Paulsen v. Foxall et al

Filing 57

MEMORANDUM AND ORDER Plaintiff's Motion to Continue (Filing No. 54 ) is denied in all respects. Plaintiff's Motion for Subpoena (Filing No. 53 ) is denied, except that the Clerk of the Court shall issue a subpoena, signed by otherwise blank, and mail it to Plaintiff together with one (1) USM-285 Form. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD PAULSEN,
Plaintiff,
v.
BOBBY HYEK and
SARGENT BARBEE,
Defendants.

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8:14CV336

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Request for Continuance, docketed
as “Motion to Continue” (Filing No. 54), and Praecipe for Subpoena of Documents,
docketed as “Motion for Subpoena” (Filing No. 53), both of which were filed on
December 19, 2016.
Motion to Continue
Liberally construed, Plaintiff’s Motion to Continue is a request for extension
of time to respond to Defendants’ Motion for Summary Judgment (Filing No. 48),
which was filed on November 18, 2016.1 The court previously granted Plaintiff a 21day extension of time, until January 3, 2017, to respond to Defendants’ motion. See
Filing No. 52.
In the instant motion, Plaintiff indicates that “he requested all documents
pertaining to the assault” upon him by other inmates at Douglas County Department
of Corrections, but “never received an order approving or denying the request” and
did not receive the requested documents. He also indicates that he did not receive

Defendants claim qualified immunity and assert that Plaintiff cannot establish
the essential elements of his failure-to-protect claim.
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medical records pertaining to the assault. (Filing No. 54 at CM/ECF p. 1). Plaintiff
requests an extension of time pending entry of an “order granting or denying request
for medical records.” (Filing No. 54 at CM/ECF p. 2).
On September 13, 2016, the court entered a progression order which required
all interrogatories, requests for admission, and requests for production of documents
to be served on or before October 12, 2016, and all motions to compel discovery to
be filed on or before January 3, 2016. (Filing No. 39 at CM/ECF p. 1). A final pretrial
conference was scheduled for February 23, 2017. (Filing No. 39 at CM/ECF p. 2).
It appears from the court file that Plaintiff served interrogatories (Filing Nos.
42 and 43) and requests for admission (Filing No. 44) on Defendants on October 4,
2016, and that Defendants responded to the interrogatories and requests for admission
on October 27, 2016 (Filing No. 47). A request for production of documents (Filing
No. 45) was also received the Clerk of the Court and filed on October 7, 2016, but
there is no certificate of service.
Defendants oppose Plaintiff’s request for extension of time and indicate that
while “Defendants’ counsel inadvertently did not send the Defendants’ responses to
Plaintiff’s requests for production,” that oversight has now been corrected and their
responses have been mailed to Plaintiff, “including objections to Plaintiff’s requests
for medical records and video and photos of the February 1, 2013 assault ... based on
Plaintiff having requested those items from individuals who do not have access to
them.” (Filing No. 56). Defendants contend the requested “medical records and
records of the February 1, 2013 assault ... go solely to Plaintiff’s alleged damages, not
to Defendants’ legal liability” (id.), and thus are not required by Plaintiff in order to
respond to their summary judgment motion.
Plaintiff’s objection that he never received an order approving or denying a
request for production of documents is groundless. Under the Federal Rules of Civil
Procedure, Plaintiff was required to serve the requests for production of documents
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on Defendants (by mailing them to Defendants’ attorney), and Defendants would then
have 30 days from receipt of the requests to respond – no court order is necessary. See
Fed. R. Civ. P. 34. Even though Plaintiff is proceeding pro se, he is “bound by and
must comply with all local and federal procedural rules.” NEGenR 1.3(g).
To the extent that Plaintiff’s Motion to Continue might be construed as a
motion to compel discovery, it fails because, among other reasons, there is no
“certification that [Plaintiff] has in good faith conferred or attempted to confer with
[Defendants] in an effort to obtain [discovery] without court action,” Fed. R. Civ. P.
37(a)(1), and it appears that Defendants have now responded by objecting that they
do not have access to the requested documents. In any event, it is apparent that the
request for production of documents Plaintiff filed with the court (Filing No. 45) is
seeking institutional records that would not reasonably be expected to be found in the
care, custody, or control of Defendants in their individual capacities.
When Plaintiff last moved for an extension of time to respond to Defendants’
summary judgment motion on or about December 5, 2016 (Filing No. 51), he asked
for a 60-day extension based on limited access to the law library at the Nebraska
Department of Corrections. He made no mention of needing to obtain any documents
through discovery. The court granted Plaintiff a 21-day extension to allow him
additional research time while still maintaining the progression schedule. The court
declines to grant any further extension without a showing by affidavit or declaration
that Plaintiff for specified reasons is unable to present facts in opposition to the
summary judgment motion. See Fed. R. Civ. P. 56(d).
Accordingly, Plaintiff’s Motion to Continue will be denied in all respects.
Motion for Subpoena
Plaintiff’s Praecipe for Subpoena of Documents is properly captioned for this
case but is directed to the Clerk of the Douglas County Court for the issuance of a
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subpoena “pursuant to Neb. Rev. Stat. § 25-1273 ... and Rule 34 of the Nebraska
Rules of Civil Procedure ... “command[ing] Donna Fricke of the Douglas County
Correctional Center to mail copies of grievances, kites, and logs of records pertaining
to the assault” to Plaintiff (Filing No. 53). Treated as a motion, this filing will be
denied, except that the Clerk of the Court will be directed to issue a subpoena “signed
by otherwise in blank” pursuant to Federal Rule of Civil Procedure 45(a)(3) and mail
it to Plaintiff, together with one (1) USM-285 Form. Because he is proceeding in
forma pauperis, Plaintiff may then complete the subpoena and return it and the
completed USM-285 Form to the Clerk of the Court for service of the subpoena by
the United States Marshal.
IT IS ORDERED that:
1.

Plaintiff’s Motion to Continue (Filing No. 54) is denied in all respects.

2.

Plaintiff’s Motion for Subpoena (Filing No. 53) is denied, except that the
Clerk of the Court shall issue a subpoena, signed by otherwise blank, and
mail it to Plaintiff together with one (1) USM-285 Form.

DATED this 22nd day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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