Whiteside v. Collins et al

Filing 148

ORDER and REPORT AND RECOMMENDATIONS re 117 MOTION for Summary Judgment: The Magistrate Judge RECOMMENDS that Defendants' (Lambert, willingham, Terrill, Perry, Stanley, Gossard, Collins, Clark, Lazaroff, Haskins, Workman) Motion for Summary Ju dgment be DENIED without prejudice to refiling within 30 days of the date of this entry. Plaintiff's 138 MOTION to Compel Discovery is DENIED. Defendants' Collins and Lazaroff are ORDERED to respond to Plaintiff's discovery requests attached to the Motion to Compel within ten (10) days of the date of this entry. Plaintiff's, attached as exhibit to 140 , Motion for Additional Extension of Time is DENIED as moot. Objections to R&R due within fourteen days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 3/12/2012. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NORMAN V. WHITESIDE,
Plaintiff,
vs.

Civil Action 2:08-CV-875
Judge Graham
Magistrate Judge King

TERRY COLLINS, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
The only claims remaining in this action are those of plaintiff
Norman V. Whiteside, a state inmate proceeding without the assistance
of counsel, who alleges thatunder Ohio Admin.Code § 5120-9-06, Rules
(C)(28), (50) and (51), are vague and lack fair notice.
Order, Doc. No. 66.

Opinion and

This matter is before the Court on Defendants’

(Lambert, Willingham, Terrill, Perry, Stanley, Gossard, Collins,
Clark, Lazaroff, Haskins, Workman) Motion for Summary Judgment, Doc.
No. 117 (“Motion for Summary Judgment”), Plaintiff’s Motion to Compel
Discovery, Doc. No. 138 (“Motion to Compel”), and Plaintiff’s Motion
for Additional Extension of Time, attached as an exhibit to Doc. No.
140 (“Motion for Extension”).
I.

BACKGROUND
In order to properly address the motions currently before this

Court, it is necessary to provide a detailed summary of the procedural
history of this case.

Defendants previously moved for judgment on the

pleadings, arguing inter alia that plaintiff’s remaining claims cannot
proceed in this Court because he filed a prior action in the Ohio

Court of Claims based on the same acts and omissions.

Doc. No. 83, p.

2 (citing, inter alia, Leaman v. Ohio Dep’t of Mental Retardation &
Dev. Disabilities, 825 F.2d 946, 951-52).

It was initially

recommended that, after converting defendants’ motion for judgment on
the pleadings to a motion for summary judgment, plaintiff’s claims
should be dismissed.

Report and Recommendation, Doc. No. 103.

In his

objections to that recommendation, plaintiff argued that he had no
notice of the conversion of defendants’ motion to one for summary
judgment and that there was no identification of what acts or
omissions in the Court of Claims action were the same as those in the
instant action.

Doc. No. 105.

Defendants did not respond to

plaintiffs’ objections.
On January 19, 2011, the Court, in an excess of caution, denied
without prejudice defendants’ motion for judgment on the pleadings.
Opinion and Order, Doc. No. 106, p. 4.

However, the Court permitted

the parties to file, if they chose to do so, any motions for summary
judgment no later than January 31, 2011.

Id.

Noting that plaintiff

had sought additional time to conduct discovery in order to respond to
defendants’ motion, the Court observed that plaintiff’s request failed
to comply with Fed. R. Civ. P. 56(d) and detailed the particular
requirements of that rule.

Id. at 4-5.

Despite this deficiency, the

Court permitted the parties to conduct limited discovery should a
motion for summary judgment be filed.

Id. at 5.

Specifically, the

parties were given “60 days from the date a motion for summary
judgment is filed in order to conduct discovery and to respond to that
motion.”

Id.

In so ordering, the Court specifically advised the

parties that “any discovery requests shall be limited to the matters
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raised in the newly filed dispositive motion(s) and limited to the
extent necessary to respond to the motion(s).”

Id.

The deadline for filing motions for summary judgment passed and
no parties filed a motion.

On March 1, 2011, the Court ordered the

parties to report on the status of the case.

Order, Doc. No. 107.

On March 11, 2011, defendants filed a motion for leave to file a
motion for summary judgment, attaching the proposed motion for summary
judgment and representing that the deadline for filings motions for
summary judgment “was inadvertently not calendared by Defendants and
so was missed.”

Doc. No. 109, p. 1.

Failing to explain why they were

not monitoring this case between January 19, 2011 and March 1, 2011,
defendants simply offered that their “error [in missing the filing
deadline] became apparent upon receipt of another Order received last
week directing that a status report be filed.”

Id.

Nevertheless, the

Court granted defendants’ unopposed motion for an extension of time
and directed the Clerk to file defendants’ motion for summary
judgment.

Order, Doc. No. 116.

In accordance with the prior Opinion

and Order, Doc. No. 106, the Court ordered that “plaintiff has until
July 18, 2011 to complete any discovery necessary to enable him to
respond to the motion for summary judgment and to file his response to
the motion.

Defendant may reply within rule.”

Id.

On June 1, 2011, plaintiff filed a notice that he served
discovery requests on defendants on May 27, 2011.

Doc. No. 118.1

On

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Failing again to track case deadlines, defendants initially moved to
strike plaintiff’s notice as untimely, arguing that all discovery was to have
been “completed on or before August 31, 2010.” Doc. No. 119, p. 2. However,
defendants later conceded that they were mistaken about the discovery
deadline. Doc. No. 123, p. 1. Defendants admitted that they had “overlooked”
the deadline contained in the Court’s prior order, Doc. No. 116, which

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July 6, 2011, plaintiff filed a motion for an extension of time in
which to respond to defendants’ motion for summary judgment,
representing that defendants had not responded to his discovery
requests.

Doc. No. 120.

On July 8, 2011, defendants filed a motion

for an extension of time in order to respond to discovery requests
directed at defendants Trevor Clark and D. Lambert.

Doc. No. 122.

In

support of that request, defendants stated that their counsel had
“overlooked this Court’s Order of May 20, 2011 (Doc. 116) which
extended Plaintiff’s discovery deadline until July 18, 2011, [and]
believed in error that the time period for discovery had expired.”
Id. at 2.

Defendants also represented that they did not oppose

plaintiff’s request for additional time to respond to the motion for
summary judgment.

Id.

On August 2, 2011, plaintiff filed a notice that he had served
discovery responses on not only defendants Lambert and Clark, as
represented in defendants’ motion for extension, Doc. No. 122, but
also on defendants Collins, Haskins, and Lazaroff.

Doc. No. 125.

In

response to this notice, defendants filed the following notice:
“Defendants’ counsel did locate a discovery request that was sent to
Defendant Melody Haskins.
provided.

A response to this request has been

However, the undersigned cannot locate requests for

Defendants Collins and Lazaroff.

If copies of these requests are

forwarded, the Defendants will respond to the requests.”

Doc. No.

126.
On September 2, 2011, the Court granted the parties’ motions for

extended discovery into July 2011. Doc. No. 123, p. 1.
defendants’ motion to strike. Order, Doc. No. 130.

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The Court denied

extensions of time, Doc. Nos. 120 and 122.

Order, Doc. No. 130.

Specifically, the Court ordered that “[t]o the extent that defendants
have not yet responded to plaintiff’s discovery requests, they shall
do so within fourteen (14) days.” Id. at 1.

Plaintiff was given until

October 6, 2011 to respond to defendants’ motion for summary judgment.
Id.
On September 23, 2011, plaintiff filed another motion for
extension of time to respond to the motion for summary judgment,
representing inter alia that “Defendants have failed to respond to
outstanding discovery requests” although defendant Haskins “recently
gave responses in part.”

Doc. No. 133, p. 2.

The Court granted

plaintiff’s motion, ordering that he may respond to the motion for
summary judgment no later than October 21, 2011.

Order, Doc. No. 134.

Thereafter, on October 31, 2011, plaintiff filed the current
Motion to Compel, seeking to compel discovery responses from
defendants Collins and Lazaroff.
also filed the current

Motion to Compel, p. 1.

Plaintiff

Motion for Extension, seeking additional time

in which to respond to the Motion for Summary Judgment.

The Court

will address each motion in turn.
II.

MOTION TO COMPEL
In his Motion to Compel, plaintiff represents that he attempted

to confer with defense counsel prior to filing the motion.

Id. at 1

(citing Exhibit AAA attached thereto, which is a fax cover sheet dated
August 4, 2011, but bearing a transmittal date of August 8, 2011).
Noting that defendants previously stated that they had not received
discovery requests for defendants Collins and Lazaroff, plaintiff

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swore under penalty of perjury that “all requests were mailed
simultaneously on May 27, 2011.”

Id. (citing copies of discovery

requests attached thereto, which include certificates of service dated
May 27, 2011).

Plaintiff further represents that the requested

discovery “is especially necessary in order to effectively respond to
defendants’ motion for summary judgment.”

Id.

Defendants oppose the Motion to Compel, arguing that (1) they
have not received any communication from plaintiff since they advised
him on August 12, 2011 that they had not received copies of discovery
requests directed to defendants Collins and Lazaroff, and (2) “this
issue [the Motion to Compel] is now moot” because the deadline to
respond to the Motion for Summary Judgment, October 21, 2011, has now
passed.

Doc. No. 139, p. 1 (citing Doc. No. 126).

In reply,

plaintiff argues, inter alia, that defendants Collins and Lazaroff
were in fact served with discovery requests and have not explained how
responding to the discovery requests would prejudice them.
140, pp. 1-2.2

Doc. No.

In a later file status report, these defendants again

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Plaintiff also complains that, to the extent that defendants have
responded to certain document requests (apparently directed at defendants
other than Collins and Lazaroff), they produced “doctored up” documents. Doc.
No. 140, p. 2 (citing to, inter alia, Exhibit A, attached thereto, which is a
document marked “T000007,” and which is dated September 13, 2006, on
letterhead listing John R. Kasich as Governor and Gary C. Mohr as Director).
Defendants concede an error in production, acknowledging that they “produced
an inaccurate copy of a document due to a printing oversight[.]” Doc. No. 1411, p. 1. However, defendants insist that the contents of the letter are
accurate and were previously produced to plaintiff, and that the error results
in no prejudice to plaintiff. Id. at 1-2.
The Court further notes that plaintiff has sued defendant Terry Collins,
former director of the Ohio Department of Rehabilitation and Correction
(“ODRC”) in his individual and official capacities. Complaint, Doc. No. 4, ¶
3. Gary C. Mohr is the current ODRC director. See, e.g., Exhibit A, attached
to Doc. No. 140; Declaration of Trevor Clark, ¶¶ 4-5, Doc. No. 141-2.
Accordingly, to the extent that plaintiff asserts claims against the ODRC
director in his official capacity, current director Mohr has been
automatically substituted in place of former director Collins pursuant to Fed.

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assert that they did not receive discovery requests and, therefore,
did not respond to any requests.

Doc. No. 146, pp. 1-2.

Plaintiff

agrees that these defendants have provided no responses to his
previously served discovery requests.

Doc. No. 147, p. 3.

Determining the proper scope of discovery falls within the broad
discretion of the trial court.

Lewis v. ACB Business Servs., Inc.,

135 F.3d 389, 402 (6th Cir. 1998).

Rule 37 authorizes a motion to

compel discovery when a party fails to provide a response to
interrogatories under Rule 33 or requests for production of documents
under Rule 34.

Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).

Therefore, a

party cannot successfully move for an order compelling documents if
this information was not first requested through Rule 33 or Rule 34.
See id. (permitting a party to

move for an order compelling

production when a party fails to respond to an interrogatory pursuant
to Rule 33 or to a request pursuant to Rule 34); McDermott v.
Continental Airlines, Inc., No. 08-3557, 339 Fed. Appx. 552, at *560
(6th Cir. July 30, 2009) (finding no abuse of discretion in denying
motion to compel where moving party did not request documents pursuant
to Rule 34); Nilavar v. Mercy Health Sys. - Western Ohio, 210 F.R.D.
597, 610 (S.D. Ohio 2002) (“However, Rule 34 is the formal mechanism
by which documents are to be requested, and Plaintiff’s Motion to
Compel Discovery is only viable as to documents requested by that
method.”).
Finally, the party moving to compel discovery must certify that
he “has in good faith conferred or attempted to confer with the person

R. Civ. P. 25(d).

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or party failing to make disclosure or discovery in an effort to
obtain it without court action.”

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

See also

S.D. Ohio Civ. R. 37.2. The Court is satisfied that plaintiff has met
this prerequisite.

See Motion to Compel, p. 1 (containing Rule 37

certification).
After reviewing the record, it is unclear whether defendants
Collins and Lazaroff were served with discovery requests.

Because of

this ambiguity in the present record, the Court cannot grant the
current Motion to Compel.

See Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv);

McDermott, 339 Fed. Appx. 552, at *560.
However, the record is absolutely clear that defendants have
failed to attend to this litigation and that this failure has impeded
the progress of this case.

For example, as detailed above, defendants

have ignored important case deadlines (deadlines for filing motions
for summary judgment and for completing discovery) and filed a
meritless motion to strike based on their failure to record the
correct discovery deadline.

In addition, defendants themselves

significantly added to the ambiguity of service of the instant
discovery requests.

As plaintiff points out, defendants first

represented that they received requests directed only to defendants
Lambert and Clark, Doc. No. 122, but then later conceded that a
discovery request sent by plaintiff to defendant Haskins had been
located. Doc. No. 126.

Defense counsel further represented that he

“cannot locate requests for Defendants Collins and Lazaroff.”

Doc.

No. 126, p. 1. In light of the procedural history of this case, it is
unclear whether counsel’s claimed inability to locate these requests
is a result of his failure to properly maintain these documents or a
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result of a defect in service.

Regardless, the above procedural

recitation demonstrates that defendants have not accorded to this case
the attention that the Court expects.

This inattention has unduly

delayed the progress and resolution of this case.

Simply put, the

Court will not tolerate defendants’ continued inattention to the
litigation.
To this end, the Court notes that defendants have now been in
possession of copies of the discovery requests directed at defendants
Collins and Lazaroff since at least October 31, 2011 when plaintiff
filed the Motion to Compel.

The Court previously provided plaintiff

the opportunity to conduct discovery necessary to formulate his
response to a motion for summary judgment.

See Opinion and Order,

Doc. No. 106, pp. 4-5 (providing the parties “60 days from the date a
motion for summary judgment is filed in order to conduct discovery and
to respond to that motion”); Order, Doc. No. 116 (ordering that
plaintiff “may complete any discovery necessary to enable him to respond
to the motion for summary judgment and to file his response to the motion”
no later than July 18, 2011).

In light of these prior orders, the Court

concludes that plaintiff is entitled to limited discovery to enable
him to respond to a motion for summary judgment.

Therefore,

notwithstanding that the Court must DENY the Motion to Compel,
defendants Collins and Lazaroff are nevertheless ORDERED to respond to
the discovery requests attached to the Motion to Compel within ten
(10) days of the date of this Order and Report and Recommendation.
so ordering, the Court specifically ADVISES defendants Collins and
Lazaroff that hypertechnical responses or “inaccurate” responses to
these requests due to “oversight” will not be tolerated.
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In

III. MOTION FOR SUMMARY JUDGMENT
Because this Court has provided additional time for limited
discovery, it is RECOMMENDED that the Motion for Summary Judgment be
DENIED without prejudice to refiling within 30 days of the date of
this Order and Report and Recommendation.

Defendants are REMINDED

that any renewed motion for summary judgment must clearly articulate
legal arguments and provide detailed evidentiary support rather than
conclusory arguments based on boilerplate language.
IV.

MOTION FOR EXTENSION
Plaintiff attaches the Motion for Extension to his reply in

support of his Motion to Compel, Doc. No. 140, seeking additional time
to respond to the Motion for Summary Judgment.

Plaintiff represents

that he submitted the Motion for Extension at the same time he
submitted the Motion to Compel.

Doc. No. 140, p. 1.

In light of the

additional time provided for discovery and the recommended misposition
of the Motion for Summary Judgment, plaintiff’s Motion for Extension
is DENIED as moot.
The Court notes, however, that the Motion for Extension did not
comply with the requirements of Fed. R. Civ. P. 56(d).

Rule 56(d),

formerly Rule 56(f), requires the party who concludes that additional
discovery is necessary in order to respond to a motion for summary
judgment to provide an affidavit or declaration in support of the
request for additional time.

The affidavit required by the rule must

“indicate to the district court [the party’s] need for discovery, what
material facts it hopes to uncover, and why it has not previously
discovered the information.”

Cacevic v. City of Hazel Park, 226 F.3d

10

483, 488 (6th Cir. 2000)(citing Radich v. Goode, 866 F.2d 1391,
1393-94 (3d Cir. 1989).

A motion under Rule 56(d) may be properly

denied where the requesting party “makes only general and conclusory
statements regarding the need for more discovery,” Ball v. Union
Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (citing Ironside v.
Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the
affidavit “lacks ‘any details' or ‘specificity.’”

Id. (quoting Emmons

v. McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)).
Notwithstanding this Court’s prior lenience related to this pro
se plaintiff’s failure to comply with Rule 56(d), see, e.g., Opinion
and Order, Doc. No. 106, plaintiff is specifically ADVISED that he
must comply with that rule, if applicable, in all future filings.
Stated differently, the Court will no longer overlook any failure on
plaintiff’s part to comply with the requirements of Rule 56(d) should
plaintiff request any future extension of time to respond to a renewed
motion for summary judgment based on a need for additional discovery.
WHEREUPON, in sum, Plaintiff’s Motion to Compel Discovery, Doc.
No. 138, is DENIED.

Notwithstanding this denial, however, defendants

Collins and Lazaroff are ORDERED to respond to plaintiff’s discovery
requests attached to the Motion to Compel within ten (10) days of the
date of this Order and Report and Recommendation.
Plaintiff’s Motion for Additional Extension of Time, attached as
an exhibit to Doc. No. 140, is DENIED as moot.
It is RECOMMENDED that Defendants’ (Lambert, Willingham, Terrill,
Perry, Stanley, Gossard, Collins, Clark, Lazaroff, Haskins, Workman)
Motion for Summary Judgment, Doc. No. 117, be DENIED without prejudice

11

to refiling within 30 days of the date of this Order and Report and
Recommendation.

The Court specifically ADVISES defendants, who have

previously overlooked filing deadlines, to calendar this date.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections must

be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation
of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United
States v. Walters, 638 F.2d 947 (6th Cir. 1981).

March 12, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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