Whiteside v. Collins et al

Filing 173

OPINION AND ORDER Plaintiffs Motion for extension and for additionaldiscovery Per FRCVP 56(d) Doc. # 148 , Doc. No. 160 , is DENIED. The Court notes, however, that a separate motion, Doc. No. 153 , remains pending in part , which may impact briefing on defendants motion for summary judgment, Doc. No. 157 . Once that motion, Doc. No. 153 , is fully resolved, the Court will establish a briefing schedule on defendants motion for summary judgment. Signed by Magistrate Judge Norah McCann King on 6/22/12. (rew)

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.

OPINION AND ORDER
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 that 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 Plaintiff’s

Motion for Extension and for Additional Discovery Per FRCVP 56(d)/Doc.
#148, Doc. No. 160 (“Rule 56(d) Motion”).
I.

BACKGROUND
On March 12, 2012, this Court ordered defendants Collins1 and

Lazaroff to respond to plaintiff’s discovery requests, advising that
hypertechnical or inaccurate responses due to “oversight” would not be
tolerated.

Order and Report and Recommendation, p. 9.

The

undersigned also recommended that defendants’ motion for summary

1
As this Court previously noted, Gary C. Mohr is the current ODRC
director and, 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.
R. Civ. P. 25(d). Order and Report and Recommendation, Doc. No. 148, p. 6
n.2.

judgment be denied without prejudice to refiling.

Id. at 10.2

The

Court also detailed the requirements under Fed. R. Civ. P. 56(d) and
noted that plaintiff’s request for additional time and discovery to
respond to the motion for summary judgment did not comply with that
rule.

Id. at 10-11.

In so doing, the Court specifically advised

plaintiff that he must comply with Rule 56(d), if applicable, in any
future request.

Id. at 11. (“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.”).
On April 9, 2012, defendants filed another motion for summary
judgment,

Doc. No. 157, and plaintiff filed the current Rule 56(d)

Motion, seeking additional time in which to conduct additional
discovery before responding to the motion for summary judgment.
Defendants oppose the Rule 56(d) Motion, Doc. No. 163.

With the

filing of plaintiff’s reply on May 31, 2012, Doc. No. 167, this matter
is ripe for resolution.
II.

STANDARD
Rule 56(d), formerly Rule 56(f), establishes the proper procedure

to be followed when a party concludes that additional discovery is
necessary to respond to a motion for summary judgment:
When Facts Are Unavailable to the Nonmovant. If a nonmovant
shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) defer considering the motion or deny it;

2

This recommendation was adopted and affirmed on April 4, 2012.
Doc. No. 156.

2

Order,

(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).

The affidavit or declaration 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 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)).
The importance of complying with Rule 56(d) cannot be over-emphasized.
Cacevic, 226 F.3d at 488.

Finally, whether or not to grant a request

for additional discovery falls within the trial court’s discretion.
Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).
III. DISCUSSION
In this case, plaintiff offers his declaration, executed under
penalty of perjury, as to the need for additional discovery.
160, pp. 2-3.

Doc. No.

Under 28 U.S.C. § 1746, unsworn declarations have the

same force and effect as a sworn affidavit only if “subscribed by [the
declarant], as true under penalty of perjury, and dated, in
substantially the following form: . . . ‘I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true
and correct.

Executed on (date).

(Signature).’”
3

28 U.S.C. §

1746(2).

Although plaintiff’s declaration is made under penalty of

perjury, it is not dated.3

This failure violates the strict

requirements of Section 1746 and the Court therefore need not consider
this defective declaration.

See, e.g., Bonds v. C.W. Cox, 20 F.3d

697, 702 (6th Cir. 1994) (excluding from consideration affidavits that
were subscribed under penalty of perjury, but were undated).

Having

failed to offer a proper declaration to support his Rule 56(d) Motion,
plaintiff has not complied with Rule 56(d).

As discussed supra, the

Court previously warned plaintiff that it would no longer overlook his
failures to comply with that rule.
Recommendation, p. 11.4

Order and Report and

Accordingly, plaintiff’s unsupported Rule

56(d) Motion is without merit.
Even considering the substance of the Rule 56(d) Motion, however,
plaintiff’s request for additional time in which to conduct discovery
is nevertheless without merit.

In complaining that defendants Collins

and Lazaroff “failed to adequately respond to material
interrogatories[,]” plaintiff identifies only Interrogatory No. 7
directed to these defendants.

Interrogatory No. 7 seeks the following

information:
Please state the specific conduct and/or action(s) and/or
inaction(s) which you or any of your co-defendants in this
case are alleged to have committed in Court of Claims Case
Number 2007-07621 and 2009-05731 which is the exact same
conduct and/or action(s) and/or inaction(s) which you or any

3

The only date that plaintiff provides in his Rule 56(d) Motion appears
in the certificate of mailing, not in the declaration. Rule 56(d) Motion, p.
3.
4

Indeed, in light of the Court’s specific warning and considering
plaintiff’s extensive litigation experience, it is difficult to conclude that
plaintiff’s failure to comply with the express requirements of Rule 56(d) was
inadvertent.

4

of your co-defendants in this case are alleged to have
committed in the complaint in the instant case.
Rule 56(d) Motion, p. 1.

Plaintiff represents that defendant

Lazaroff’s response to this interrogatory was: “I have no knowledge.”
Id.

Plaintiff also represents that “Assistant Attorney General

Lawrence H. Babich[,]” rather than defendant Collins or Director Mohr,
responded to the same interrogatory in the following way on behalf of
defendant Collins:
Objection, irrelevant, the conduct does not have to be the
“exact same conduct” to apply the doctrines of claims
preclusion or issue preclusion. Without waving [sic] this
objection and reserving all rights, you are the individual
who filed the Court of Claims cases 2007-07261 and 200905732 and are fully aware of the allegations made therein so
no response is necessary. The complaint in the Ohio Court
of Claims Case No. 2007-7621 claims that Melody Haskins and
other staff members took inappropriate action regarding
possession of property. The complaint in Ohio Court of
Claims 2009-0573 [sic] accuses the Defendant Melody Haskins
and unnamed ‘agents of Madison Correctional Institution’ of
taking possession of Plaintiff’s property.
Id.

Believing that defendants’ responses are evasive, plaintiff

represents that the information sought by Interrogatory No. 7 is
necessary to respond to arguments raised in defendants’ motion for
summary judgment, Doc. No. 157.

Rule 56(d) Motion, p. 2.

According

to plaintiff, defendants argue, inter alia, that the current action is
barred because plaintiff previously filed an action based on the same
occurrences in the Ohio Court of Claims (“the state court action”) and
that plaintiff failed to exhaust his administrative remedies as to RIB
convictions under Rules 50 and 51.

Id.

Plaintiff seeks to discover

“material facts related to defendants’ claim in this regard.”

Id.

also seeks to depose “certain Defendants and non-parties . . .
Defendants Collins, Director Mohr, Defendant Lazaroff, Defendant

5

He

Haskins, Defendant Lambert, Defendant Perry, Defendant Clark and
Defendant Willingham[.]”

Id.

In response, defendants argue, inter alia, that “[t]his issue is
now moot since this Court has already ruled in Defendants’ favor
(Doc.#103, Report and Recommendation)[.]”

Doc. No. 163, p. 1.

Defendants further contend that whether or not plaintiff’s lawsuit in
the Court of Claims bars the instant action is a question of law based
on those state court pleadings, which speak for themselves.

Id.

Plaintiff disagrees, first arguing that the Court has not ruled in
defendants’ favor.

Doc. No. 167, p. 1.

Plaintiff also takes the

position that “none of the Defendants can point to any particular
section in those pleadings which involve the same or similar
issues/allegations raised in the instant matter[.]”

Id. (emphasis in

original).
As an initial matter, the Court understands defendants’ response
to assert that the Court has already resolved in defendants’ favor the
issue of whether or not the current action is barred because of his
filings in the Ohio Court of Claims.

However, in ruling on the

objections to the Report and Recommendation, Doc. No. 103, the Court
actually denied defendants’ motion for judgment on the pleadings,
which raised this argument, without prejudice to the filing of motions
for summary judgment.

Opinion and Order, Doc. No. 106, p. 4.

See

also Order and Report and Recommendation, Doc. No. 148, p. 2. Accordingly,
the Court disagrees with defendants’ characterization of the Court’s
prior rulings.
Turning to the merits of the Rule 56(d) Motion, plaintiff alleges
that defendants have failed to adequately respond to Interrogatory No.
6

7.

As detailed supra, this interrogatory asks defendants Collins and

Lazaroff to specify the common conduct that, they contend, gave rise
to both the state court action and this litigation.

Rule 56(d)

specifically requires plaintiff to establish that he “cannot present
facts essential to justify” his opposition to the motion for summary
judgment without the requested discovery.

Here, however, plaintiff

filed both actions and therefore presumably possesses the information
sought by this interrogatory.

Stated differently, plaintiff already

knows whether the conduct alleged in both of his actions is the same
and he is therefore able to “present facts essential” to his
opposition to defendants’ motion for summary judgment.

Under these

circumstances, requiring further response to Interrogatory No. 7 is
unnecessary.

Accordingly, as to Interrogatory No. 7, plaintiff has

failed to meet his burden and the Rule 56(d) Motion in this regard is
without merit.

Cf. Storm v. Swiger, No. 4:07CV2387, 2008 U.S. Dist.

LEXIS 117142, at *14-15 (N.D. Ohio July 31, 2008) (recommending denial
of plaintiff’s Rule 56(f) motion where, inter alia, plaintiff “should
already have in his hands” pertinent documents) (adopted and aff’d by
Storm v. Swiger, No. 4:07CV2387, 2008 U.S. Dist. LEXIS 79465 (N.D.
Ohio Oct. 9, 2008)); Chesner v. Stewart Title Guar. Co., No.
1:06CV476, 2008 U.S. Dist. LEXIS 108004, at *11-12 (N.D. Ohio July 2,
2008) (finding that plaintiffs failed to meet their burden of showing
that the information sought is necessary to oppose the motion for
summary judgment where, inter alia, plaintiffs “already possess some
facts supporting the inferences they believe additional discovery
would support”).
Next, plaintiff asks to depose several defendants and non7

parties, representing that the “material facts” likely to be
discovered by such depositions will enable him to establish
“exhaustion under Rules 50 and 51, and to prove [that] Rules 28, 50,
and 51 are vague and lack fair notice.”

Rule 56(d) Motion, p. 2.

Plaintiff explains that he has been unable to previously discover this
information “because most of the Defendants have been evasive and/or
otherwise uncooperative in their responses.

The additional discovery

will also prove that Defendants are not entitled to qualified
immunity.”

Id.

However, plaintiff’s lack of specificity as to the

“material facts” necessary to prove his claims is impermissibly
“general and conclusory,” See Ball, 385 F.3d at 720.

Without a more

particularized showing of how an extension of time in order to conduct
additional discovery would allow him to challenge the arguments raised
by defendants, plaintiff has failed to establish his need for more
discovery.

Accordingly, as to his request for depositions, the Rule

56(f) Motion is not well-taken.5

Cf. Emmons v. McLaughlin, 874 F.2d

351, 358 (6th Cir. 1989) (finding no abuse of discretion in district
court’s refusal to permit additional discovery where supporting
affidavit suffered from a “total lack of specificity”).
WHEREUPON, Plaintiff’s Motion for Extension and for Additional
Discovery Per FRCVP 56(d)/Doc. #148, Doc. No. 160, is DENIED.

The

Court notes, however, that a separate motion, Doc. No. 153, remains
pending in part, which may impact briefing on defendants’ motion for
summary judgment, Doc. No. 157.

Once that motion, Doc. No. 153, is

5
To the extent that the request for these depositions is directed at the
information sought in Interrogatory No. 7, the request fails for the reasons
discussed supra.

8

fully resolved, the Court will establish a briefing schedule on
defendants’ motion for summary judgment.

The Court ADVISES the

parties that it will permit no additional discovery pending resolution
of Doc. No. 153.6
June 22, 2012

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

6
Plaintiff suggests that he may file a motion to compel at some
indeterminate point in the future. Rule 56(d) Motion, p. 3 (“In the event of
a motion to compel, Plaintiff will submit the interrogatories and responses in
their entirety, unless Your Honor specifies that the Court wants them
presented earlier.”). However, defendants served their discovery responses
nearly three months ago. Doc. No. 150.

9