GRIFFITH v. A. DOWNEY et al

Filing 84

ORDER granting 71 Motion to Compel discovery. Defendants Phillips, Haskins, Drada, Yarber, Lyday, and Devine are ORDERED to provide complete and unequivocal responses to Plaintiff's First Request for Interrogatories No.'s 4-6 on or before October 2, 2018. Signed by Magistrate Judge Mark J. Dinsmore on 9/20/2018 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAMES F. GRIFFITH,

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Plaintiff,
v.
F. BRANNICK,
D. HASKINS,
YARBAR,
DEVINE,
E. DRADA,
N. LYDAY,
PHILLIPS,
Defendants.

No. 1:17-cv-00194-TWP-MJD

ORDER ON PLAINTIFF’S VERIFIED SECOND MOTION
TO COMPEL DISCOVERY
This matter is before the Court on Plaintiff’s Verified Second Motion to Compel
Discovery. [Dkt. 71.] For the reasons set forth below, the Court GRANTS Plaintiff’s motion.
I. Background
In this action, Plaintiff, a prisoner incarcerated at New Castle Correctional Facility,
brings excessive use of force claims against correctional officer Defendants that he asserts
occurred while he was housed at Wabash Valley Correctional Facility. [Dkt. 5 at 1.] Plaintiff
alleges Defendants dragged him to F cell house and carried him down the stairs out of the view
of cameras. [Dkt. 5 at 2.] While Plaintiff was handcuffed, he contends Defendants body
slammed, jumped on, and began beating him. [Dkt. 5 at 2.]

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On August 3, 2018 the Plaintiff filed a Verified Second Motion to Compel Discovery.
[See Dkt. 71.] In relevant part, the Plaintiff’s motion asks the Court to compel “defendants
Phillips, Haskins, Drada, Yarber, Lyday, and Devine to provide full and complete responses to
Interrogatories No.’s 4-6 from Plaintiff’s First Request for Interrogatories.” [Dkt. 71 at 1.]
Defendants responded to Interrogatories No.’s 4-6 from Plaintiff’s First Request for
Interrogatories for Phillips, Haskins, Drada, Yarber, Lyday, and Devine between May 4, 2018
and June 19, 2018 [See Dkt. 78-1.] Defendants filed these interrogatory responses with the
Court on August 31, 2018, pursuant to an Order to File Discovery Responses issued on August
30, 2018. [Dkt. 78 and Dkt. 77.]
Defendants Phillips, Haskins, Drada, Yarber, Lyday, and Devine all objected to
Interrogatories No.’s 4-6 stating the information requested by the Plaintiff was “irrelevant to the
issues in the complaint.” [Dkt. 78-1.] Plaintiff corresponded with Defendants’ counsel
informally to attempt to resolve the discovery dispute prior to filing his motion [Dkt. 71 at 2 and
Dkt. 71-1.] Defendants did not file a response in opposition to Plaintiff’s Verified Second
Motion to Compel Discovery; yet, in their notice of filing the answers to Plaintiff’s
interrogatories as directed by the Court [Dkt. 77], stated the “matters in interrogatory 4 are moot
as the court already ordered and the defendants produced all disciplinary documents from their
personnel files . . . [and] the matters in interrogatories 5 and 6 are inadmissible under Evidence
Rule 404(b), if they exist.” [See generally Dkt. and Dkt. 78 at 1.] Plaintiff maintains that his
request of the information sought in Interrogatories No.’s 4-6 is relevant as it pertains to his
claims of excessive force. [Dkt. 71].

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II. Legal Standard
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. Fed. R. Civ. P. 37(a)(2)(4) (2018). The burden “rests upon the objecting party to show why a particular discovery
request is improper.” Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 449–50
(N.D. Ill. 2006). The objecting party must show with specificity that the request is improper.
Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 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 calculated to lead to the discovery of admissible evidence.” Burkybile v. Mitsubishi
Motors, Corp., 2006 WL 2325506 at *6 (N.D. Ill. 2006) (internal citations omitted).
Under Federal Rule of Civil Procedure 26(b)(1), generally “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Relevancy is construed broadly
and encompasses “any matter that bears on, or reasonably could lead to other matter[s] that could
bear on, any issue that is or may be in the case.” Chavez v. Daimler Chrysler, 206 F.R.D. 615,
619 (S.D. Ind. 2002) (internal citations omitted). Relevant information does not need to be
“admissible to be discoverable.” Fed. R. Civ. P. 26(b)(1). The Court addresses the discovery
requests in turn.
III. Discussion
Defendants objected to all three interrogatories on the basis of relevance. [Dkt. 78-1.]
The burden of showing relevance rests with the Plaintiff. See Kodish, 235 F.R.D. at 449-50. “A
document filed pro se is ‘to be liberally construed’ and ‘a pro se complaint, however inartfully

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pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976); Haines v. Kerner, 404 U.S. 519, 520-21 (1972)); see also Fed. R. Civ. P. 8(e)
(“Pleadings must be construed so as to do justice.”). The Court may infer Plaintiff’s general
statements of the relevance of Interrogatories No.’s 4-6 suffice to be meet this liberal standard.
Interrogatory No. 4: Have any of the Defendants ever been disciplined for any
action they have taken while in the performance of their duties at [Wabash Valley
Correctional Facility] WVCF? What actions occurred and what disciplinary
actions were taken?
[Dkt. 71 at 1.]
In the Court’s previous Order on Plaintiff’s Motion to Compel [Dkt. 68], the
Plaintiff’s request for Defendants’ personnel files was granted. The Court reiterates that,
“It is well established that, in § 1983 cases involving allegations of police misconduct,
personnel files of the defendant officers are discoverable, as they may lead to evidence
admissible under Federal Rule of Evidence 404(b).” Clark v. Ruck, No. 13-cv-03747,
2014 WL 1477925, at *2 (N.D. Ill. Apr. 15, 2014) (citing cases). Likewise, Defendants’
answers to Plaintiff’s Interrogatory No. 4 regarding disciplinary actions during the course
of their employment duties at Wabash Valley Correctional Facility are relevant.
Defendants failed to file a response in opposition to Plaintiff’s motion, thereby waiving
any arguments in response to Plaintiff’s motion. See Alioto v. Town of Lisbon, 651 F.3d
715, 719 (7th Cir. 2011) (A party “waived his right to contest the dismissal by failing to
oppose the motions.”); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005) (Party’s claim
was waived when he “did not present legal arguments or cite relevant authority to
substantiate [his] claim in responding to defendants’ motion to dismiss . . . .”); S.D. Ind.

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L.R. 7-1(c)(5) (2018) (“The court may summarily rule on a motion if an opposing party
does not file a response within a deadline.”). Only now do Defendants belatedly claim
the request is moot based on the Court’s previous order and state all documents from
Defendants’ personnel files have been produced. [Dkt. 78 at 1.] The mere production of
personnel files does not in and of itself answer the Plaintiff’s Interrogatory No. 4. 1 The
Court additionally finds Defendants’ mootness argument invalid, as the production of the
personnel files does not provide a proper answer to Plaintiff’s Interrogatory No. 4 under
compliance with Federal Rule of Civil Procedure 33(d), as Defendants have not
“specif[ied] the records that must be reviewed, in sufficient detail to enable the
interrogating party to locate and identify them as readily as the responding party could.”
Fed. R. Civ. P. 33(d)(1).
Interrogatory No. 5: Have any of the Defendants ever been convicted, arrested, or
accused of a crime? If so, please give complete details of the incident(s).
Interrogatory No. 6: Have any of the Defendants, in their previous employment,
been disciplined, terminated, or investigated for misconduct? If so, provide the
details of the incident, including what employer, the act in question, the result of
the review of that action.
[Dkt. 71 at 1.]
Plaintiff states “intent is at the center of Plaintiff’s Eighth Amendment and punitive
damage claims in this case, and evidence of prior bad acts may be use to prove intent.” [Dkt. 71
at 1-2.] Plaintiff asserts Interrogatories No.’s 4-6 could illustrate intent and “may be used to

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For example, not all forms or incidents of disciplinary action during the course of one’s
employment may appear in an employee’s personnel file. Production of a personnel file alone
would only serve to answer an interrogatory asking if a personnel file exists; it is not a complete
and unequivocal response regarding the substantive content of the personnel file or disciplinary
action that may not have been included or has been removed from the personnel file.
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prove lack of accident or mistake,” as it applies to use of excessive force in his claim. [Dkt. 71
at 1-2.] To establish excessive use of force claims, “the plaintiff in such a case ‘must establish
that prison officials acted wantonly’” or “maliciously and sadistically for the very purpose of
causing harm.” Richman v. Sheahan, 512 F.3d 876, 881 (7th Cir. 2008); Hill v. Shelander, 992
F.2d 714, 718 (7th Cir. 1993). Plaintiff also asserts answers to Interrogatories No. 5 and 6,
regarding Defendants’ history of criminal or employment based misconduct, may lead to
impeachment information relevant to his case and may be relevant in assessing Defendants’
credibility. [Dkt. 71 at 2.]

As relevance is construed broadly, the Court finds prior criminal or

employment misconduct information is relevant, or may lead to relevant or impeachment
information, regarding Plaintiff’s excessive force claim. Moreover, it is clear that information
regarding disciplinary actions pursuant to Defendants’ employment at Wabash Valley
Correctional Facility is relevant; therefore, it would follow that Plaintiff’s request for
information surrounding discipline, termination, or investigation within Defendants’ previous
employment positions is also relevant.
Again, Defendants failed to file a response in opposition to Plaintiff’s motion to illustrate
why Interrogatories No.’s 5 and 6 are improper, thereby waiving any argument. Defendants
again belatedly claim the requests are barred by Evidence Rule 404(b). [Dkt. 78 at 1.]
Discovery of information, under Federal Rule of Civil Procedure 26(b), is not determinative
upon the question of admissibility of evidence; that which is inadmissible, is still discoverable
“unless otherwise limited” by the Court. Fed. R. Civ. P 26(b)(1). Defendants’ untimely
objection is unfounded.

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IV. Conclusion
Based on the foregoing, Plaintiff’s Verified Second Motion to Compel Discovery is
GRANTED. Defendants Phillips, Haskins, Drada, Yarber, Lyday, and Devine are ORDERED
to provide complete and unequivocal responses to Plaintiff’s First Request for Interrogatories
No.’s 4-6, on or before October 2, 2018.

Dated: 20 SEP 2018

Distribution:
JAMES F. GRIFFITH
117892
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
David A. Arthur
INDIANA ATTORNEY GENERAL
[e-mail]
Christine Potter Wolfe
INDIANA ATTORNEY GENERAL
[e-mail]

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