Hensley v. Cain et al

Filing 58

ORDER denying 55 Motion for Order to Compel Production of Documents. Signed by Magistrate Judge Docia L Dalby on 1/19/2012. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONALD HENSLEY, JR. (#112218)
VERSUS

CIVIL ACTION

BURL CAIN, ET AL

NUMBER 11-94-JJB-DLD

ORDER
Before the court is the plaintiff’s Motion For Order To Compel Production
of Documents. Record document number 55. The motion is opposed.1
Plaintiff sought to compel the production of documents propounded on
September 2, 2011.2
On October 19, 2011, the plaintiff filed a motion to compel discovery
including a motion to compel the production of the same documents at issue
in this motion to compel.3 On December 5, 2011, the plaintiff’s motion to
compel the production of documents was granted in part.4 Defendants were
ordered to produce copies of: (1) a copy of the Health Department
1

Record document number 57.

2

Record document number 30.

3

Record document number 35.

4

Record document number 47.

investigation report regarding the November 26, 2009 incident as referenced
in ARP LSP-2009-3846; (2) copies of any LSP policy or ACA standard which
addresses the health and safety of food preparation and service which was
in effect on November 26, 2009; and (3) any Warden’s Unusual Occurrence
Report issued as a result of the November 26, 2009 incident relating to the
alleged food poisoning of the plaintiff and several hundred other prisoners and
employees.
In response the defendants filed: (1) LSP Investigative Services foodborne outbreak investigation referenced in ARP LSP-2009-9846; (2) a copy
of the Department of Public Safety and Corrections Health Care Policy No.
HC-18 which addresses the health and safety of food preparation and service
in effect on November 26, 2009; and (3) copies of all Warden’s Unusual
Occurrence reports issued as a result of the November 26, 2009 incident.5
In his motion to compel, the plaintiff argued that the discovery responses
are incomplete. Specifically, the plaintiff argued that the investigation report
prepared by Maj. Joel Harrell was withheld and he did not receive copies of
LSP Directive 11:003, Department Regulation C-06-001, or ACA Standards
policies numbers 3-4294, 3-4298, 3-4303, 3-4306, 3-43-07, and 3-4309.
Plaintiff did not argue that any of the policies, directives and regulations

5

Record document number 51.

purportedly withheld were in effect at the time of the incident and address the
health and safety of food preparation and service.
Defendant opposed the plaintiff’s motion arguing that the motion to
compel is premature and that they have produced all documents in their
possession.
A party moving to compel discovery must include a certification that the
movant has in good faith conferred or attempted to confer with the party not
making the disclosure in an effort to secure the disclosure without court
action. Rule 37(a)(1). Plaintiff failed to certify that he has conferred with
counsel for the defendants.
Accordingly, the plaintiff’s Motion For Order To Compel Production of
Documents is denied without prejudice to re-urging his motion to compel once
he has conferred with counsel for the defendants and that the parties are
unable to resolve the discovery dispute.
The parties are encouraged to confer regarding the disputed
documents. First, a review of the defendant’s notice of compliance, record
document number 51, showed that a copy of the investigation report by Maj.
Joel Harrell was filed into the record. If the plaintiff asserts that he did not
receive a copy of the report, counsel for the defendants should send him
another copy. Second, counsel for the defendants is placed on notice that the

December 5, 2011 order granting the plaintiff’s motion to compel required the
defendants to produce copies of any LSP policy or ACA standard which
addresses the health and safety of food preparation and service which was
in effect on November 26, 2009. The spirit of the order included any relevant
directive, regulation, policy or ACA standard.

Third, the parties are

encouraged to confer and determine whether the documents sought by the
plaintiff in his most recent motion to compel are also responsive to the court’s
December 7, 2011 order. The parties are encouraged to resolve this issue
without further use of the court’s limited judicial resources.
Signed in Baton Rouge, Louisiana, on January 19, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY