Braun v. D.O.C. et al

Filing 94

ORDER denying 72 Motion ; denying 77 Motion to Compel; denying 80 Motion ; denying 86 Motion to Compel. (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 10/13/2020. (SGK)

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 1 of 7

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Nathan Christopher Braun,

Case No. 18-cv-3355 (JNE/ECW)

Plaintiff,
v.

ORDER

Dennis Hanson, et al.,
Defendants.

This matter is before the Court on Plaintiff Nathan Christopher Braun’s (“Braun”
or “Plaintiff”) Motion to Request Permission for Documents to be Filed under Seal (Dkt.
72); Motion to Compel (Dkt. 77); Motion to Appoint a Third-Party Medical and Mental
Health Evaluator (Dkt. 80); and Motion to Compel Discovery Request (Dkt. 86.). 1
I.

MOTION TO REQUEST PERMISSION FOR DOCUMENTS TO BE
FILED UNDER SEAL (DKT. 72)
Plaintiff seeks to file certain documents under seal for this Court’s consideration

as part of his present action that he claims show the illegal acts of Defendants. (Dkt. 72.)
Plaintiff fears that unsealing these documents will cause Defendants to retaliate against
him. (Id.) The documents at issue appear to be communications or memorializations of
communications with Defendant(s) and their legal counsel pertaining to his claims that he
has been deprived of his legal materials. (Dkts. 73, 73-1, 73-2, 73-3.)

1

Plaintiff’s Motion to Compel (Dkt. 81), which seeks an order directing Defendants
to comply with certain statutes and policies, will be addressed in a separate Report and
Recommendation as it seeks injunctive relief.

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 2 of 7

These documents or the information therein have already been provided to
Defendants by Plaintiff and this issue has already been raised in the present action,
making any assertion that Plaintiff would be harmed if the information is made public
unlikely. Moreover, Court will not allow ex parte communications between the Court
and one party related to this case, and the Court will not consider these submissions in
making any decisions regarding Plaintiff’s accusations unless they are also available to
Defendants to defend themselves. Regardless, the Court reminds Defendants and their
counsel that unlawful retaliation against Plaintiff for bringing this action will not
tolerated.
For these reasons, Plaintiff’s motion to seal is denied. Docket Entries 72, 73, 731, 73-2, and 73-3 shall be unsealed on November 3, 2020.
II.

MOTION TO COMPEL (DKT. 77)

The present action relates to Plaintiff’s claims under 42 U.S.C. § 1983 for
Defendants’ alleged violations of his Constitutional rights related to injuries he is alleged
to have sustained as part of Defendants’ actions against him as part of his “hunger strike.”
(See Dkt. 9.)
In his Motion to Compel (Dkt. 77), Plaintiff asserts that Defendants’ legal counsel,
Kevin Jonassen, has refused to provide answers to interrogatories (Dkt. 75), which
Plaintiff alleges counsel is required to do given that he “is [a] party to this lawsuit.” (Id.)
The discovery at issue is titled “Interrogatory to Opposing counsel in 20-cv-333; 20-cv331; 20-cv-885; and 18-cv-3355 and Associated Appeals.” (Dkt. 75.) The
Interrogatories require “opposing counsel” to “give the answers herein commanded.”
2

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 3 of 7

(Id.) Defendants counter in part that legal counsel are not named defendants to this
lawsuit. (Dkt. 83 at 3.) Indeed, counsel are not parties to this action. (Dkt. 9.)
Rule 33 of the Federal Rules of Civil Procedure provides that a “party may serve
on any other party” interrogatories and requires the party to which they are directed to
answer. See Fed. R. Civ. P. 33(b)(1)(A) (emphasis added). While Rule 33 requires
attorneys to sign as to any objections made, the party who answers them must sign as to
those answers. See Fed. R. Civ. P. 33(b)(5). The plain text of Rule 33 makes it apparent
that interrogatories must be directed to a party to provide facts relevant to the claims and
defenses in the Second Amended Complaint.
Given that Plaintiff has represented that these interrogatories are meant for legal
counsel and not any of the named Defendants, the interrogatories fall outside the scope of
Rule 33 because they are not directed to a party. Therefore, the Motion to Compel is
denied.
III.

MOTION TO APPOINT A THIRD-PARTY MEDICAL AND MENTAL
HEALTH EVALUATOR (DKT. 80)
Plaintiff seeks an order from this Court appointing a third-party physical and

mental health expert to properly diagnose the extent of the injuries that he allegedly
suffered at the hands of Defendants as part of their alleged excessive force against him
and the corresponding deliberate indifference to his medical needs. (Dkt. 80 at 1.)
Plaintiff claims he is entitled to the appointment of experts because he is indigent and has
been granted in forma pauperis (“IFP”) status. (Id.)

3

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 4 of 7

The statutory authorization for IFP status, 28 U.S.C. § 1915, does not authorize
court-subsidized experts or, for that matter, payment by the court or an opposing party of
any litigation expenses other than court fees. See Vogel v. Turner, No. 11-cv-0446
(PJS/JJG), 2013 WL 358874, at *11 (D. Minn. Jan. 8, 2013) (citations omitted), R.&R.
adopted, 2013 WL 359072 (D. Minn. Jan. 30, 2013); see also U.S. Marshals Serv. v.
Means, 741 F.2d 1053, 1056 (8th Cir. 1984) (“The plain language, statutory context and
legislative history of 28 U.S.C. § 1915 convince us that the statute neither expressly nor
implicitly authorizes the payment of the witness fees and expenses as ordered by the
district court.”). Indeed, district courts in the Eighth Circuit, including in this District,
have “consistently held that indigent civil litigants are required to bear the costs of their
own experts.” Vogel, 2013 WL 358874, at *11 (citing Reyna v. Weber, No. Civ. 114044, 2012 WL 2999768, at *2 (D.S.D. June 29, 2012)); Holloway v. Lott, No. 4:08-cv00821-GTE, 2009 WL 2778665, at *1 (E.D. Ark. Aug. 28, 2009) (citations omitted).
For these reasons, the Court denies Plaintiff’s motion to have the Court appoint
experts and for payment of their fees and costs to the extent that it is based on his IFP
status.
IV.

MOTION TO COMPEL DISCOVERY REQUEST (DKT. 86)

Plaintiff seeks an order from the Court compelling Defendants to produce all
records, files, and materials related to his Affidavit of the Facts and the Merits
(“Affidavit”) (Dkt. 76). (Dkt. 86.) In the Affidavit, Plaintiff provides in relevant part as
follows:
I Nathan Christopher Braun, the Plaintiff in the Case, do Solemnly pledge
4

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 5 of 7

that the following is true and accurate to the best of my own personal
knowledge and understating pursuant to Title 28 USC § 1746(1), and would
hereby request that Defendants produce all documentary and other record
[sic] pertaining to the following affidavit pursuant to Fact Discovery . . . .
(Dkt. 76 at 1.) The Affidavit then proceeds to provide almost ten single-spaced pages
relating to what Plaintiff alleges the facts are, at least in part, as to the merits of his claims
regarding events occurring on November 5 and 6, 2018, and an exhibit in the form of a
Minnesota Department of Corrections directive regarding hunger strikes. (Dkts. 76, 761.)
On August 21, 2020, counsel for Defendants responded to Plaintiff’s Affidavit by
letter informing him that to the extent his Affidavit was meant as a request for the
production of documents, Defendants would not be responding because it did not comply
with the Federal Rules of Civil Procedure. (Dkt. 91 ¶ 2; Dkt 91-1.) Defendants also
represented that in order to resolve this issue, they produced on September 25, 2020
eleven incident reports and a supervisor’s review of chemical irritant use from the alleged
incident that occurred on November 6, 2018; staff training records; three videos related to
the alleged incident that occurred on November 6, 2018; and six photos of Plaintiff
following the alleged incident that occurred on November 6, 2018. (Dkt. 91 ¶ 3; Dkt 912.) There is no indication from Plaintiff that this production satisfies his request for
documents as set forth in the Affidavit.
Defendants argue that the Motion to Compel Discovery Request should be denied
because the discovery request does not comport with Rule 34 of the Federal Rules of
Civil Procedure, as it fails to set forth each category of items sought with reasonable

5

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 6 of 7

particularity. (Dkt. 90 at 2-3.)
Federal Rule of Civil Procedure 34(b) provides that a request for production or
inspection “must describe with reasonable particularity each item or category of items to
be inspected” or produced. Fed. R. Civ. P. 34(b)(1)(A). “The test for reasonable
particularity is whether the request places the party upon ‘reasonable notice of what is
called for and what is not.’” Hager v. Graham, 267 F.R.D. 486, 493 (N.D. W. Va. 2010)
(quoting Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D. W. Va.
2000)). Courts that have examined this issue have concluded that broad requests seeking
facts that essentially encompass a complaint do not meet the particularity requirements of
Rule 34:
“All-encompassing demands” that do not allow a reasonable person to
ascertain which documents are required do not meet the particularity
standard of Rule 34(b)(1)(A).” In re Asbestos Prods. Liab. Litig. (No. VI),
256 F.R.D. 151, 157 (E.D. Pa. 2009). For example, “[b]road and undirected
requests for all documents which relate in any way to the complaint” do not
meet Rule 34(b)(1)(A)’s standard. Parsons v. Jefferson-Pilot Corp., 141
F.R.D. 408, 412 (M.D.N.C. 1992). Similarly, “[a] request for ‘all documents
and records’ that relate to ‘any of the issues,’ while convenient, fails to set
forth with reasonable particularity the items or category of items sought for
[the responding party’s] identification and production of responsive
documents.” Sewell v. D’Alessandro & Woodyard, Inc., No. 2:07-CV-343FTM-29, 2011 WL 843962, at *2 (M.D. Fla. Mar. 8, 2011); see also S.E.C.
v. Mazzo, No. SACV121327DOCAN, 2013 WL 12172628, at *20 (C.D. Cal.
Oct. 24, 2013) (“Boilerplate requests, like boilerplate objections, are not
recognized and constitute an abuse of the discovery process.”).
Lopez v. Don Herring Ltd., 327 F.R.D. 567, 575-76 (N.D. Tex. 2018).
Here, Plaintiff effectively seeks any document related to the contents of his
Affidavit. The almost ten-page Affidavit essentially adds more detail regarding the facts
underlying the Second Amended Complaint. Such a broad all-encompassing request
6

CASE 0:18-cv-03355-JNE-ECW Doc. 94 Filed 10/13/20 Page 7 of 7

does not meet the particularity requirements of Rule 34 as it does not set forth the
category of documents sought, thereby requiring Defendants to guess as to what is
responsive, as is evidenced by their attempt to resolve this issue with their production,
which apparently is insufficient for Plaintiff. As such, the Motion to Compel Discovery
Request is denied.
V.

ORDER

Based on the files, records, and proceedings herein,
IT IS ORDERED THAT:
1.

Plaintiff’s Motion to Request Permission for Documents to be Filed under

Seal (Dkt. 72) is DENIED. Docket Entries 72, 73, 73-1, 73-2 and 73-3 shall be
UNSEALED on November 3, 2020.
2.

Plaintiff’s Motion to Compel (Dkt. 77) is DENIED.

3.

Plaintiff’s Motion to Appoint a Third-Party Medical and Mental Health

Evaluator (Dkt. 80) is DENIED.
4.

Plaintiff’s Motion to Compel Discovery Request (Dkt. 86) is DENIED.

DATED: October 13, 2020

s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge

7