Harris v. Hill
MEMORANDUM AND ORDER re: 80 MOTION to Compel MOTION for Extension of: time to prevail on the merits of his claims filed by Plaintiff Jim Harris, Jr., 78 MOTION to Compel MOTION to Appoint Counsel filed by Plaintiff Jim Harris, Jr. IT IS HEREBY ORDERED that the Clerk shall send to plaintiff a current copy of the docket sheet. IT IS FURTHER ORDERED that plaintiff's Motion to Compel (#78) is DENIED. IT IS FURTHER ORDERED that plaintiff's Motion for Extension (#80) is DENIED in part and GRANTED in part. IT IS FURTHER ORDERED that plaintiff shall have until January 5, 2018 by which to file his response to the defendant's motion for summary judgment. Signed by District Judge Stephen N. Limbaugh, Jr on 11/28/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NINA HILL, et al.,
No. 1:16-cv-83 SNLJ
MEMORANDUM and ORDER
This matter is before the Court on two motions filed by plaintiff. Each is
discussed in turn below.
Motion to Compel or Appoint Counsel (#78)
On April 14, 2016, Plaintiff Jim Harris (“Plaintiff”) initiated this suit against
defendant Nina Hill, a nurse practitioner, and filed a motion for preliminary injunction or
temporary restraining order. Following this Court’s review under 28 U.S.C. §
1915(e), plaintiff was allowed to maintain one claim against Hill based on the
allegations that she “terminated his lay-in and assigned him to the top walk and top
bunk,” although he is handicapped, resulting in at least one fall.
In a later order, the Court clarified that plaintiff claimed Hill took away his
medical lay-in for a bottom bunk despite his handicap and that he sought to reinstate
the lay-ins for bottom-bunk and lower walk.
On March 15, 2017, this Court entered a scheduling setting a discovery
deadline of August 18, 2017, and a dispositive motions deadline of September 5,
2017. (#35.) The parties engaged in discovery; Hill responded to interrogatories and
requests for production on documents. In addition, on July 19, 2017, Plaintiff served
Defendant with deposition questions under Federal Rule of Civil Procedure 31. On
July 27, 2017, counsel advised plaintiff that defendant Hill would not respond to the
questions because the request did not comply with Federal Rules of Civil Procedure 28,
30 and 31(b). Defendant received no further response or communication regarding
the deposition questions, and on August 18, 2017, time expired for discovery. Hill
filed her motion for summary judgment on September 5, 2017.
On September 21, 2017, plaintiff requested and received an order for “an
additional 45 days to file reply to any and all matters pending in this court.” (See
Order, #77.) Instead of responding to the motion for summary judgment—the only
pending matter in this Court—plaintiff filed a motion to compel Hill to respond to
his deposition questions or, in the alternative, to appoint counsel.
Plaintiff was apparently in the Cape Girardeau County Jail for several weeks and
was not able to address the matter of his request for depositions by written questions until
he returned to prison. Plaintiff asks the Court to grant leave to depose the defendant by
written question and to appoint a commissioner to do so under Federal Rules of Civil
Procedure 26 and 31. Alternatively, plaintiff asks the Court to appoint counsel.
Plaintiff’s request for counsel is denied for the same reasons the Court previously
denied plaintiff’s motions. (See, e.g., #12, #37.) The Court also denies plaintiff’s request
to depose defendant Hill by written question. Defendant Hill has already responded to
plaintiff’s other discovery requests, which include interrogatories and document requests.
Plaintiff does not offer any reason why the cost and burden of a deposition should be
imposed. Nor does plaintiff explain how he would pay for the costs inherent to the taking
of a deposition. Plaintiff mysteriously refers to a matter pending in state court between
himself and defendant Hill and notes that “there is [a] conflict between the Mississippi
County Sheriff and the Defendant N.P. Hill where she allege[s] she never received
summons but the Sheriff allege[s] he served her.” (#78 at 2.) He also attaches a motion
he filed in that state court matter regarding the issue of her service in that state court
matter. That matter is entirely irrelevant to the issues in plaintiff’s case. Plaintiff has not
supported his request for leave to take defendant Hill’s written deposition. In light of the
straightforward issues involved in his case, there plaintiff’s written discovery was
adequate. The motion will be denied.
Insufficient Discovery Motion (#80)
Plaintiff seeks an extension of time in which to respond to the defendant’s motion
for summary judgment and again asks the Court to order defendant to respond to the
written deposition questions. Plaintiff states he is having difficulty responding to the
motion for summary judgment because
Plaintiff attempts to respond without the Court stamped docket number in
reference to which document plaintiff must or should respond to, or how to
respond to, because some of the affidavits and supplemental reports of
Defendant Hill’s are without medical numbers or document numbers.
(#80 at 2.) Defendant responds that she cited to affidavits and Bates-numbered medical
records that have been on the docket and in plaintiff’s hands since April 25, 2017. To the
extent plaintiff is confused about the identification of documents cited in defendant’s
motion, plaintiff should send a letter to counsel asking for clarification. The Clerk will
also sent plaintiff an updated copy of the docket sheet for his reference. Plaintiff will be
allowed until January 5, 2018 by which to file his response to the defendant’s motion for
IT IS HEREBY ORDERED that the Clerk shall send to plaintiff a current copy
of the docket sheet.
IT IS FURTHER ORDERED that plaintiff’s Motion to Compel (#78) is
IT IS FURTHER ORDERED that plaintiff’s Motion for Extension (#80) is
DENIED in part and GRANTED in part.
IT IS FURTHER ORDERED that plaintiff shall have until January 5, 2018 by
which to file his response to the defendant’s motion for summary judgment.
Dated this 28th day of November, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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