Tolliver v. Collins et al

Filing 144

ORDER granting in part and denying in part 141 Motion for Sanctions and denying 141 Motion to Appoint Counsel. Defendants must produce RCI inmates' informal complaints, grievances, and appeals, with answers and resolutions to the same fr om July 2006 through July 2008 within Twenty-One days of the date of this Order. Defendants must produce a copy of any policy, procedure manual, or administrative rules that would have been operative between 2006 and 2009 relating to RCI's operation of its tobacco-free units within Twenty-One days of the date of this Order. The Court declines to award sanctions at this juncture. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/30/2011. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN A. TOLLIVER, et al.,
Plaintiffs,
Civil Action 2:08-cv-722
Judge Edmund A. Sargus, Jr.
Magistrate Judge E.A. Preston Deavers

v.

TERRY COLLINS, Director
O.D.R.C., et al.,
Defendants.

DISCOVERY ORDER
This is a civil rights action in which Plaintiff, Kevin A. Tolliver, an Ohio inmate
proceeding without the assistance of counsel, alleges that Defendants1 exposed him, against his
will, to secondhand smoke in violation of their rights under the Eighth and Fourteenth
Amendments to the United States Constitution. This matter is before the Court for consideration
Plaintiff’s Final Notice of Delinquent Discovery Request for Sanction and Request for
Appointment of Counsel. (ECF No. 141.) Through this Motion, Plaintiff seeks appointment of
counsel and an order compelling Defendants to respond to his discovery requests. For the
reasons that follow, Plaintiff’s Motion is GRANTED IN PART AND DENIED IN PART.

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Plaintiff Tolliver names in his Complaint the following Defendants in their individual
and official capacities: Terry Collins, Director of Ohio Department of Rehabilitation and
Correction (“ODRC”); Michael Sheets, Warden of Ross Correctional Institute (“RCI”); Charlene
Payne, RCI’s Unit Manager for Inmate Housing Facility Number Seven, which was a nonsmoking facility at the time this action was filed; and unnamed corrections officers and staff
members. (Tolliver Compl. ¶¶ 5, 13–17, 32.)

I.

BACKGROUND

On August 6, 2008, Plaintiff filed this action alleging that he was involuntarily exposed
to secondhand smoke even though he was housed in a “Tobacco Free Housing” unit at RCI, Unit
7A. Plaintiff alleges that Defendants’ deliberate indifference resulted in his injury and subjected
him to risk of violence from inmates who smoked in his unit and in the common areas.
According to Plaintiff, he and other inmates complained about the secondhand smoke for two
years prior to filing this action.
On August 21, 2009, Plaintiff submitted discovery requests to Defendants, including
requests for production of documents. After Defendants ignored Plaintiff’s requests, he moved
to compel their responses on November 4, 2009. (ECF No. 65.) Defendants advanced several
reasons why they contended Plaintiff’s motion to compel should be denied, all of which the
Court rejected in its July 7, 2010 Order. (ECF No. 97.) The Court rejected Defendants’
assertion that the requested documents were burdensome and would breach the privacy and
security of the institution because Defendants failed to support these conclusory arguments with
specific examples. Following the Court’s July 7, 2010 Order, Defendants responded to
Plaintiff’s discovery requests, but refused to fully respond to two of Plaintiff’s document
requests, again objecting on the grounds that the requested information was burdensome, lacked
relevance, and breached institutional safety and security.
In the subject Motion, Plaintiff again moves to compel Defendants’ responses to two of
his August 21, 2009 requests for production of documents. Specifically, Plaintiff asserts that
Defendants failed to fully respond to his request for copies of all RCI smoking related informal
complaints and grievances and his request for administrative rules and procedures for each of

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ODRC’s institutions. Defendants oppose Plaintiff’s Motion. With regard to the first request,
Defendants again assert that the request is burdensome and breaches institutional safety and
security. Defendants explain that approximately 700 informal complaints and 200 grievances are
filed at RCI each year. Defendants also add that Plaintiff’s first requests is overbroad because
Plaintiff seeks documentation going back as far as 2001, far outside the timeframes of the claims
in this action. With regard to the second request, Defendants argue that insofar as Plaintiff seeks
copies of policies from institutions other than RCI, his request is overbroad and lacks relevance.
Defendants also note that their present counsel was not involved in this case until March 2011
and was unaware of any pending discovery issues until Plaintiff filed the instant Motion.
II.
A.

DISCUSSION

Plaintiff’s Request for Appointment of Counsel
At this juncture, Plaintiff’s request for appointment of counsel is DENIED WITHOUT

PREJUDICE to refiling following the disposition of dispositive motions, if any. A plaintiff
does not have a constitutional right to counsel in a civil action. Lavado v. Keohane, 992 F.2d
601, 605–06 (6th Cir. 1993) (citation omitted). Although the Court has the statutory authority to
appoint counsel in civil cases under 28 U.S.C. § 1915(e), the exercise of this authority is limited
to extraordinary situations. Id. at 606. The Court has evaluated whether such exceptional
circumstances exist in this case, and has determined that the appointment of counsel is not
warranted at this juncture.
B.

Plaintiff’s Request for and Order Compelling Production
Plaintiff has moved the Court for an order compelling Defendant to respond to two of his

requests for production of documents. Federal Rule of Civil Procedure 37 permits a party to

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move for an order compelling disclosure or discovery. Determining the scope of discovery is
within this Court’s discretion. Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). As
the United States Court of Appeals for the Sixth Circuit has recognized, “[t]he scope of
discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Lewis v. ACB
Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998). In particular, discovery is more liberal than
the trial setting, as Rule 26(b) allows any “line of interrogation [that] is reasonably calculated to
lead to the discovery of admissible evidence.” Id. (quoting Mellon v. Cooper-Jarrett, Inc., 424
F.2d 499, 501 (6th Cir. 1970)). In other terms, the Court construes discovery under Rule 26
“broadly to encompass any matter that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 (1978). In considering the scope of discovery, the Court may balance a
plaintiff’s “right to discovery with the need to prevent ‘fishing expeditions.’” Conti v. Am. Axle
and Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367).
With regard to Plaintiff’s request for production of copies of all RCI smoking-related
informal complaints and grievances, Plaintiff’s Motion to Compel is GRANTED IN PART
AND DENIED IN PART. The Court previously rejected Defendants’ objections concerning
institutional safety and security in its July 7, 2010 Order. The Court concluded that the
requested documentation was relevant and that to the extent production of other inmates’
complaints and grievances posed a security or privacy risk, Defendants could simply redact any
identifying information. (See ECF No. 97 at 12.) Defendants raise no new arguments relating to
institutional safety and security that persuade the Court to deviate from its prior holding. The
Court does, however, agree with Defendants’ newly-raised overbreadth arguments. Because this

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lawsuit concerns Defendants’ actions from July 2006 through July 2008, inmate grievances and
complaints relating to smoking filed outside of these dates would not bear on or lead to other
evidence bearing on any issue presented in the instant case. Thus, Plaintiff’s request is
overbroad in that it seeks this information from January 2001 through the present. The Court
therefore NARROWS the scope of Plaintiff’s request such that Defendants must produce RCI
inmates’ informal complaints, grievances, and appeals, with answers and resolutions to the same
from July 2006 through July 2008 WITHIN TWENTY-ONE DAYS OF THE DATE OF
THIS ORDER. As set forth above, Defendants may redact any identifying information that
they believe may compromise institutional security or inmate safety.
With regard to Plaintiff’s request for copies of policies from institutions other than RCI,
the Court agrees with Defendants’ assertion that his request is overbroad and lacks relevance.
According to Plaintiff, however, he has not yet received a copy of RCI’s policies, procedures,
and administrative rules relating RCI’s operation of the tobacco-free units. Instead, he asserts
that he has only received ODRC’s policy. Clearly, RCI’s policies, procedures, and rules
concerning the operation of its tobacco-free units are relevant to the instant action. Accordingly,
with regard to the second request at issue, Plaintiff’s Motion is GRANTED IN PART AND
DENIED IN PART. Defendants must produce a copy of any policy, procedure manual, or
administrative rules that would have been operative between 2006 and 2009 relating to RCI’s
operation of its tobacco-free units WITHIN TWENTY-ONE DAYS OF THE DATE OF
THIS ORDER.

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III.

DISPOSITION

For the reasons set forth above, Plaintiff’s Final Notice of Delinquent Discovery Request
for Sanction and Request for Appointment of Counsel is GRANTED IN PART AND DENIED
IN PART. (ECF No. 141.) Plaintiff’s request for appointment of counsel is DENIED. His
request to compel production of documents is DENIED IN PART AND GRANTED IN PART.
Defendants must produce RCI inmates’ informal complaints, grievances, and appeals, with
answers and resolutions to the same from July 2006 through July 2008 WITHIN TWENTYONE DAYS OF THE DATE OF THIS ORDER. Defendants may redact any identifying
information that they believe may compromise institutional security or inmate safety from these
documents. Likewise, Defendants must produce a copy of any policy, procedure manual, or
administrative rules that would have been operative between 2006 and 2009 relating to RCI’s
operation of its tobacco-free units WITHIN TWENTY-ONE DAYS OF THE DATE OF
THIS ORDER. The Court declines to award sanctions at this juncture.
IT IS SO ORDERED.
Date: December 30, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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