Bradford v. Owens et al
MEMORANDUM OPINION AND ORDER by Magistrate Judge Dave Whalin denying defendants joint 221 Motion for Leave to reopen discovery to depose plaintiff. cc: Counsel(MLG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:11CV-00488-DJH
BYRON A. BRADFORD
MARCIA SHROCK, et al.
Plaintiff Byron A. Bradford (“Bradford”) initiated this 42 U.S.C. § 1983 suit almost six
years ago while incarcerated at the Luther Luckett Correctional Complex in LaGrange, Kentucky.
(DN 1). Bradford has proceeded pro se for the entirety of the case. Presently before the Court is the
joint motion of Defendants Marcia Shrock, Rhonda Coleman, and Kristy Mullins seeking leave to
reopen discovery. (DN 221). Bradford has responded in opposition. (DN 226). Defendants have
filed replies. (DN 228; DN 229). For the reasons explained below, the Court denies Defendants’
Byron Bradford filed this action in November of 2011, asserting violations of the Eighth
Amendment against James McCoy, Karen Owens, Marcia Shrock, Doug Crall, and Correct
Care-Integrated Health Inc. (“CorrectCare”), and violations of the First Amendment against
Marcia Shrock, Kristy Mullins, and Rhonda Coleman. (DN 1, at ¶¶ 181-92). Bradford’s claims
stem from a left ankle injury he suffered while playing basketball at the Luther Luckett
Correctional Complex (“LLCC”), the institution where he was incarcerated at the time. (Id. at ¶¶ 3,
12). Bradford believes the medical staff at LLCC denied him adequate medical care after he
reported the injury and demonstrated “deliberate indifference” to his serious medical need. (Id. at
¶¶ 182-89). Because the medical staff allegedly failed to assess the seriousness of his condition,
Bradford feels his treatment was delayed and he now suffers from a permanent injury to his left
leg. Bradford additionally claims that certain Defendants retaliated against him for filing
grievances and open records requests relating to his medical treatment by issuing disciplinary
write-ups against him, placing him in the Special Management Unit at LLCC, and transferring him
to another facility. (Id. at ¶¶ 190-92).
In December of 2011, the Court entered a scheduling order, requiring the completion of
pretrial discovery no later than May 2, 2012, and the filing of dispositive motions by either party
no later than July 2, 2012. (DN 8). Three months later both parties moved to extend these deadlines
when Bradford sought leave to file a supplemental complaint and a temporary restraining order.
(DN24; DN 25; DN 29; DN 35). The Court granted the extension, pushing the completion of
discovery to no later than July 2, 2012, and the filing of dispositive motions to no later than August
31, 2012. (DN 40).
On June 19, 2012, the “CorrectCare” Defendants1 moved for summary judgment. (DN
56). While that motion was pending, the Court granted Bradford leave to file his proposed
1 The “CorrectCare Defendants” include Correct Care-Integrated Health Inc., Nurse Karen Owens, Nurse James
McCoy, Nurse Marcia Shrock, and Nurse Kristy Mullins. (DN 56-1, at p. 1). The other set of Defendants can be
collectively referred to as the “Kentucky Department of Correction (“KDOC”) Defendants,” which includes Rhonda
Coleman and Doug Crall.
supplemental complaint and amended complaint. (DN 89). As a result, the Court remanded the
CorrectCare Defendants’ summary judgment motion and, for the second time, amended the
scheduling order to postpone the completion of discovery to August 15, 2013, and the filing of
dispositive motions to October 16, 2013. (DN 93). Bradford’s amended complaint added a
conspiracy claim against Marcia Shrock and CorrectCare relating to his medical treatment (DN
94), while his supplemental complaint alleged that unspecified “Defendants” continued to provide
him with unconstitutional treatment after his Achilles tendon surgery (DN 94-1).
The CorrectCare Defendants renewed their motion for summary judgment on August 19,
2013. (DN 120). Bradford requested an extension for replying to the summary judgment motion
based on a number of outstanding discovery disputes between the parties. (DN 124). The Court
once again remanded the CorrectCare Defendants’ motion for summary judgment from the active
docket and further amended the scheduling deadlines to require completion of discovery by June
30, 2014, and the filing of dispositive motions by August 29, 2014. (DN 139; DN 140).
After waiting for the discovery deadline to pass, the CorrectCare Defendants again moved
to renew their motion for summary judgment (DN 156), and the KDOC Defendants moved for
summary judgment as well (DN 162). But because discovery matters between Bradford and the
KDOC Defendants were still being addressed by the Court, the Defendants’ motions were
overruled as premature. (DN 165). Once the discovery disputes were finally resolved in October of
2015, the Court entered a new scheduling order, adjusting the dispositive motion deadline to May
2, 2016. (DN 185).
Both the CorrectCare Defendants and KDOC Defendants once more renewed their
motions for summary judgment by the dispositive motion deadline. (DN 186; DN 187). Bradford
requested his response deadline be extended to July 1, 2016 (DN 188), which the Court granted
(DN 189). Bradford requested another response-deadline extension until July 20, 2016 (DN 191),
but before the Court could rule on such extension, Bradford filed his 91-page response brief. (DN
The District Judge issued a Memorandum Opinion and Order on November 29, 2016,
dismissing all of Bradford’s claims except his First Amendment retaliation claims against Marcia
Shrock, Kristy Mullins, and Rhonda Coleman. (DN 201). Almost three months later, the District
Judge issued an Order referring the case to the undersigned Magistrate Judge to conduct a status
conference for the purpose of setting a final litigation schedule. (DN 214). During such status
conference, the remaining Defendants expressed their desire to take additional discovery in the
case, including the deposition of Bradford. (DN 219). The Court, accordingly, allowed Defendants
30 days to file any motion relating to additional discovery and giving Bradford 30 days to respond
if such motion was filed. (DN 219).
Defendants filed the present motion to reopen discovery on May 30, 2017. (DN 221).
Before Bradford’s response time had expired, the remaining Defendants filed “Second Motions for
Summary Judgment.” (DN 222; DN 223). These motions essentially seek “revision” of the Court’s
earlier Memorandum Opinion and Order, which ruled judgement as a matter of law was not
appropriate as to Bradford’s First Amendment retaliation claims.
Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order “may be
modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). District courts
have “broad discretion under the rules of civil procedure” in managing the discovery process and
controlling their dockets. Marie v. Am. Red. Cross, 771 F.3d 344, 366 (6th Cir. 2014). The Sixth
Circuit has established a number of factors for district courts to consider when determining
whether good cause exists to modify a discovery schedule, including: “(1) when the moving party
learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling
below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5)
whether the adverse party was responsive to . . . prior discovery requests.” Carter v. City of
Detroit, No. 11-15322, 2015 WL 3678433, at *2 (E.D. Mich. June 12, 2015) (quoting Marie, 771
F.3d at 366) (quoting Bentowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2011). The
primary measure of these factors and the good cause standard, however, is “whether the moving
party was diligent in pursuing discovery.” Marie, 771 F.3d at 366; see also Inge v. Rock Financial
Corp., 281 F.3d 613, 625 (6th Cir. 2002) (the primary measure of Rule 16’s good cause standard is
“the moving party’s diligence in attempting to meet the case management order’s requirements.”).
Another relevant consideration in this analysis is any “possible prejudice to the party opposing the
modification” of the discovery schedule. Inge, 281 F.3d at 625 (citing Bradford v. DANA Corp.,
249 F.3d 807, 809 (8th Cir. 2001) (additional citation omitted)).
It appears that Defendants are only seeking to reopen discovery to take Bradford’s
deposition if the Court denies their pending “second motions for summary judgement.” (DN
221-1, at p. 6). Defendants identify three reasons supporting good cause for reopening discovery.
First, Defendants emphasize that the litigation thus far has focused largely upon Bradford’s
dismissed Eighth Amendment claims, rather than the remaining First Amendment retaliation
claims. (Id. at p. 6, 10). Second, Defendants assert that “[e]xtensions of the discovery deadline
have been a common occurrence in this action[,]” and such extensions were either at Bradford’s
request or brought as a result of his actions. (Id. at pp. 9-10). Defendants lastly argue that
permitting Bradford’s deposition would ultimately benefit the Court by streamlining the
presentation of the case at trial, considering Bradford’s pro se status. (Id. at p. 10). Defendants also
conclude that there is no justifiable basis on which Bradford can claim prejudice from the Court
permitting his deposition. (Id.).
In response, Bradford asserts that Defendants had the better part of four years to conduct
discovery on his First Amendment retaliation claims. (DN 226, at p. 1). According to Bradford, the
Defendants chose to conduct little to no discovery and filed for summary judgment, believing that
his First Amendment retaliation claims would be dismissed. (Id.). The Defendants’ deliberate
choice to focus the litigation on the Eighth Amendment claims, Bradford argues, is no excuse for
reopening discovery to now take his deposition. (Id.). Bradford additionally urges the Court to
deny Defendants “second motions for summary judgment,” which merely entertain the same
arguments the Court has previously rejected, and set the matter for trial. (Id. at p. 6).
The Defendants’ replies largely focus on the substantive merits of their “second motions
for summary judgment” and only briefly reference their earlier arguments for reopening discovery.
(DN 228, at pp. 1-2; DN 229, at pp. 8-9).
Defendants have failed to demonstrate good cause to warrant reopening discovery. Their
motion glaringly fails to cite to any case law or authority to support their arguments. Further,
Defendants put forth no evidence that they were diligent in pursuing Bradford’s deposition during
the allotted discovery period. See Carter, 2015 WL 3678433, at *2 (finding plaintiff’s failure to
establish good cause to reopen discovery where he was not diligent in pursuing deposition during
allotted discovery period and provided no justification for such failure). Defendants had nearly
four years to pursue Bradford’s deposition. But it is only now, nearly two years after the discovery
period ended,2 that Defendants submit Bradford’s deposition is necessary. The untimeliness of
Defendants’ request weighs against the Court reopening discovery. See e.g., Colletti v. Fagin, No.
90 Civ. 4591, 1999 WL 126461, at *3 (S.D.N.Y Mar. 10, 1999) (denying request to “reopen
discovery on the eve of trial” where party had prior opportunity to conduct the same discovery and
“chose not to do so”); Schatzman v. Cnty. of Clermont, Ohio, 234 F.3d 1269 (table), 2000 WL
1562819, at *11 (6th Cir. Oct. 11, 2000) (finding district court appropriately denied motion to
reopen discovery where dispositive motions were fully briefed by the parties and discovery had
been closed for nearly five months).
The Court additionally does not find Defendants’ justifications for reopening discovery to
be persuasive. For instance, Defendants’ explanation that the litigation previously “focused largely
upon Bradford’s dismissed [Eighth Amendment] claims” actually indicates that Defendants
deliberately chose not to seek discovery on Bradford’s First Amendment retaliation claims while
the discovery period was still open. Defendants had notice of Bradford’s retaliation claims since
2 It appears that the Scheduling Order was last amended to require completion of discovery by June 30, 2014 (DN
140). After the discovery period ended, Defendants’ motions for summary judgment were still held in abeyance based
on ongoing discovery disputes that were not resolved until October of 2015. (DN 221-1, at p. 5).
the case’s inception. Therefore, regardless of the alleged “focus” of the case, Defendants had the
opportunity to seek Bradford’s deposition regarding the retaliation claims from the beginning of
the litigation. (See DN 1, at ¶¶ 181-92). Defendants’ incorrect assumption that Bradford’s
retaliation claims would be dismissed on summary judgment does not excuse their failure to take
Neither is the Court persuaded by Defendants’ argument that “extensions of the discovery
deadline have been a common occurrence in this action.” Although the discovery period was
extended numerous times during this litigation, these previous extensions were permitted based on
Bradford’s amended and supplemental complaints and ongoing discovery disputes before the
Court. Defendants’ current request to reopen discovery at the eleventh hour is not analogous to
these previous extensions.
Finally, while Defendants may be correct that Bradford’s deposition would assist the Court
at trial since Bradford is a pro se litigant, this is not enough alone to reopen discovery. The Court
has noted on multiple occasions that Bradford has repeatedly demonstrated his ability to
sufficiently present his case to the Court and these observations are not altered by the fact that
Bradford’s remaining First Amendment retaliation claims could be tried in front of a jury. (DN
218, at p. 2 (citing DN 141, at p. 2)). Based on these considerations, Bradford would more than
likely be prejudiced if the Court permitted Defendants to reopen discovery to take his deposition.
In the event that the Court denies Defendants’ second motions for summary judgment (DN 222;
DN 223), the Court finds Defendants have not established good cause for reopening discovery to
take Bradford’s deposition.
IT IS HEREBY ORDERED that Defendants’ joint motion to reopen discovery to depose
Plaintiff (DN 221) is DENIED.
August 10, 2017
Counsel of Record
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