Bell v. Lombardi et al

Filing 80

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for an order compelling discovery [Doc. #58] is granted in part and denied in part. IT IS FURTHER ORDERED that defendant George Lombardi shall have until February 17, 2015 to answer the plaintiffs interrogatories as set forth above. Signed by District Judge Carol E. Jackson on 1/28/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHNELL A. BELL, I,
Plaintiff,
vs.
GEORGE A. LOMBARDI, et al.,
Defendants.

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Case No. 4:14-CV-0027 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for an order compelling
discovery pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. Defendants
have responded in opposition.
I.

Background
Plaintiff, a state prisoner, brings this action pursuant to 42 U.S.C. § 1983,

alleging that correctional officers at the Eastern Reception, Diagnostic and
Correctional Center (ERDCC) assaulted him on May 28, 2013.

In the complaint,

plaintiff identifies seven other inmates whom he alleges were also assaulted by
correctional officers at the ERDCC on various dates from January 2013 to August
2013.

Plaintiff alleges that defendant George Lombardi, the director of the Missouri

Department of Corrections, and other prison officials knew or should have known of
the danger to plaintiff safety because of the numerous prior assaults on inmates, but
that they failed to take steps to protect him.
Plaintiff propounded a set of interrogatories to defendant Lombardi, some of
which were objected to on grounds of relevance, overbreadth, and undue burden.
Plaintiff now moves to compel defendant Lombardi to answer Interrogatories 4-9,
12-13, and 21.

II.

Legal Standard

Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense.”

Fed. R. Civ. P. 26(b).

“Relevant information need not be

admissible at trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”

Id.

Given that the Federal Rules of Civil Procedure allow for broad discovery, the
burden is typically on the party resisting discovery to explain why discovery should be
limited.

See Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108, 1111 (N.D. Ill.

2004).

That is, after the proponent of discovery makes a threshold showing of

relevance, the party opposing a motion to compel has the burden of showing its
objections are valid by providing specific explanations or factual support as to how
each discovery request is improper.

Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380

(8th Cir. 1993); St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D.
508, 511-12 (N.D. Iowa 2000).

Bare assertions that the discovery requested is

overly broad, unduly burdensome, oppressive, or irrelevant are ordinarily insufficient
to bar production.

St. Paul Reinsurance Co., 198 F.R.D. at 511-12; Carlson v.

Freightliner LLC, 226 F.R.D. 343, 370 (D. Neb. 2004).

“[T]he party resisting

discovery must show specifically how each interrogatory or request for production is
not relevant or how each question is overly broad, burdensome or oppressive.”

St.

Paul Reinsurance Co., 198 F.R.D. at 511-12 (internal quotations and citations
omitted).
III.

Discussion

To succeed on his Eighth Amendment failure to protect claim, plaintiff must
show that defendant Lombardi was deliberately indifferent to a substantial risk of
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serious harm.

Farmer v. Brennan, 511 U.S. 825, 840 (1994).

“An official is

deliberately indifferent if he or she actually knows of the substantial risk and fails to
respond reasonably to it.”

Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007).

“[N]either unsupported conjecture nor negligence regarding a substantial risk of
serious harm to the inmates is sufficient to prove deliberate indifference.” Lenz v.
Wade, 490 F.3d 991, 996 (8th Cir. 2007).

“[T]he official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farmer, 511 U.S. at 837.
The Supreme Court has explained that “[w]hether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial evidence, and a factfinder
may conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious.”

Id. at 842-43 (internal quotations and citations omitted).

“For example, if an Eighth Amendment plaintiff presents evidence showing that a
substantial risk of inmate attacks was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past, and the circumstances suggest that the
defendant-official being sued had been exposed to information concerning the risk
and thus ‘must have known’ about it, then such evidence could be sufficient to permit
a trier of fact to find that the defendant-official had actual knowledge of the risk.”

Id.

(internal quotations and citations omitted).
The Eighth Circuit has held that a record supported the conclusion that a
prison official had exhibited deliberate indifference to a substantial risk of serious
harm to the inmates when the supervisor “(1) had received numerous letters and
other complaints accusing the officer of using excessive force, (2) had not
investigated the accusations, and (3) ignored recommendations from other officials
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that the officer be reassigned or discharged.”

Lenz, 490 F.3d at 996 (summarizing

Davis v. Delo, 115 F.3d 1388, 1392-93, 1396 (8th Cir. 1997)); see also Riley v.
Olk-Long, 282 F.3d 592, 595-96 (8th Cir. 2002) (affirming the district court’s denial of
the supervisor’s and warden’s motions for judgment as matters of law because the
officer had been the subject of numerous investigations concerning his inappropriate
behavior with inmates and the supervisor and warden believed the officer was a
problem and may be sexually assaulting inmates).
Defendants object to the following interrogatories as overbroad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible
evidence:
5. How often do you receive reports from the wardens about the state of the
prisons they run? What all do those reports entail?
6. In your time as director, how many of your subordinates have you personally
disciplined or had disciplined for excessive use of force cases?
7. From 2011, January 1st until 2013, May 28th, how many physical use of forces
on inmates were there in the MO.DOC?
8. From 2011, January 1st until 2013, May 28th, how many physical use of forces
on inmates were that at ERDCC?
9. From 2011, January 1st until 2013, May 28th, how many inmates received any
physical injuries as a result of a use of force?
21.What actions had you taken from 2011, January 1st until 2013, May 28th
concerning use of forces where injuries occurred to offenders in MO.DOC?
The Court agrees with plaintiff that the information sought is reasonably likely
to lead to the discovery of evidence relevant to his allegations.

Evidence obtained

from these interrogatories may show a pattern of misconduct relevant to his claim of
deliberate indifference to a substantial risk of abuse.

The responses may show

defendant Lombardi’s notice of and failure to respond to earlier incidents of excessive
force and failure to protect. See Perry v. Martin, No. 4:10-CV-2436 (SNLJ), 2013 WL
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2467925, at *2-3 (E.D. Mo. July 7, 2013) (granting similar discovery requests to a
prisoner alleging excessive force and failure to protect). Also, the Court finds that
the time period covered by these interrogatories is sufficiently narrow in scope. See
id. at *3 (granting a document request for a ten-year time period).
With respect to Interrogatory 5, plaintiff notes that § 217.185 of the Missouri
Revised Statutes requires the chief administrative officer of each correctional center
to make monthly reports to the appropriate division director, including a report of all
admissions and discharges to the correctional center; a report of all assaults, deaths,
and escapes from the correctional center; a report of all complaints filed with the chief
administrative officer of the correctional center; and any other information requested
by the director.

Defendants do not contest this statutory obligation.

Defendant Lombardi has failed to meet his burden in opposition to the
discovery by providing specific explanations or factual support for his objections.
See St. Paul Reinsurance Co., 198 F.R.D. at 511-12.

Defendants’ argument that

plaintiff fails to allege that correctional supervisors knew of the alleged incidents of
abuse or that the incidents were deemed to be excessive force is circular.

Plaintiff

has alleged deliberate indifference to excessive force, and is seeking evidence
through the mechanism of discovery to support his claims.

“[E]vidence showing that

a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past, and the circumstances suggest that the
defendant-official being sued had been exposed to information concerning the risk
and thus ‘must have known’ about it, could be sufficient to permit a trier of fact to find
that the defendant-official had actual knowledge of the risk.”
842-43 (internal quotations and citations omitted).

Farmer, 511 U.S. at

As such, plaintiff is entitled to

this information and defendant Lombardi must respond to these interrogatories.
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Defendants also object to the following interrogatories as overbroad, and argue
that plaintiff is not entitled to defendants’ disciplinary files or documents relating to
past complaints by other inmates:
4. If [you have ever had a section 1983 civil action filed against you as a MO.DOC
employee], please list reason(s) why for each claim?
6. Please explain who [of your subordinates] you [have] disciplined [for excessive
use of force], what their discipline was, why they were disciplined, their job
title, where they worked, the date of the use of force and the date you took
action?
12.Have any of the named defendants in this case ever previously been accused of
and/or disciplined in any way for the claims for which they are accused of in this
case?
13.Have any of the named defendants in this case ever been disciplined for any
reason? If yes, list who, why and when?
Defendants also argue that plaintiff is not entitled to information in the monthly
institution reports mentioned in Interrogatory 5.
Defendants argue that Missouri Revised Statute § 217.075 prohibits the
disclosure of information that may affect the safety and security of a corrections
facility.

See Mo. Rev. Stat. § 217.075.1(3) (stating that “[a]ny internal

administrative report or document relating to institutional security” is not a “public
record” within the meaning of chapter 610).

Defendants state that allowing an

offender access to information regarding officers’ disciplinary histories or about
complaints made by other offenders would compromise the safety and security of the
correctional facility.

Offenders such as plaintiff, defendants argue, could use such

information as leverage in their interactions with staff and other offenders, or could
use it to fabricate new claims against staff.
Because evidentiary privileges operate to exclude relevant evidence, the
Supreme Court has directed that courts must narrowly construe privileges and
statutes creating them.

See Univ. of Pa. v. EEOC, 493 U.S. 182, 189 (1990) (“We do
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not create and apply an evidentiary privilege unless it promotes sufficiently important
interests to outweigh the need for probative evidence,” and “any such privilege must
be strictly construed.”) (internal quotations and citations omitted); PepsiCo, Inc. v.
Baird, Kurtz & Dobson LLP, 305 F.3d 813, 815-16 (8th Cir. 2002) (narrowly construing
a privilege delineated by state statute). To the extent that Mo. Rev. Stat. § 217.075
creates an evidentiary privilege that defendants may invoke, it will be construed
narrowly.
The Court finds that Interrogatories 4 and 6 are overbroad.

Thus, defendant

Lombardi may limit his answer to Interrogatory 4 to prior § 1983 actions involving
claims similar to those alleged in this case. The answer to Interrogatory 6 may be
limited to disciplinary action taken by Lombardi against Department of Corrections
employees at ERDCC for excessive use of force.

The information sought in

Interrogatory 12 is relevant to the issues involved in this case and defendants have
not shown that it is overbroad or unduly burdensome. However, the objection to
Interrogatory 13 will be sustained, as it seeks information about disciplinary action
resulting from conduct that has nothing to do with the conduct of the defendants
alleged in this case.
The Court is receptive to defendants’ concern about producing sensitive
information in this case. However, defendants’ privacy and security interests may be
protected by a protective order under Rule 26(c) of the Federal Rules of Civil
Procedure. See Her v. Paulos, No. Civ. 11-808 (PAM/TNL), 2012 WL 6634777, at *6
(D. Minn. Dec. 20, 2012) (finding that documents requested by a prisoner were not
privileged under a state statute regulating access to government data and ordering
defendants to propose a protective order).

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Therefore, defendants may submit to the

Court a proposed protective order governing the use, release, and accessibility of the
information as permitted by Fed. R. Civ. P. 26(c).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for an order compelling
discovery [Doc. #58] is granted in part and denied in part.
IT IS FURTHER ORDERED that defendant George Lombardi shall have until
February 17, 2015 to answer the plaintiff’s interrogatories as set forth above.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 28th day of January, 2015.

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