Moore v. Morgan et al

Filing 47

ORDER denying plaintiff's 34 Motion to Compel and 35 Motion for clarification. Defendants' 44 Motion to Stay is Denied. The discovery deadline is extended to 12/8/2017 and the dispositive motion deadline is extended to 1/8/2018. Signed by Magistrate Judge Karen L. Litkovitz on 9/8/2017. (art)(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
JOHN C. MOORE,
Plaintiff,

Case No. 1:16-cv-655
Dlott, J.
Litkovitz, M.J.

vs.
DONALD MORGAN, et al.,
Defendants.

ORDER

Plaintiff, an inmate at the Ohio State Penitentiary (OSP) in Youngstown, Ohio, who is
proceeding pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983
alleging a violation of his civil rights during his incarceration at the Southern Ohio Correctional
Facility (SOCF). This matter is before the Court on plaintiff’s motion to compel (Doc. 34),
defendants’ response in opposition to the motion and request to strike plaintiff’s exhibits attached
to the motion (Doc. 37) and plaintiff’s replies (Docs. 40, 41); plaintiff’s “Motion of Clarification”
(Doc. 35); and defendants’ motion to stay the dispositive motion deadline (Doc. 44).
In his motion to compel filed on May 8, 2017, plaintiff alleges that personnel at SOCF
and the Ohio Department of Rehabilitation and Correction (ODRC) are not cooperating with
defendants’ counsel and have refused to turn over documentation and video footage related to the
incidents giving rise to the complaint.

(Doc. 34).

Plaintiff contends that the evidence he has

not been provided consists of Daily Activity Sheets, a porter list, audio and video recordings and
use of force reports, other video and DVR footage, information regarding his cell locations and
dates, and the first and last names of correctional officers who worked on the J-2 unit from April
10 through April 17, 2014.

Plaintiff alleges that he has “made a second request to counsel” but

has “not heard back yet.” (Id. at 3).

Plaintiff seeks an order compelling full compliance with

his discovery requests.

Plaintiff has attached a copy of the Court’s screening Order and Report

and Recommendation (Doc. 5) to the motion to compel, a discovery request dated April 5, 2017, a
copy of a letter to defendants’ counsel from that same date regarding plaintiff’s discovery requests,
and a copy of an ODRC Use of Force policy referenced in the letter. (Docs. 34-1, 34-2, 34-3).
In his “Motion of Clarification” filed on May 18, 2017, plaintiff asserts that defense
counsel has attempted to provide full discovery but the State of Ohio, and specifically personnel
at the ODRC, have not been cooperative.

(Doc. 35).

Plaintiff alleges that defense counsel was

able to provide some discovery after further efforts, but plaintiff still has not been provided with
the following information: his cell location from April 10, 2014 through April 18, 2014; the
porter roster and “current locations”; the first names of correctional officers in J-2; all DVD
recordings and videos; disciplinary files of all defendant officers; prior federal case history, if
any, for all named defendants; Investigator Miller’s video and audio recordings, notes and
reports; and use of force audio and video recordings and reports.

(Doc. 35).

Plaintiff has

attached to the motion information he has apparently compiled from discovery that has been
provided to him.

(Id.).

Defendants oppose plaintiff’s motion to compel.

(Doc. 37).

Defendants allege that

plaintiff has not included with his motion a certification that he attempted to resolve this
discovery dispute without Court involvement as required by the Federal and Local Rules.
Defendants further allege that the motion is moot.

(Id. at 2-3).

They state that plaintiff has

been given an opportunity to view all video evidence that defendants have obtained in response
to his discovery requests.
General’s Office, ¶¶ 7, 8).

(Id., citing Affidavit of Linda Hill, Paralegal, Ohio Attorney
Defendants further state that plaintiff has been given the applicable
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Use of Force report, Daily Activity Sheets, the first names and schedules of ODRC employees,
and his history of cell assignments.

(Id. at 3, citing Hill Affidavit, ¶¶ 9, 11-12).

Defendants

allege that ODRC is not in possession of the porter list and other video evidence requested by
plaintiff and this information therefore cannot be provided to him.

(Id., ¶ 8, 10).

In reply, plaintiff outlines the extrajudicial efforts he has made to resolve his discovery
disputes with defendants.

(Docs. 40, 41).

Plaintiff alleges he sent several letters, filed

motions, and had a telephone conversation about outstanding discovery.
ODRC policies mandate that certain reports and information be preserved.

Plaintiff alleges that
(Doc. 40).

Plaintiff alleges that because this information must be preserved, representations by defendants
that the discovery he seeks no longer exists are false.

Plaintiff claims that the material in his

possession was initially intentionally withheld from him and that the remaining information he
seeks continues to be intentionally withheld.
appointment of counsel.

(Id.).

Plaintiff renews his request for the

In his second reply, plaintiff states that defendants have sent him two

DVDs, seven photos, and three separate batches of requested information, including the full
names of all defendants.

(Doc. 41).

Fed. R. Civ. P. 37 provides that “[a] party seeking discovery may move for an order
compelling an answer, designation, [or] production” if a party fails to provide discovery responses.
Fed. R. Civ. P. 37(a)(3)(B). Rule 37 requires that motions to compel discovery must include a
certification that extrajudicial attempts have been made to secure responses to discovery
requests.

Rule 37(a)(1) provides: “On notice to other parties and all affected persons, a party

may move for an order compelling disclosure or discovery.”

Fed. R. Civ. P. 37(a)(1).

Such a

motion “must include a certification that the movant has in good faith conferred or attempted to
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confer with the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.”

Id.

Similarly, S.D. Ohio Civ. R. 37.1 provides that motions 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. . . .” Thus, both the Federal Rules of Civil Procedure and the Local Rules of this
Court require “counsel to meet and confer to resolve differences as to discovery disputes.”
Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-cv-116, 2010 WL 1445171,
at *2 (S.D. Ohio April 12, 2010) (citing Fed. R. Civ. P. 37(a)(1); S.D. Ohio Civ. R. 37.1).
Initially, the Court will deny defendants’ request to strike exhibits from plaintiff’s motion
to compel pursuant to Fed. R. Civ. P. 12(f).
309-320).

(Doc. 37 at 3, citing Doc. 34 at PAGEID#:

Rule 12(f) allows the Court to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter” either on its own or on motion made
by a party either before responding to the pleading or within days after being served with the
pleading if a response to the pleading is not allowed.

Fed. R. Civ. P. 12(f).

Rule 12(f) does

not authorize the Court to strike exhibits from a motion to compel.
The Court will also deny plaintiff’s motion for an order compelling defendants to respond
to his discovery requests under Fed. R. Civ. P. 37.

Plaintiff has sufficiently complied with the

requirements of the Federal Rules of Civil Procedure and the Local Rules of this Court by
showing he conferred with defendants’ counsel and attempted to resolve this discovery dispute
without the Court’s intervention before filing his motion to compel.

However, plaintiff’s

allegations that defendants have refused to comply with his discovery requests are not
substantiated by the record.

Defendants state they have sought the requested documentation,
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information, and video recordings from staff at ODRC, OSP, SOCF, the Ohio State Highway
Patrol investigation unit, and the Office of the Scioto County, Ohio Prosecutor – Criminal
Division.

(Doc. 37 at 2-3; Doc. 37-1, Hill Affidavit, ¶¶ 6-8).

Defendants state that plaintiff

has been provided with all available discovery and they have been informed there is no
additional information requested by plaintiff in the possession of these agencies.
Doc. 37-1, Hill Affidavit, ¶¶ 7-13).

(Doc. 37 at 3;

Plaintiff has not submitted any evidence that calls into

question the veracity of defendants’ statements, and he acknowledges that defendants have
produced certain information he has requested.
plaintiff’s motion to compel.

(Docs. 40, 41).

The Court will therefore deny

Plaintiff’s renewed request for the appointment of counsel is

denied for the reasons stated in the Court’s Order denying plaintiff’s previous motion for
appointment of counsel.

(See Doc. 12).

Defendants have filed a motion to stay the dispositive motion deadline in light of
plaintiff’s filing of an amended complaint that names additional defendants on May 18, 2017.
(Doc. 44).

The Court will not stay the deadline but instead will extend the discovery and

dispositive motion deadlines.

IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s motion to compel (Doc. 34) and “Motion of Clarification” (Doc. 35) are

DENIED.
2.

Defendants’ motion to stay the dispositive motion deadline (Doc. 44) is DENIED.

3.

The discovery deadline is extended to December 8, 2017 and the dispositive motion

deadline is extended to January 8, 2018.

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Date: 9/8/2017

s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

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