129 is DENIED IN PART; and, Document 116 is STRICKEN.
DATED: January 30, 2017
DONALD G. WILKERSON
United States Magistrate Judge
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