Lovett v. Cole et al

Filing 48

ORDER denying 43 Motion seeking a court order from three witnesses for an affidavit. Signed by Magistrate Judge J. Gregory Wehrman on 8/29/11. (mtw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
AT CINCINNATI
CIVIL CASE NO: 11-277-SAS-JGW
KELVIN LOVETT

PLAINTIFF

V.
OFFICER STEVEN COLE, et al.

DEFENDANTS

MEMORANDUM ORDER
Pending is pro se plaintiff’s motion seeking a court order from three witnesses for an
affidavit. Doc. 43. For the following reasons, the motion will be denied.
In its entirety, the body of plaintiff’s motion is as follows:
Now comes Kelvin Lovett, plaintiff, pro-se, [Sic] Hereby ask the [court]
to issue a court order for an affidavit from; Nurse J. Kluthe, Nurse D. Linneman,
and c/o J. Williams as to the incident that involved the plaintiff on Jan. 14, 2011.
These 3 witnesses gave statements to the use of force some statements
were contradictery [sic]. I’ll need a more clear statement moving forward. And
the statement[s] were unsigned.
I ask that the Affidavit[s] be signed and notarized, and be served on
plaintiff within 30 days of service.
If you need a copy of statements or medical exam report to view statement
already give [sic], the Defendant will simply [supply?] such (because they have a
master file)[.]
Based upon the above the plaintiff believes good cause exist [sic] in this
matter to order the Defendant to get these Affidavit[s] from staff who work at
Lebanon.
Doc. 43.
The motion is not a model of clarity, but as I construe it plaintiff is asking the Court to
order defendants to produce affidavits for plaintiff to use to further his §1983 claims. As
defendants note in their response, none of the applicable Rules of Civil Procedure “require
Defendants to submit unspecified affidavits to the opposing party from their own potential
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witnesses.” Doc. 47, p.1. The Rules of Civil Procedure set forth the proper method for
obtaining discovery,1 and plaintiff’s pro se status does not mean that defendants are obligated to
conduct discovery on plaintiff’s behalf. Moreover, S. D. Ohio Civ. R. 37.1 provides in relevant
part that “[o]bjections, motions, applications, and requests relating to discovery shall not be filed
in this Court, under any provision in Fed. R. Civ. P. 26 or 37 unless counsel have first exhausted
among themselves all extrajudicial means for resolving the differences.” S. D. Ohio Civ. R. 37.2
provides in relevant part that any motion seeking discovery “shall be accompanied by a
supporting memorandum and by a certification of counsel setting forth the extrajudicial means
which have been attempted to resolve differences.” Plaintiff’s motion blatantly violates both
local rules because it does not contain any indication that plaintiff attempted, much less
exhausted, any extrajudicial means to obtain the discovery in question.
For the foregoing reasons, it is ORDERED:
Plaintiff’s motion seeking a court order from three witnesses for an affidavit [Doc. 43] is
denied.
August 29th, 2011.

s/ J. Gregory Wehrman
J. Gregory Wehrman
United States Magistrate Judge

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The Court cannot offer legal advice to plaintiff or explain in detail all of the various
methods for properly obtaining discovery. But, depending on the type and scope of discovery he
seeks, plaintiff should generally familiarize himself with the following Federal Rules of Civil
Procedure: 26(scope of discovery); 30 (oral depositions); 31 (written depositions); 33
(interrogatories); 34 (production of documents); 36 (requests for admission); 45 (subpoenas).
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