LITTLER et al v. LEMMON et al

Filing 110

ENTRY Discussing Plaintiff's Motion to Compel - Therefore, pursuant to the authority set forth in 28 U.S.C. § 1915A, the Court dismisses the individual capacity claims against Bruce Lemmon and Richard Brown for failure to state a clai m. Mr. Littler's motion to compel Bruce Lemmon to respond to 80 , is denied. The clerk is instructed to update the docket to reflect that Richard Brown and Bruce Lemmon have been dismissed from this action (SEE ENTRY). Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 9/20/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
PHILLIP LITTLER,

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Plaintiff,
vs.
JEAN WATKINS, ROBERT CARTER,
RICHARD BROWN,
Defendants.

Entry Discussing Plaintiff’s Motion to Compel
Plaintiff Phillip Littler has filed a motion to compel, Dkt. No. 80, asserting that the
defendants’ responses to his discovery requests were late and inadequate. The defendants
responded to the plaintiff’s motion to compel arguing that, to the extent possible, they responded
sufficiently to the petitioner’s discovery requests.
The parties are reminded that the overall purpose of discovery under the Federal Rules of
Civil Procedure is to require the disclosure of all relevant information so that the ultimate
resolution of disputed issues in any civil action may be based on a full and accurate understanding
of the true facts, and therefore embody a fair and just result. See United States v. Procter & Gamble
Co., 356 U.S. 677, 682 (1958); see also Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995)
(“wide access to relevant facts serves the integrity and fairness of the judicial process by promoting
the search for the truth”). Discovery in civil litigation is intended to be an essentially cooperative,
self-regulating process for which the parties would take responsibility, with little judicial
intervention required. See Edward D. Cavanagh, The August 1, 1983 Amendments to the Federal
Rules of Civil Procedure: A Critical Evaluation and a Proposal for More Effective Discovery
Through Local Rules, 30 Vill. L. Rev. 767, 775 & n.34 (1985). First, the defendants’ discovery

responded were not late. They sought and were granted two extensions of time to respond to
discovery. Dkt. Nos. 68, 74. As such, their responses were not late.
Second, Mr. Littler’s motion to compel, Dkt. No. 80, is denied consistent with the
following:
1.

In request number 1, Mr. Littler request the defendants’ policy regarding offender

correspondence (defendants’ response is included):

In his motion to compel, Mr. Littler states that he does not possess the signature page. Dkt.
No. 80, p. 3. The defendants respond to the motion by saying that policies do not require a signature
page. Dkt. No. 89, p. 6. The Court cannot compel the production of information that does not exist.
See Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 598 (E.D.Wis. 2004)
(“A party need not produce documents or tangible things that are not in existence or within its
control. It is sufficient that the discovered party respond by saying that a document or tangible
thing is not in existence.”). The defendants assert a signature page does not exist. This response is
sufficient. The motion to compel with respect to request for production number 1 is denied.
2. In request number 3, Mr. Littler requested from the defendants (defendants’ response is
included):

Dkt. No. 80-1, p. 8. The defendants responded to the motion to compel that the letters in
issue were destroyed. Again, the Court cannot compel the production of information that does not
exist. See Gateway Data Scis. Corp., 222 F.R.D. at 598 (“A party need not produce documents or
tangible things that are not in existence or within its control. It is sufficient that the discovered
party respond by saying that a document or tangible thing is not in existence.”). The defendants
assert the letters were destroyed. Dkt. No. 89, p. 4. This response is sufficient. The motion to
compel with respect to request for production number 3 is denied.
3. In request number 6, Mr. Littler requested from the defendants (defendants’ response is
included):

Dkt. No. 80-1, p. 9. In the motion to compel, Mr. Littler argues that a simple query of the
e-mail system would generate the e-mails he requests. He also argues that the e-mails are necessary
because “maybe it would show that the defendants themselves thought the policy potentially
violative of the 1st Amendment when plaintiff grieved the matter in this light.” Dkt. No. 80, p. 5.

The defendants responded to the motion to compel that there are approximately 5,900 Indiana
Department of Correction (“IDOC”) employees and that searching the employees emails to see if
any exist discussing this issue is overly burdensome. The Court finds that Mr. Littler’s request for
all the e-mails that may exist that reference the issues in this case that may show that IDOC
employees may have thought the mail policy violated the First Amendment is not relevant under
Rule 26 of the Federal Rules of Civil Procedure. What employees may have thought about the mail
policy does not determine the legal issue in this action. The motion to compel with respect to
request for production number 6 is denied.
4. In request number 7, Mr. Littler requested from defendants (defendants’ response is
included):

Dkt. No. 80-1, p. 10. The defendants responded by objecting because they argue the request
is overly broad. They state in the response to the motion to compel that there are no such entries
in the IDOC Offender Case Management System. As stated before, the Court cannot compel the
production of information that does not exist. See Gateway Data Scis. Corp., 222 F.R.D. at 598
(“A party need not produce documents or tangible things that are not in existence or within its
control. It is sufficient that the discovered party respond by saying that a document or tangible
thing is not in existence.”). Additionally, counsel for the defendants stated that she checked any
entries under Mr. Littler’s name in the IDOC Offender Case Management System and none of

them referred to the issue of this lawsuit. Dkt. No. 89, pp. 4-5. This response is sufficient. The
motion to compel with respect to request for production number 7 is denied.
5.

In request number 8, Mr. Littler requested from defendants (defendants’ response

is included):

Dkt. No. 80-1, pp. 10-11. The defendants responded by objecting because they argue the
request is overly broad. However, this case does not involve a claim related to Mr. Littler’s medical
care while an inmate confined at the IDOC. And as the defendants point out, Mr. Littler is able to
obtain this information in the form of a non-party request directed to Corizon, as the IDOC is not
the keeper of these records. The motion to compel with respect to request for production number
8 is denied.
Finally, in the motion to reconsider filed by Mr. Littler on June 27, 2016, he sought to add
Bruce Lemmon and Richard Brown in their individual capacities because they “individually

instituted policies which, upon their face, would blatantly violate the 1st Amendment and 4th
Amendment rights . . . .” Dkt. No. 21. The Court permitted Mr. Littler to add these defendants in
an individual capacity claim. Dkt. No. 22.
On April 13, 2017, the Court instructed Mr. Littler to restate a valid legal basis from which
former Commissioner Bruce Lemmon could be found liable in so far as a suit against him in his
individual capacity. In his response to the Court’s order that he articulate a valid legal basis for his
claim against Bruce Lemmon and Richard Brown in their individual capacities, Mr. Littler argues
the purpose of the lawsuit is to determine Mr. Lemmon’s liability. He then states the following:

Dkt. No. 97, p. 4. Mr. Littler then described the “policy” prohibiting inmates from
communicating with individuals on probation as oppressive and tyrannical and that “Mr.

Lemmon authorized the blatantly unlawful policy that caused the violation of the plaintiff’s
rights. . . .” Dkt. No. 97, p. 8.
An official capacity suit is presumed only where the plaintiff challenges official policies
or customs. Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991). Individual capacity suits may
be presumed when a litigant challenges the individual actions of government employees. Id. Mr.
Littler’s motion for reconsideration and response to the Court’s April 13, 2017, entry, only
challenge the policy that prohibited Mr. Littler from receiving mail from his cousin, an individual
on probation. He sought injunctive relief in the form on an injunction ordering the termination of
the policy and damages for both pain and suffering and the destruction of his letters. Dkt. No. 1.
An official capacity claim against Bruce Lemmon and Richard Brown was previously
dismissed by this Court because of the inadequacy of Mr. Littler’s claim and not because he
challenged the mail policy as inadequate. Because Mr. Littler only challenges the existence and
application of the mail policy instituted by Bruce Lemmon in this action, this is an official capacity
claim. Mr. Littler has failed to adequately articulate a basis that would support a claim against
Bruce Lemmon or Richard Brown in their individual capacities. Mr. Littler seeks to sue Bruce
Lemmon and Richard Brown as the creator of the IDOC mail policy for enforcing the IDOC mail
policy - but in their individual capacity. This is not permitted because it would eviscerate the
distinction between individual capacity claims and official capacity claims. As stated above, Mr.
Littler has articulated his claim regarding the mail policy as an official capacity claim. The claims
against Jean Watkins in her official capacity for injunctive relief offers all the vindication he needs
to challenge the mail policy. Therefore, pursuant to the authority set forth in 28 U.S.C. § 1915A,
the Court dismisses the individual capacity claims against Bruce Lemmon and Richard Brown for

failure to state a claim. Mr. Littler’s motion to compel Bruce Lemmon to respond to discovery,
Dkt. No. 80, is denied.
The clerk is instructed to update the docket to reflect that Richard Brown and Bruce
Lemmon have been dismissed from this action.
IS IT SO ORDERED.
Date:9/20/17

_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

PHILLIP LITTLER
121098
WESTVILLE - CF
WESTVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
5501 South 1100 West
WESTVILLE, IN 46391
Electronically registered counsel