Love v. Harrington et al

Filing 61

ORDER granting in part and denying in part 50 Motion to Compel; granting in part and denying in part 52 Motion for Order; denying 53 Motion for Extension of Time; granting in part and denying in part 54 Motion for Order; granting in part and denying in part 56 Motion to Compel; denying 57 Motion to Produce. By November 21, 2017, Defendants shall produce: (1) Plaintiffs medical records from November 2013 to November 2015; and (2) the departmental regulations relating to administration of discipline (Part 504, Subpart A) to the extent that Defendants have not already provided them. Signed by Magistrate Judge Reona J. Daly on 10/24/2017. (dam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

RODNEY LOVE,
Plaintiff,
vs.
RICHARD HARRINGTON, et al.,
Defendants.

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Case No. 3:15 CV 937 SMY/RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
This matter comes before the Court on Plaintiff’s six pending motions. (Docs. 50, 52, 53,
54, 56, 57.) Plaintiff is an inmate of the Illinois Department of Corrections and is currently
incarcerated at Stateville Correctional Center. On August 24, 2015, Plaintiff filed this action
pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. (Doc. 1.) On
August 12, 2016, the Court screened Plaintiff’s amended complaint, and Plaintiff now proceeds
against Defendants Veath and Hart on a single claim, alleging a violation of his right to
procedural due process under the Fourteenth Amendment in relation to Plaintiff’s disciplinary
proceedings in November 2013.
Plaintiff’s Motions to Compel Discovery
Plaintiff’s pending motions include two motions to compel discovery. Under the Federal
Rules of Civil Procedure, “parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(1). “Information within this
scope of discovery need not be admissible in evidence to be discoverable.” Id. “Rule 26 vests
this Court with broad discretion in determining the scope of discovery, which the Court exercises

mindful that the standard for discovery under Rule 26(b)(1) is widely recognized as one that is
necessarily broad in its scope in order to allow the parties essentially equal access to the
operative facts.” Scott v. Edinburg, 101 F. Supp. 2d 1017, 1021 (N.D. Ill. 2000). The Seventh
Circuit has recognized a trial court’s “broad discretion over discovery matters.” Spiegla v. Hull,
371 F.3d 928, 944 (7th Cir. 2004).
On October 19, 2016, Plaintiff served his First Set of Requests for Production. (Doc. 50
at 23-25.) On May 30, 2017, Plaintiff served his Second Set of Requests for Production. (Id. at
26-28.) On July 26, 2017, Plaintiff moved to compel Defendants’ responses to his requests for
production. (Doc. 50.) On September 18, 2017, Plaintiff filed a second motion to compel
Defendants’ responses to his requests for production. (Doc. 56.) Plaintiff takes issue with the
following responses:
First Set of Requests for Production
Request for Production No. 1: All notes, reported done by hearing investigator
Rebecca A. Cowan.
Response: Objection. Defendants object to this Request as seeking information
that is irrelevant, not reasonably calculated to lead to the discovery of admissible
evidence, overly broad in time and scope, unduly burdensome, and not
proportional to the needs of the case. See Fed. R. Civ. P. 26(b). All notes and
reports ever done by hearing investigator Rebecca A. Cowan are not relevant to
the instant case. Notwithstanding said objection, Defendants refer Plaintiff to
documents Bates stamped 000016-000018 previously provided herein.
Request for Production No. 2: All notes, reports done by Lt. Gieselman and Lt.
J. Powell.
Response: Objection. Defendants object to this Request as seeking information
that is irrelevant, not reasonably calculated to lead to the discovery of admissible
evidence, overly broad in time and scope, unduly burdensome, and not
proportional to the needs of the case. See Fed. R. Civ. P. 26(b). All notes and
reports ever done by hearing investigators Lt. Gieselman and Lt. J. Powell are not
relevant to the instant case. Notwithstanding said objection, Defendants refer
Plaintiff to documents Bates stamped 000016-000018 previously provided herein.

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Plaintiff argues that Defendants’ objections are improper because the requested
information is relevant to his claims to show evidence of motive, knowledge, policy, practice, or
custom. Even assuming that the requested documents are relevant, Plaintiff fails to address
Defendants’ objection that the request is overly broad, unduly burdensome, and disproportionate
to the needs of the case. Plaintiff’s claim pertains to a single disciplinary decision that occurred
on November 2013. The Court agrees that Plaintiff’s request for notes and reports without
limiting the period of time or identifying a specific topic is overly broad, unduly burdensome,
and disproportionate to the needs of the case. Therefore, Plaintiff’s Motion to Compel is denied
with respect to Requests for Production Nos. 1 and 2.
Request for Production No. 4: All Internal Affairs Memorandums dealing with
this issue.
Response: Defendants states that there are no responsive documents to this
request.
Plaintiff states that a correctional officer filed an incident report on November 20, 2013,
that states, “T.O.T. I/A”. (Doc. 50 at 7.) Defendants respond that the report does not indicate
that Internal Affairs prepared any memorandums related to the incident report and that Internal
Affairs informed defense counsel that it did not conduct an investigation regarding this incident.
In the absence of any compelling reason to question the credibility of the response and satisfied
by defense counsel’s investigative efforts, the Court credits Defendants’ response. Plaintiff’s
Motion to Compel is denied with respect to Request for Production No. 4.
Plaintiff argues that Defendants’ objections to Requests for Production Nos. 4, 7, 9, and
12 based on safety and security concerns are inappropriate. Defendants did not object on the
basis of safety and security concerns in response to Requests for Production Nos. 4, 7, 9, and 12,
but did object on that basis in response to Requests for Production Nos. 11 and 13. Specifically,
Plaintiff requested the identity of and any information from confidential informants, and
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Defendants objected on the basis of relevance and safety and security concerns. According to
the Adjustment Committee Report, the disciplinary decision relied solely on a correctional
officer’s statement, and the safety and security concerns raised by revealing the identity of
confidential informants are well established. See Merritte v. Kessel, 561 F. App’x 546, 548 (7th
Cir. 2014) (“Branding an inmate a snitch can expose him to serious harm and may violate the
Eighth Amendment.”). Plaintiff’s Motion to Compel is denied with respect to Defendants’
objections on the basis of safety and security concerns.
Request for Production No. 9: All internal memos on decisions of prison
officials that place inmates in seg. without notice or hearing.
Request for Production No. 10: Any complaints about prisoners being punished
for filing grievances from 2013 till 2017.
Request for Production No. 15: Any rules/policies/practices giving to staff to
follow dealing with procedures to follow dealing with Adjustment committee.
Plaintiff argues that Defendants cannot object to these requests because the requested
documents are relevant to show a pattern or practice.

Defendants object on the basis of

relevance and scope. As an initial matter, Plaintiff has not pled a pattern or practice claim
against a municipality or other governmental entity; rather, Plaintiff alleges a claim against two
individual defendants. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978). Plaintiff’s allegations state that he was placed in segregation with notice and hearing,
suggesting that Request No. 9 seeks irrelevant information. Request No. 10 similarly seeks
irrelevant information as Plaintiff’s claim pertains to procedural due process and does not
mention grievances or retaliation. Additionally, Plaintiff fails to place reasonable limitations
(e.g., time, facility) on any of the three requests. Plaintiff’s Motion to Compel is denied with
respect to Requests for Production Nos. 9, 10, 15.

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Request for Production No. 17: All materials by Kimberly Butler that’s relevant
to this issue. Also Richard Harrington.
Response: Objection. Defendants object to this Request as seeking information
that is irrelevant, not reasonably calculated to lead to the discovery of admissible
evidence, overbroad in time and scope, unduly burdensome, and not proportional
to the needs of the case. See Fed. R. Civ. P. 26(b). All materials by Kimberly
Butler and Richard Harrington are not relevant to the instant case.
Notwithstanding said objection, Defendants refer Plaintiff to documents Bates
stamped 000016-000018.
Plaintiff argues that Kimberly Butler and Richard Harrington were wardens at Menard
Correctional Center during the period of time relevant to this case. The Court observes a
disconnect between Plaintiff’s request for documents that are relevant and Defendants’ objection
on the basis of irrelevance but also recognizes the difficulties presented by attempting to fulfill a
request for all documents relevant to an unspecified issue – in other words, a vague request.
Plaintiff’s Motion to Compel is denied with respect to Request for Production No. 17.
Plaintiff also moves to compel with respect to Request for Production No. 18 in which
Plaintiff states that Defendants produced only a half-page of one document that details his
grievance history and requests a complete copy of the document. Defendants respond that they
have produced the document as they received it.

In the absence of any indication that

Defendants are withholding documents responsive to this request, Plaintiff’s Motion to Compel
is denied with respect to Request for Production No. 18.
Second Set of Requests for Production
Request for Production No. 1: Any and all grievances, complaints, or other
documents received by prison staff i.e. Defendants and other sources counselors
A.R.B. etc. concerning the mistreatment of inmates by defendants and any
memoranda, investigative files, or other documents created in response to such
complaints, since January 1, 2013 til present.
Request for Production No. 14: Internal Affairs Master files concerning Plaintiff
and Defendants.

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Plaintiff argues that he is entitled to information regarding prior complaints lodged
against Defendants and incidents of force involving Defendants.

Defendants objected to

Requests for Production Nos. 1 and 14, stating that such information is irrelevant to Plaintiff’s
claim of procedural due process. Significantly, Plaintiff’s claim does not involve an incident of
force; rather, Plaintiff alleges that Defendants refused to allow him to call a witness and falsified
the adjustment committee report. Plaintiff quotes Fed. R. Evid. 608(a), noting that Defendants’
credibility may be at issue if the case proceeds to trial. However, Fed. R. Evid. 608(a) allows
only for the admission of testimony regarding a witness’ character or reputation; the rule does
not extend to documents. Additionally, Plaintiff’s requests as written are overly broad and
disproportionate to the needs of the case. Plaintiff’s Motion to Compel is denied with respect to
Requests Nos. 1 and 14.
Request for Production No. 4: List any and all inmate workers name on the date
of this ticket and on the day of Adjustment committee. The gallery workers in N1
2013 on the date of the incident.
Response: Objection. Defendants object to this Request as it is outside the scope
of discovery as it is overly broad in time and scope, unduly burdensome, and not
proportional to the needs of the case. Fed. R. Civ. P. 26(b). Additionally,
Defendants object to the production of inmate worker’s names on the date of this
ticket and on the day of Adjustment Committee and gallery workers on the date of
the incident as it would violate privacy laws. Defendants also object to this
request as compliance with this request raises security concerns.
Request for Production No. 8: All of inmates names in N2 seg from 601 thru
605.
Response: Objection. Defendants object to this Request as it is outside the scope
of discovery as it is overly board in time and scope, unduly burdensome, and not
proportional to the needs of the case. Fed. R. Civ. P. 26(b). Additionally,
Defendants object to the production of all inmate names in N2 seg from 601 thru
605 as it would violate privacy laws. Defendants also object to this request as
compliance with this request raises security concerns.

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Plaintiff argues that he is entitled to responses for purposes of obtaining witnesses. With
respect to Request for Production No. 4, the focus of this action is conduct of Defendants Veath
and Hart on the date of Plaintiff’s disciplinary proceedings as well as the severity of deprivation
that followed, which renders irrelevant any testimony relating to the events that occurred on the
date of the ticket’s issuance. Moreover, the request is overly broad as Plaintiff neglects to limit
the request to inmate workers who might have, in fact, witnessed Defendants’ conduct. Request
for Production No. 8 is not limited with respect to time and is similarly overly broad. Plaintiff’s
Motion to Compel is denied with respect to Requests for Production Nos. 4 and 8.
Plaintiff argues that Defendants must respond to Requests for Production Nos. 6, 7, 9, 10,
11, 16, 21, and 22. With each of these requests, Plaintiff seeks documents related to his medical
treatment, and Defendants respond that Plaintiff’s allegations that he was exposed to mold
following the disciplinary proceedings are irrelevant to his claim of procedural due process. For
a procedural due process claim, Plaintiff must show: (1) a deprivation of a protected liberty or
property interest; and (2) the absence of constitutionally adequate procedural safeguards in
connection with the deprivation. Pro’s Sports Bar & Grill, Inc. v. City of Country Club Hills,
589 F.3d 865, 870 (7th Cir. 2009). Upon review of the docket, it appears that whether the
deprivation was of a sufficient severity to require constitutionally adequate procedural
safeguards remains an open issue.

(See Doc. 9 at 6.)

Although Plaintiff’s Requests for

Production are deficient in many respects, the Court finds that Plaintiff’s medical records are
relevant to his claim and that Plaintiff’s request for them is reasonable. Accordingly, the Court
orders Defendants to produce Plaintiff’s medical records from November 2013 to November
2015.1

1

To the extent Defendants are concerned about a HIPAA violation, the Court advises Defendants to move for a
protective order. See 45 C.F.R. § 164.512(e)(1)(v).

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***
Pursuant to the 2015 amendments, the Federal Rules of Civil Procedure require that “[a]n
objection must state whether any responsive materials are being withheld on the basis of that
objection.” Fed. R. Civ. P. 34(b)(2)(C). A benefit of this amendment is that a party is unlikely
to dispute objections if prevailing on the dispute would not result in the production of additional
documents.

Throughout Defendants’ responses, Defendants assert objections without

clarification as to the existence of responsive documents. Such clarification would have likely
alleviated many of Plaintiff’s concerns regarding discovery in this case, and the Court advises
that Defendants may benefit from complying with Fed. R. Civ. P. 34(b)(2)(C) in future
proceedings.
Other Motions
Plaintiff has moved for an order to compel prison officials to produce copies of the
departmental regulations relating to administration of discipline. (Docs. 52, 54.) According to
Plaintiff’s motions, Plaintiff has requested copies from the prison library, but his request was
denied. Defendants respond that the officials at Stateville Correctional Center, where Plaintiff
currently resides, are not parties to this action and that Defendants have provided Plaintiff with
the relevant portions of the departmental regulations. Although Plaintiff has not provided the
Court with a sufficient basis to issue an order against non-parties, Plaintiff’s request for the
departmental regulations is reasonable. Defendants do not object to Plaintiff’s possession of
such regulations and may have already satisfied his request. Accordingly, the Court orders
Defendants to provide Plaintiff with copies of the departmental regulations relating to
administration of discipline (Part 504, Subpart A) to the extent that Defendants have not already
provided them.

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Plaintiff moves for a complete copy of Defendants’ response to his motions regarding the
departmental regulations discussed above. (Doc. 57.) Plaintiff references the page numbering at
the bottom of Defendants’ four-page response, which suggests that the response consists of ten
pages. (See Doc. 55.) Despite the page numbering, Defendants’ four-page response nevertheless
appears to be a complete document with consecutively numbered paragraphs, a wherefore clause,
and a certificate of service. Moreover, Plaintiff’s motion suggests that he possesses the entirety
of Defendants’ response as it was filed with the Court. Accordingly, Plaintiff’s Motion for
Copies is denied.
Plaintiff also moves for an extension of time, alleging denial of access to the courts and a
lack of access to a copy machine. (Doc. 53.) Plaintiff fails to specify the deadline for which he
requests an extension. Accordingly, Plaintiff’s Motion for an Extension of Time is denied.
As indicated above, Defendants submitted a response to Plaintiff’s motions for order to
compel prison officials to produce copies of the departmental regulations relating to
administration of discipline. (Doc. 55.) Therein, Defendants moved for an order to compel
Plaintiff to respond to Defendants’ discovery requests. Notably, Defendants did not attach
copies of the discovery requests, and, according to the motion, Defendants filed the motion on
the same day they mailed correspondence as an effort to confer. Indeed, Defendants have failed
to comply with every aspect of the requirements for motions to compel set forth in the
Scheduling and Discovery Order (see Doc. 17 at 3), and the Court has no information regarding a
timeline, the substance of the requests, or the extent of any response. Accordingly, to the extent
Defendants have filed a motion to compel, it is denied.

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CONCLUSION
It is hereby ORDERED that Plaintiff’s Motions to Compel Discovery (Docs. 50, 56) are
GRANTED in part and DENIED in part. Defendants shall produce Plaintiff’s medical records
from November 2013 to November 2015 by November 21, 2017. It is further ORDERED that
Plaintiff’s Motions to Compel Prison Officials (Docs. 54, 57) are GRANTED in part and
DENIED in part. Defendants shall produce copies of the departmental regulations relating to
administration of discipline (Part 504, Subpart A) to the extent that Defendants have not already
provided them by November 21, 2017. It is further ORDERED that Plaintiff’s Motion for
Extension of Time (Doc. 53) and Motion for Copies (Doc. 57) are DENIED.

SO ORDERED.
DATED: October 24, 2017

s/
Reona J. Daly
l
UNITED STATES MAGISTRATE JUDGE

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