Pullen v. Cool et al

Filing 95

ORDER adopting Report and Recommendation re 80 Report and Recommendation granting 63 Motion to compel; denying 65 Motion to Strike; and granting 79 Motion to extend the dispositive motion deadline. Signed by Judge Michael R. Barrett on 9/5/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Terry Tyrone Pullen, Jr.,
Plaintiff,

Case No. 1:16cv515

v.

Judge Michael R. Barrett

William Cool, et al.,
Defendants.
ORDER
This matter is before the Court upon the March 2, 2018 Magistrate Judge’s Order
and Report and Recommendation (“R&R”). (Doc. 80). Plaintiff filed timely objections to
the Magistrate Judge’s Order and R&R. (Doc. 82).
This Court shall consider objections to a magistrate judge's order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a).
When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3).

After review, the district judge “may accept, reject, or modify the

recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Federal Rule of Civil Procedure 72(b)(2) states that if a party objects to a
magistrate’s report and recommendation, the party must file “specific written objections”
to the recommendation. Fed. R. Civ. P. 72(b)(2). A general objection to a magistrate’s

report, without specifically indicating the issues of contention, does not satisfy the
“specific written objections” requirement. Howard v. Secretary of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Plaintiff, an inmate incarcerated at the Southern Ohio Correctional Facility
(SOCF), brought this action pursuant to 42 U.S.C. §1983 for violation of his civil rights.
Plaintiff objects to the Magistrate Judge’s order denying Plaintiff’s Motion to
Compel the disclosure of documents in response to Plaintiff’s first, second and third
requests for production of documents, including the specific items plaintiff has identified
in his reply memorandum (See Doc. 70, at 2-3). The Magistrate Judge denied this
portion of Plaintiff’s Motion to Compel because Plaintiff did not respond to the objections
Defendants have made to Plaintiff’s document requests. The Court notes that Plaintiff
has yet to respond to Defendants’ objections (Doc. 63, PAGEID# 855-862; 867-868).
For instance, as to Request for Production of Document #16, Defendants state that
DVR footage for those dates does not exist. “A party cannot be compelled to produce
documents which do not exist or which it does not possess or control.” Tolliver v.
Liberty Mut. Fire Ins. Co., No. 2:06-cv-00904, 2008 WL 4951792, at *2 (S.D. Ohio Nov.
17, 2008). Therefore, the Court concludes that the Magistrate Judge did not err in
denying Plaintiff’s Motion to Compel the disclosure of documents.
Plaintiff also objects to the Magistrate Judge’s denial of sanctions under Federal
Rule of Civil Procedure 37 for the failure to respond to Plaintiff’s interrogatories. Plaintiff
maintains that Defendants should be sanctioned based on their delayed response to his
interrogatories and documents in response to his first, second and third requests for
production of documents.

The Magistrate Judge did not order sanctions because

2

Plaintiff has not incurred attorney fees in connection with Defendants’ failure to respond
to his interrogatories.

Moreover, the Court notes that sanctions are not warranted

where the plaintiff has not suffered prejudice as a result of the delay in the production of
discovery responses. Accord Giles v. Tate, 907 F. Supp. 1135, 1138 (S.D. Ohio 1995).
Accordingly, it is ORDERED that the March 2, 2018 Magistrate Judge’s R&R is
hereby ADOPTED.

Consistent with the recommendation by the Magistrate Judge,

Plaintiff’s Motion to Strike (Doc. 65) is DENIED; Plaintiff’s motion to compel (Doc. 63) is
GRANTED as to Plaintiff’s request for answers to interrogatories and DENIED as the
documents in response to Plaintiff’s first, second and third requests for production of
documents, including the specific items plaintiff has identified in his reply memorandum.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

3