Phernetton v. McDonalds

Filing 58

OPINION AND ORDER: Court DENIES 25 Motion for Relief and Response to Motion; STRIKES 33 Motion of Response to Defendant Counsel; GRANTS 35 Motion to Compel; GRANTS IN PART AND DENIES IN PART 36 Motion to Strikes Certain of Plaintiff&# 039;s Filings; DENIES 37 Motion to Deem Defendant's Request to Admit as Admitted Against Plaintiff; STRIKES 39 Motion for Continuance and Medical Reports; DENIES 43 Motion for Cease and Desist and Contempt; DENIES 45 Motion to A ppoint Legal Counsel; STRIKES 48 Motion of Notification; and DENIES 50 Motion to Continue. The Court STRIKES DE 3-5, 14, 20. Clerk to AMEND the docket to show that 53 is a response brief. If Phernetton did not submit to a deposition on 8/6/2014, he is DIRECTED to submit to a deposition by 9/22/2014. Failure to comply may result in sanctions. Signed by Magistrate Judge Andrew P Rodovich on 8/12/2014. cc: Phernetton (tc)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ERIC PHERNETTON,

)
)
)
)
)
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)
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Plaintiff,
v.
McDONALD’S
Defendant.

Case No. 2:13-cv-00487-APR

OPINION AND ORDER
The matter is before the court on the Motion for Relief and Response to Motion by
Defendant [DE 25]filed by the pro se plaintiff, Eric J. Phernetton, on April 14, 2014; the Motion
of Response to Defendant Counsel [DE 33] filed by Phernetton on May 7, 2014; the Motion to
Compel [DE 35] filed by the defendant, Lowell, Inc. (incorrectly sued as McDonald’s) on May
12, 2014; the Motion to Strike Certain of Plaintiff’s Filings [DE 36] filed by Lowell on May 12,
2014; the Motion to Deem Defendant’s Request to Admit as Admitted Against Plaintiff [DE 37]
filed by Lowell on May 12, 2014; the Motion for Continuance and Medical Reports [DE 39]
filed by Phernetton on May 16, 2014; the Motion for Cease and Desist and Contempt [DE 43]
filed by Phernetton on June 2, 2014; the Motion to Appoint Legal Counsel [DE 45] filed by
Phernetton on June 4, 2014; the Motion of Notification [DE 48] filed by Phernetton on July 7,
2014; the Motion to Continue [DE 50] filed by Phernetton on July 23, 2014; and the Motion to
Overrule Defense Objection [DE 53] filed by Phernetton on July 30, 2014.
For the following reasons, the Plaintiff’s Motion for Relief and Response to Motion by
Defendant [DE 25] is DENIED; the Motion of Response to Defendant Counsel [DE 33] is

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STRICKEN; the Defendant’s Motion to Compel [DE 35] is GRANTED; the Motion to Strike
Certain of Plaintiff’s Filings [DE 36] is GRANTED IN PART and DENIED IN PART; the
Defendant’s Motion to Deem Defendant’s Request to Admit as Admitted Against Plaintiff [DE
37] is DENIED; the Motion for Continuance and Medical Reports [DE 39] is STRICKEN; the
Motion for Cease and Desist and Contempt [DE 43] is DENIED; the Motion to Appoint Legal
Counsel [DE 45] is DENIED; the Motion of Notification [DE 48] is STRICKEN; and the
Motion to Continue [DE 50] is DENIED. The court STRIKES DE 3-5, 14, 20. The court
DIRECTS the clerk to amend the docket to show that the Motion to Overrule Defense Objection
[DE 53] is a response brief.
Background
On December 27, 2013, the pro se plaintiff, Eric Phernetton, filed a complaint alleging
that the defendant, Lowell, Inc. (incorrectly sued as “McDonald’s”), discriminated against him in
violation of Title VII and the Americans with Disabilities Act. Lowell filed its answer to
Phernetton’s complaint on February 28, 2014. Phernetton replied to the Answer on March 31,
2014. On March 25, 2014, Lowell’s counsel, Jason D. Keck, attempted to speak with Phernetton
regarding the parties’ Federal Rules of Civil Procedure 26(f) report. Phernetton refused to
respond substantively to Keck. On March 28, 2014, Lowell filed its proposed scheduling order.
Phernetton later submitted a response to Lowell’s Rule 26(f) report.
On April 1, 2014, Lowell served its First Set of Interrogatories, First Set of Requests to
Admit, and First Set of Production Requests upon Phernetton. Lowell filed the discovery
requests with the court on April 9, 2014. Also on April 9, Phernetton filed a “Response to
Admit” in which he stated that he would “give some of a little of answer” to Lowell’s Request to

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Admit. See DE 22. Phernetton admitted to Lowell (McDonald’s) being his only place of
employment during the specified time frame. Phernetton further stated that he elected not to be
deposed. Phernetton filed several other documents with the court, stating that he would not
respond to Lowell’s discovery requests or submit to a deposition because he was prohibited
under the Health Insurance Portability and Accountability Act (HIPAA), the Social Security Act,
the Constitution, and federal tax laws. He also claimed that he would commit perjury if he was
required to submit to a deposition.
Phernetton’s responses to the First Set of Interrogatories, First Set of Requests to Admit,
and First Set of Production Requests were due on or before May 1, 2014. As a follow-up, on
May 2, 2014, Keck emailed Phernetton to inquire about the status of his discovery responses.
Phernetton responded to the email from Keck stating that he was “prohibited to answer by both
State and Federal law.” On May 12, 2014, Lowell filed a Motion to Compel, a Motion to Strike
Certain of Plaintiff’s Filings, and a Motion to Deem Defendant’s Requests to Admit as Admitted
Against Plaintiff. Lowell asks to strike several documents labeled as docket statements,
Phernetton’s response to its Rule 26(f) report, Phernetton’s response to its answer, several
motions Phernetton filed that the court already has denied, and Phernetton’s response to its
Request to Admit. See DE 3-5, 14, 20, 22, 23, 29-33.
Phernetton also has filed several motions. On May 16, 2014, Phernetton filed a Motion
for Continuance and Medical Reports. In it, Phernetton repeated his reasons for failing to submit
to a deposition. A few weeks later he filed a “Motion for cease & assist order and contempt”,
stating that Keck should be held in contempt because he continued to e-mail Phernetton despite
the court’s directive to send filings by postal mail. Phernetton again stated that he was

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prohibited from participating in discovery and that he was invoking his constitutional right to
have counsel. He later filed a separate motion requesting counsel.
Phernetton filed a “Motion of Notification” on July 7, 2014, stating that Keck has not
produced copies of records that he requested two months ago. Most recently, Phernetton filed a
Motion for Continuance. In it, he asked that the date for his deposition, August 6, 2014, be
continued because he had an appointment with the state of Indiana. Phernetton has requested a
continuance of his deposition twice before. Lowell filed a response objecting to the continuance,
and Phernetton filed a motion to overrule the objection. The court will now address these
motions in turn.
Discussion
Lowell first moves to strike several of Phernetton’s filings. Motions to strike are
generally disfavored, although they may be granted if they remove unnecessary clutter from a
case and expedite matters, rather than delay them. Heller Financial, Inc. v. Midwhey Powder
Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade School, 552 F. Supp. 2d
816, 825 (C.D. Ill. 2008). The decision whether to strike material is within the discretion of the
court. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).
Lowell argues that many of Phernetton’s filings do not request any relief, cannot be
construed as motions, and serve no purpose. Federal Rules of Civil Procedure 7 states:
Motions and Other Papers.
(1) In General. A request for a court order must be made by motion. The motion
must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.

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Motions must include support and request some cognizable relief so that they may be ruled upon
by the court. Sabbia v. Comm'r of Soc. Sec. Admin., 669 F. Supp. 2d 914, 920 (N.D. Ill. 2009)
(“Even pro se litigants . . . must expect to file a legal argument and some supporting authority.
A litigant who fails to press a point by supporting it with pertinent authority, or by showing why
it is sound despite a lack of supporting authority . . . forfeits the point. We will not do his
research for him.”) (quoting Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.
1998)).
Phernetton filed several documents entitled “Docket Statement”. See DE 3, 5, and 14. In
Docket Entry 3, Phernetton gave his rendition of the facts and his past interactions with Lowell.
The “Docket Statement” did not state with particularity the grounds for seeking an order, nor did
it state the relief sought. Because the document did not request any type of relief, the court will
not construe it as a motion. Only pleadings, motions, supporting memoranda or responses, and
discovery requests and responses should be filed. Phernetton’s Docket Statement is none of
these and therefore is STRICKEN.
Similarly, Phernetton filed a Docket Statement on January 3, 2014, and another on
January 10, 2014, that again failed to request any relief. In both, he discussed things that have
occurred in conjunction with his Social Security claim and interactions he has had with Lowell.
Phernetton has informed the court that he had a disability hearing and that Lowell refused to turn
over his employee file. He summarized the testimony at the hearing and stated his objections.
He also attached several exhibits, many of which were related to his Social Security claim.
Phernetton did not ask this court to take any action, and even if the court construed this filing as
a motion to compel production of his employee report, this was not the appropriate forum to

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enforce discovery in his Social Security case. The Social Security proceedings are separate and
distinct from this matter. If Phernetton desires to review his employee file for use in this matter,
he must serve a Request for Production of Documents on Lowell and file it with this court. See
Rule 34 (explaining the procedure for requesting production of documents); Northern District
of Indiana Local Rule 26-2 (explaining that all discovery material must be filed in cases
involving a pro se party). If Lowell then refuses to turn it over, Phernetton then may file a
motion to compel after he has attempted to resolve the dispute amicably with Lowell. See
Federal Rule of Civil Procedure 26 & 37; Northern District of Indiana Local Rule 37-1.
The court will then consider whether discovery of his employee file is relevant to this matter and
subject to discovery in light of any objections Lowell may raise. Because Phernetton has failed
to request any cognizable relief, the court will not construe these “docket statements” as motions.
The court GRANTS Lowell’s motion to strike DE 4 & 5.
Phernetton’s Docket Statement [DE 14] does request some relief in that he asks for a
court appointed attorney. Phernetton also filed a separate motion for a court appointed attorney,
and this request is duplicative. See DE 45.
In this same docket statement, Phernetton has accused Keck of perjury and lying to the
court. To the extent Phernetton is seeking sanctions, this is unfounded. Phernetton based his
accusations on Keck’s statement that Phernetton was not represented by an attorney. However,
Keck was correct that Phernetton was not represented by an attorney in this matter. No attorney
has entered an appearance on his behalf, and Phernetton has acknowledged as much by
requesting that the court appoint an attorney to represent him.
Phernetton also has stated that Keck has refused to prove the Medicare lien. It appears

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that the parties may have reached a tentative settlement agreement in one of Phernetton’s other
cases pending against Lowell that is dependent on whether Medicare has a lien. This is beyond
the scope of this litigation. Even assuming that the parties discussed a settlement on
Phernetton’s discrimination claims in this matter, the court cannot compel Lowell to settle the
claim. It is within Lowell’s discretion to deny settlement and put off discovery of any potential
lien. The court will not interfere until Phernetton proves his claim, either through summary
judgment or at trial, and obtains a judgment against Lowell. The parties are still in the discovery
phase and neither must “prove” anything at this stage. Phernetton’s Docket Statement [DE 14]
requests no viable relief and has no probative value, and therefore is STRICKEN.
Phernetton’s Docket Statement [DE 20] appears to be a response to Lowell’s Federal
Rules of Civil Procedure 26(f) report. The purpose of this report is to propose case management
deadlines for the court to consider at the Rule 16 scheduling conference. The report is to be
completed together by the parties. The attachments show that Keck advised Phernetton as to
how a Report of Parties Planning Meeting was to be conducted and suggested dates. Phernetton
replied that Keck should not contact him and that all correspondence should be sent to Bruce
Carr, his attorney. Carr has not entered an appearance and is not representing Phernetton in this
matter. The Docket Statement attachments also show that Phernetton threatened to call the police
on Keck for “cybertrespass” for sending email attachments as a courtesy to Phernetton.
Phernetton should have corresponded with Keck, and he is advised that it is appropriate for Keck
to contact him in the future because he is unrepresented. In any case, it was unnecessary to
respond to the Rule 26(f) report, Phernetton did not respond to the proposed dates, and the court
already has set deadlines. Because it has no probative value, the court STRIKES DE 20.

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Lowell also moves to strike Phernetton’s Response to Admit [DE 22] and Response to
Deposition and Admit [DE 23]. In these documents, Phernetton stated the reasons why he
believed that he couldnot submit to a deposition and stated that he would answer some of
Lowell’s requests for admissions. Phernetton then stated only that he was employed by
McDonald’s. Although Phernetton’s excuses for complying with discovery were invalid, as will
be discussed in conjunction with Lowell’s motion to compel, these document did have some
probative value in that they served as responses to Lowell’s discovery requests. Therefore, the
court DENIES Lowell’s motion to strike DE 22-23.
Lowell next moves to strike Phernetton’s Motion of Doctor Statements [DE 29], Motion
of Conflict of Interest [DE 30], and Motion of Additional Plaintiffs and Legal Proceedings [DE
31]. However, the court already has ruled on and denied these motions. The court DENIES
Lowell’s request to strike these documents.
On May 6, 2014, Phernetton filed a “Response to Motion and Request of Copies”. In it,
Phernetton first responded to Lowell’s Rule 26(a) initial disclosures. Rule 26(a) initial
disclosures simply serve to put the opposing side on notice of the potential witnesses and
evidence, and it does not warrant a response.
Phernetton then complains that Lowell has not produced his employee record in
conjunction with his Social Security and Workers’ Compensation claims, and he asks the court
to advise Lowell that he needs a printout of his scheduled work hours. It is not clear from
Phernetton’s filing whether he made a formal request in this matter from Lowell to produce the
documents sought, and a review of the docket does not does not show that such a request was
made. As explained above, Phernetton must make a formal request for production of documents,

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attempt to resolve any disputes with Lowell, and then may file a motion to compel if Lowell
refuses to turnover documents that are relevant to this matter and not Phernetton’s other pending
cases. To the extent Phernetton intended for this document to be a motion to compel, he has not
complied with Federal Rule of Civil Procedure 26 or 37, and the court STRIKES DE 32.
Lowell also requests that the court strike the “Motion of Response to Defendant Counsel”
[DE 33]. This document also appears to be in response to Lowell’s initial disclosures.
Phernetton again stated the reasons he believed he could not comply with discovery and failed to
request any relief. This motion fails to comply with Rule 7, and is STRICKEN.
The court sua sponte STRIKES the Motion for Continuance and Medical Reports [DE
39] and Phernetton’s Motion of Notification [DE 48]. In the first, Phernetton recited his same
excuses for failing to comply with discovery and requested no relief, and in the later he stated
that there were offices investigating the court’s prejudice against him. Neither document
requested relief nor complies with Rule 7.
Lowell also filed a Motion to Compel [DE 35], asking the court to direct Phernetton to
provide his initial disclosures and tender responses to the Defendant’s First Set of
Interrogatories, First Set of Production Requests, and First Set of Requests to Admit. A party
may “obtain discovery regarding any matter, not privileged, that is relevant to the claim or
defense of any party, including the existence, description, nature, custody, condition and location
of any books, documents, or other tangible things.” Federal Rule of Civil Procedure 26(b)(1).
For discovery purposes, relevancy is construed broadly to encompass “any matter that bears on,
or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in
the case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002)(quoting

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Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L.Ed.2d 253
(1978)). Even when information is not directly related to the claims or defenses identified in the
pleadings, the information still may be relevant to the broader subject matter at hand and meet
the rule’s good cause standard. Borom v. Town of Merrillville, 2009 WL 1617085, *1 (N.D.
Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502
(S.D. Ind. 2003)); see also Adams v. Target, 2001 WL 987853, *1 (S.D. Ind. July 30,
2001)(“For good cause, the court may order discovery of any matter relevant to the subject
matter involved in the action.”); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)(“Discovery is a search for the truth.”).
A party may seek an order to compel discovery when an opposing party fails to respond
to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)-(3). The burden “rests upon the objecting party to show why a particular
discovery request is improper.” Gregg v. Local 305 Ibew, 2009 WL 1325103, *8 (N.D. Ind.
May 13, 2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 44950 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May
13, 2009)(internal citations omitted); Carlson Restaurants Worldwide, Inc. v. Hammond
Professional Cleaning Services, 2009 WL 692224, *5 (N.D. Ind. March 12, 2009)(internal
citations omitted). The objecting party must show with specificity that the request is improper.
Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009)(citing Graham v.
Casey’s General Stores, 206 F.R.D. 253, 254 (S.D. Ind. 2002)). That burden cannot be met by
“a reflexive invocation of the same baseless, often abused litany that the requested discovery is
vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably

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calculated to lead to the discovery of admissible evidence.” Cunningham, 255 F.R.D. at 478
(citing Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, *6 (N.D. Ill. Aug. 2,
2006))(internal quotations and citations omitted). Rather, the court, under its broad discretion,
considers “the totality of the circumstances, weighing the value of material sought against the
burden of providing it, and taking into account society’s interest in furthering the truth-seeking
function in the particular case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510,
512 (N.D. Ind. 2007)(examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th
Cir. 2002))(internal quotations and citations omitted). See also Hunt v. DaVita, Inc., 680 F.3d
775, 780 (7th Cir. 2012)(explaining that the district court has broad discretion in supervising
discovery).
Both in his response to Lowell’s motion to compel and in many of his other filings,
Phernetton has raised numerous objections to Lowell’s discovery requests. Phernetton first
claimed that he did not need to respond to Lowell’s discovery requests because he was
prohibited from doing so under the Social Security Act. Phernetton does have a Social Security
case pending, but that in no way absolves him of his duty to comply with discovery in this
matter. The Social Security Act provides benefits for disability and has no bearing on his claim
for discrimination. The Federal Rules of Civil Procedure permit discovery of all information that
is likely to lead to relevant, admissible evidence and that is not subject to a privilege, such as the
attorney-client privilege. The Social Security Act creates no such privilege.
To the extent Phernetton is seeking to keep his medical records from being made part of
this record, he may request that they be kept under seal by filing a protective order, but in any
case, he must respond to the discovery requests and turnover the requested information to

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defense counsel. Phernetton has injected his health into this case by the issues he raised, namely
his claim under the American’s with Disabilities Act, and the defendants are entitled to review
his medical records.
Likewise, Phernetton claims that he cannot respond to the discovery requests because of
his ongoing Workers’ Compensation claim. The Indiana Worker’s Compensation Act “provides
the exclusive remedy against employers for employees who suffer injuries arising out of and in
the course of employment.” Ind. Code § 22–3–2–6. See also Ebea v. G & H Diversified, 606 F.
Supp. 2d 916, 921 (S.D. Ind. 2009). This matter involves Phernetton’s claims for discrimination
under Title VII and the ADA and is distinct from his Workers’ Compensation claim. If it was
not, the court would lack jurisdiction. Like the Social Security Act, the Indiana Workers’
Compensation Act does not create a privilege and does not negate his duty to comply with the
federal rules of discovery and to respond to Lowell’s discovery requests. Rather, he must
respond to all non-privileged, relevant discovery requests or risk sanctions. See Federal Rule of
Civil Procedure 37.
Phernetton also claims that he is absolved from responding to the discovery requests
because they violate the Health Insurance Portability and Accountability Act (HIPAA). HIPAA
also does not apply to this case. “The HIPAA provisions do not create a privilege against
production or admission of evidence; they merely create a procedure for obtaining protected
medical record in litigation.” U.S. ex rel. Camillo, 233 F.R.D. at 522. (citing Northwestern
Memorial Hospital v. Ashcroft, 362 F.3d 923, 925–926 (7th Cir. 2004); see also Federal Rules
of Evidence 501). HIPAA prevents medical providers from turning over medical records but
does not stop Phernetton from doing so. In fact, Phernetton must turn them over because he has

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injected his medical condition as an issue in this case. Again, Phernetton’s medical records may
be kept under seal on the court’s docket, but he must provide them to defense counsel.
Phernetton also complains that Lowell first must prove that there is a Medicare lien
before he must comply with discovery. As explained above, Lowell does not need to prove that
there is a lien for multiple reasons. First, this case only is in the discovery stage, and it is at this
stage that parties are to gather evidence to support their positions. Neither party must prove any
part of its claim or defense at this stage. Second, the lien is not relevant. Before the lien would
become a concern in this matter, Phernetton must establish that he was discriminated against and
obtain a judgment against Lowell. Phernetton claims that Lowell previously agreed to settle.
The court is not certain whether Phernetton is claiming that Lowell intended to settle this matter
or another one of his pending cases. The court cannot compel Lowell to produce something
related to another matter. Even if the parties did discuss settlement on the claims raised in this
case, the court cannot compel Lowell to settle. It is within Lowell’s discretion to decline to
settle until it is able to resolve whether Medicare does have a lien. In any case, the lien does not
bear on Phernetton’s duty to participate in discovery of his substantive claims for discrimination.
Phernetton also asserts that Lowell’s other discovery requests have been responded to
and are exhibits on the court’s docket. However, his responses are not complete. For example,
Phernetton responded in Docket Statement [DE 22] that McDonald’s was his only place of
employment during the time period in which Lowell requested, but he did not respond to the
other requests for admission. This is not sufficient. Phernetton must respond to every discovery
request, either with a substantive answer or a valid objection. (Phernetton is reminded that the
Social Security Act, Constitution, Workers’ Compensation Act, and Medicare lien are not valid

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objections.) It also must be clear from his response which discovery request he is responding to
and which discovery requests the documents he provides are responsive of.
Phernetton’s responses are overdue, and he has not provided a valid explanation for his
failure to respond. Discovery is not optional. Phernetton has not satisfied his burden to show
why Lowell’s discovery requests are improper. Phernetton must provide his responses to
Lowell’s Requests to Admit, Interrogatories, and Request for Production within 14 days.
Phernetton is advised that failing to comply with discovery may result in sanctions. See Federal
Rule of Civil Procedure 37 (explaining the possible sanctions for failing to comply with
discovery).
Lowell also asks the court to compel Phernetton to provide his Initial Disclosures. Rule
26(A)(1) states that
a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual
likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment;
(ii) a copy—or a description by category and location—of all documents,
electronically stored information, and tangible things that the disclosing party has
in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing
party—who must also make available for inspection and copying
as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature
and extent of injuries suffered;
Phernetton has not provided Lowell with his initial disclosures as required by Rule 26(a)
and has not provided a valid explanation. Phernetton is DIRECTED to file with this court and

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provide Lowell with his initial disclosures setting forth the information stated above within 14
days of this Order.
Lowell asks the court to consider the statements contained in its request for admissions as
admitted because Phernetton did not respond timely. Federal Rule of Civil Procedure 36(a)(3)
states:
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
addressed to the matter and signed by the party or its attorney. A shorter or longer
time for responding may be stipulated to under Rule 29 or be ordered by the
court.
Rule 36 does not provide any exceptions for failing to provide answers. Pro se litigants are not
exempted from complying with the rules, and Phernetton has not provided any explanation for
his failure to respond. However, in light of his attempt to respond to some of the admissions and
his misunderstanding of his obligation to participate in discovery, the court DENIES Lowell’s
motion. Phernetton is DIRECTED to provide answers to Lowell’s Request to Admit within 14
days and is WARNED that failure to respond will result in the statements being deemed
admitted.
Lowell has requested its costs and fees associated with bringing this motion. Federal
Rules of Civil Procedure 37 (a)(5)(A) states:
If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the
motion is granted--or if the disclosure or requested discovery is provided after the
motion was filed--the court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees. But the court must not order this
payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
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(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
In this case, assigning costs and fees to Phernetton would be unjust. He is acting pro se, and as
such, he is unfamiliar with the rules of procedure. Phernetton misunderstood his obligations. He
now has been advised of his obligation to comply with discovery and the fact that he is not
relieved of his obligation to participate in discovery because of his other pending litigation or
any other federal or state law. Any future misconduct necessitating a motion to compel may
result in a sanction as the court sees appropriate.
Phernetton also filed a “Motion for relief & response to motion by defendant” [DE 25].
In it, he stated that he is asking for relief under Trial Rule 56(a) and stated the damages he was
seeking. Federal Rule of Civil Procedure 56(a) states that a party may move for summary
judgment and obtain a judgment in his favor if that party is able to show that there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Beyond stating that he is seeking judgment and stating his damages, Phernetton has not shown
how Lowell has violated either the ADA or Title VII. To do so, Phernetton would need to
explain the acts Lowell took to discriminate against him in his employment and would need to
attach evidence to establish that Lowell did in fact behave as he claims. Absent such evidence,
Phernetton’s motion [DE 25] is DENIED.
Phernetton also filed a document entitled “Motion for cease & assist order and contempt”
[DE 43]. Phernetton first informed the court that Keck continued to e-mail him despite being
instructed by the court to send documents via postal mail. Keck was sending the documents both
by e-mail and postal mail as a courtesy to Phernetton, but he has agreed to quit sending the

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courtesy e-mail.
In this same document, Phernetton asks the court to compel Lowell to prove that there is
a Medicare lien, but as explained above, Lowell is not required to do so.
Finally, Phernetton states that Lowell has not provided him with forms, documents, and
paperwork that he requested at the beginning of the month. It is not clear what documents
Phernetton is referring to. If he would like to conduct discovery, he must make a formal request
for production of documents to Lowell and file the same with this court. If Lowell does not
respond within the time frame permitted by Federal Rule of Civil Procedure 34, Phernetton then
may move to compel production, identifying the specific documents he seeks. For these reasons,
Phernetton’s motion [DE 43] is DENIED.
The court will now discuss Phernetton’s request for counsel. A party has no
constitutional or statutory right to counsel in this civil case. See Brown v. United States, 74 Fed.
Appx. 611, 614 (7th Cir. 2003); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995) (citing
Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992)). However, 28 U.S.C.'
1915(e) provides
The court may request an attorney to represent any person unable
to afford counsel...[and] shall dismiss the case at any time if the
court determines that: the allegation of poverty is untrue; or the
action or appeal is frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against a
defendant who is immune from such relief.
The decision of a district court to appoint counsel is reviewed for an abuse of discretion. Weiss
v. Cooley, 230 F.3d 1027, 1034 (7th Cir. 2000); Jackson, 953 F.2d at 1071-1072. The court
abuses its discretion if "[d]enying a request for counsel . . . 'would result in fundamental
unfairness infringing on due process rights.'" Gil v. Reed, 381 F.3d 649, 657 (7th Cir. 2004)
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(quoting Jackson, 953 F.2d at 1071-72).
In determining whether counsel should be appointed, the court must consider: “(1) has
the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded
from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent
to litigate it himself.” Pruitt, 503 F.3d at 654-55 (citing Farmer v. Haas, 990 F.2d 319, 321-22
(7th Cir. 1993)). See also Gruenberg v. Kingsland, No. 13-1218, 530 Fed. Appx. 583, 584 (7th
Cir. 2013) (explaining that the court only had to consider whether, given the complexity of the
issues, the plaintiff was competent to litigate the case).
Here, Phernetton has not provided a list of law firms which he has contacted in an
attempt to obtain counsel himself. Phernetton’s motion can be denied on those facts alone.
However, even if he was able to satisfy the first prong, the court’s inquiry proceeds to the second
prong, which has been clarified:

The decision whether to recruit pro bono counsel is grounded in a twofold inquiry into both the difficulty of the plaintiff’s claims and the
plaintiff’s competence to litigate those claims himself. The inquiries are
necessarily intertwined; the difficulty of the case is considered against the
plaintiff’s litigation capabilities, and those capabilities are examined in
light of the challenges specific to the case at hand. The question is not
whether a lawyer would present the case more effectively than the pro se
plaintiff[.] . . . Rather the question is whether the difficulty of the case
factually and legally exceeds the particular plaintiff’s capacity as a
layperson to coherently present it to the judge or jury himself.
Pruitt, 503 F.3d at 655 (internal footnote, quotation, and citation omitted). See also Gruenberg,
No. 13-1218, 530 Fed. Appx. at 584. The court may take into consideration “the plaintiff’s
literacy, communication skills, educational level, and litigation experience” as well as other
relevant and practical information such as “intellectual capacity and psychological history.”

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Pruitt, 503 F.3d at 655. Any evidence given in support of the request for counsel, as well as
that gleaned from the available pleadings and other case communication at the time, should be
reviewed and considered. Pruitt, 503 F.3d at 655.
Here, the docket reflects that Phernetton is literate and coherent. His handwritten
complaint and motions are legible and understandable. The nature of the claims put forth are
simple and straightforward: It is clear that Phernetton is alleging Title VII and American’s with
Disabilities Act violation. The court finds that he is not entitled to an appointed counsel.
On July 23, 2014, Phernetton filed a motion asking the court to continue the date on
which Lowell scheduled his deposition because he had an appointment with the State of Indiana.
Phernetton has requested three prior continuances. In many of his filings, Phernetton stated that
he could not submit to a deposition because he would not commit perjury and that he was
protected under the ADA, HIPAA, Social Security Act, and the Fifth Amendment of the United
States Constitution. To the extent Phernetton is seeking a protective order from participating in
a deposition, his request is unfounded. The court already has explained that Phernetton’s
extrinsic ongoing claims against Lowell do not negate his duty to participate in discovery in this
matter. The Social Security Act, Indiana Workers’ Compensation Act, and HIPAA do not
exempt him from his obligation to participate in discovery in this matter. Moreover, discovery is
part of every case raised under the American’s with Disabilities Act. Defendants are entitled to
discover information so that they may defend claims filed against them. If Phernetton needs
some accommodations during his deposition due to his medical conditions, such as additional
breaks, such can be arranged with defense counsel.
Turning to Phernetton’s claim that he has a right to counsel under the Constitution before

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submitting to a deposition, the right to counsel only attaches in criminal cases. As explained
above, Phernetton is not entitled to counsel in this case. Phernetton’s other repeated excuse is
that he will not submit to a deposition because he will not commit perjury. Phernetton only
would commit perjury if he were to lie during his deposition. Federal Rule of Civil Procedure 30
allows parties to conduct depositions as one method of discovery. Phernetton cannot avoid the
deposition because he fears that he will commit perjury. Phernetton must submit to a deposition
and give truthful statements.
Lowell served Phernetton a notice stating that the deposition would take place on August
6, 2014. If Phernetton did not submit to the deposition on this date, he is DIRECTED that he
must submit to a deposition by September 22, 2014, as will be arranged by Lowell. Phernetton
is again ADVISED that failure to comply may result in sanctions. See Federal Rule of Civil
Procedure 37.
Phernetton also filed a separate motion to overrule Lowell’s objection. The court
construes this as a reply to his motion to continue and DIRECTS the clerk to amend the docket
to reflect as much.
Based on the foregoing reasons, the Plaintiff’s Motion for Relief and Response to Motion
by Defendant [DE 25] is DENIED; the Motion of Response to Defendant Counsel [DE 33] is
STRICKEN; the Defendant’s Motion to Compel [DE 35] is GRANTED; the Motion to Strike
Certain of Plaintiff’s Filings [DE 36] is GRANTED IN PART and DENIED IN PART; the
Defendant’s Motion to Deem Defendant’s Request to Admit as Admitted Against Plaintiff [DE
37] is DENIED; the Motion for Continuance and Medical Reports [DE 39] is STRICKEN; the
Motion for Cease and Desist and Contempt [DE 43] is DENIED; the Motion to Appoint Legal

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Counsel [DE 45] is DENIED; the Motion of Notification [DE 48] is STRICKEN; and the
Motion to Continue [DE 50] is DENIED. The court STRIKES DE 3-5, 14, 20. The court
DIRECTS the clerk to amend the docket to show that the Motion to Overrule Defense Objection
[DE 53] is a response brief.
ENTERED this 12th day of August, 2014

/s/ Andrew P. Rodovich
United States Magistrate Judge

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