Hendricks v. Ohio Department of Rehabilitation and Corrections et al

Filing 87

ORDER granting in part and denying in part 78 Motion to Compel, denying the request for appointment counsel and sanctions & denying as moot 83 Motion for Extension of Time to File Response/Reply. Signed by Magistrate Judge Terence P Kemp on 6/8/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Benjamin Hendricks,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-40

Ohio Department of
Rehabilitation and Correction,
et al.,

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Defendants.

:

:

ORDER
This case is before the Court to consider a motion to compel
filed by plaintiff Benjamin Hendricks.
briefed.

The motion has been fully

For the following reasons, the motion to compel will be

granted in part and denied in part.
I.
The facts of this case have been set out in detail in
previous orders of the Court relating to the amendment of Mr.
Hendricks’ complaint and will not be repeated here.

Briefly,

however, the allegations of Mr. Hendricks’ amended complaint
assert two causes of action.

Mr. Hendricks’ first claim is an

Eighth Amendment claim arising from the alleged disregard of his
dietary needs relating to his gastrointestinal issues.

This

claim is directed to defendants John DesMarais, Mona Parks,
Theresa Bell, and Susan Nesbitt.

The second claim is a First

Amendment claim relating to the alleged destruction of his legal
materials by Michelle Miller.
Mr. Hendricks’ motion to compel involves discovery requests
served on each remaining individual defendant except Mona Parks.
According to the amended complaint, these defendants include Dr.
John DesMarais, the medical director for the ODRC, Theresa Bell,

the dietary operations manager for the ODRC, Susan Nesbitt, the
healthcare administrator at the Belmont Correctional Institution,
and Michelle Miller, the warden at the Belmont Correctional
Institution.

According to the motion to compel, these individual

sets of discovery requests were a combination of interrogatories,
requests for production of documents, and requests for admission,
although each specific request was not identified as a particular
form of discovery request.

Mr. Hendricks also directed a set of

requests for admission to the defendants as a whole.

Mr.

Hendricks has attached copies of the defendants’ responses to his
motion to compel.

From these responses it appears that, over

objection, Dr. DesMarais responded to the 17 discovery requests
directed to him specifically and provided the requested
documents.

Similarly, Ms. Bell, Ms. Miller and Ms. Nesbitt

responded to each of the discovery requests directed specifically
to them and either answered them over objection, indicated that
they were without knowledge to do so, or stated that Mr.
Hendricks was requesting information beyond their control.
also provided requested documentation.

They

The defendants responded

to Mr. Hendricks’ blanket requests for admission by objecting to
each request primarily on grounds that the requests were not
directed to a particular party, Mr. Hendricks did not furnish
sufficient information within his possession to enable the
responding party to form a conclusion, and the requests were
phrased in improper form.
In his motion to compel, Mr. Hendricks appears to take issue
with every single discovery response.

With respect to the

discovery directed to the individual defendants, many of the
issues Mr. Hendricks raises relate to the form of the answer
provided.

For example, Mr. Hendricks asserts that many of the

requests called only for “yes/admit” or “no/deny” answers even
though they were not identified as requests for admission.
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Mr.

Hendricks also attempts to address every objection raised by the
defendants, even when they provided an answer over objection.
With respect to the requests for admission addressed to all of
the defendants, Mr. Hendricks asserts that the information he
failed to furnish is easily available to the defendants and
defendants failed to make any reasonable inquiry before stating
that they had insufficient information with which to respond.
Mr. Hendricks also requests sanctions under Fed.R.Civ.P. 37 and
the appointment of counsel.
In response, defendants argue that the motion to compel is
moot because they have appropriately responded to Mr. Hendricks’
discovery requests.

Further, they contend that, aside from

replacing their narrative answers with yes or no responses, they
are unclear as to what supplementation Mr. Hendricks seeks.
Further, they assert that Mr. Hendricks has filed his motion to
compel simply because he disagrees with their answers.

They also

state, however, that to the extent Mr. Hendricks needs additional
time to review his medical records, they are willing to arrange
it.
In reply, Mr. Hendricks disputes that the defendants are
willing to allow him additional review of his medical records.
He also contends that the fact that defendants provided legal
mail logs for the time period from July 2009 to the end of that
year as opposed to all of 2009 as he had requested is simply one
example of their efforts to thwart discovery.

The bulk of his

reply, however, appears to be addressed to the requests for
admission.

He contends that the defendants’ responses are

deficient because they do not include a statement that defendants
made a reasonable inquiry to obtain any of the requested
information.
II.
The general principles involving the proper scope of
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discovery are well known.

The Federal Rules of Civil Procedure

authorize extremely broad discovery.

United States v. Leggett &

Platt, Inc., 542 F.2d 655 (6th Cir. 1976), cert.
denied 430 U.S. 945 (1977).

Therefore, Fed.R.Civ.P. 26 is to be

liberally construed in favor of allowing discovery.

Dunn v.

Midwestern Indemnity, 88 F.R.D. 191 (S.D.Ohio 1980).

Any matter

that is relevant, in the sense that it reasonably may lead to the
discovery of admissible evidence, and is not privileged, can be
discovered.

The concept of relevance during discovery is

necessarily broader than at trial, Mellon v. Cooper-Jarrett,
Inc., 424 F.2d 499 (6th Cir. 1970), and "[a] court is not
permitted to preclude the discovery of arguably relevant
information solely because if the information were introduced at
trial, it would be 'speculative' at best."

Coleman v. American

Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994).
Information subject to disclosure during discovery need
not relate directly to the merits of the claims or defenses
of the parties.

Rather, it may also relate to any of the

myriad of fact-oriented issues that arise in connection with
the litigation.
340 (1978).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

On the other hand, the Court has the duty to

deny discovery directed to matters not legitimately within
the scope of Rule 26, and to use its broad discretionary
power to protect a party or person from harassment or
oppression that may result even from a facially appropriate
discovery request.
(1979).

See Herbert v. Lando, 44l U.S. 153

Additionally, the Court has discretion to limit or even

preclude discovery which meets the general standard of relevance
found in Rule 26(b)(1) if the discovery is unreasonably
duplicative, or the burden of providing discovery outweighs the
benefits, taking into account factors such as the importance of
the requested discovery to the central issues in the case, the
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amount in controversy, and the parties' resources.
Fed.R.Civ.P. 26(b)(2).

See

Finally, the Court notes that the scope

of permissible discovery which can be conducted without leave of
court has been narrowed somewhat by the December 1, 2000
amendments to the Federal Rules.

Rule 26(b) now permits

discovery to be had without leave of court if that discovery "is
relevant to the claim or defense of any party ...."

Upon a

showing of good cause, however, the Court may permit broader
discovery of matters "relevant to the subject matter involved in
the action."

Id.
III.

The Court will address the discovery requests as directed to
the individual defendants first.

With respect to Dr. DesMarais,

while Mr. Hendricks argues that portions of Requests Nos. 1-6,
10, and 14-15 are intended as requests for admission thereby
requiring only a “yes/admit” or “no/deny” answer, they are all
phrased in the form of interrogatories.

Further, although Mr.

Hendricks addresses every objection raised by Dr. DesMarais with
respect to the remaining discovery requests, Mr. Hendricks fails
to assert how Dr. DesMarais’ answers, provided over objection,
are insufficient.

Consequently, the motion to compel will be

denied to the extent that it seeks an order directing Dr.
DesMarais to supplement his responses to requests Numbers 1
through 16.
In discovery request No. 17, Mr. Hendricks requested a copy
of the ODRC policy on “Consultation Referrals: Initiation,
Process, & Follow-up Number: B-1.”

In response, the defendants

provided a copy of the policy in effect as of July 7, 2011.

Mr.

Hendricks asks the Court to take judicial notice of the fact that
the documents provided may be “substantially different” from the
policy in effect at the time relevant to the allegations of the
complaint.

The Court agrees that a copy of the policy in effect
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at the time Mr. Hendricks’ claim arose would be more relevant
than a copy of the policy currently in effect.

While the Court

declines to take judicial notice as requested, it will require
the defendants to provide a copy of the policy in effect during
the time period set forth in the complaint.
Turning to the eleven discovery requests directed to Ms.
Bell, the dietary operations manager for the ODRC, Ms. Bell
answered a number of these requests over objection.

As with Dr.

DesMarais, other than objecting to the form of her answers to
these specific questions, which he did not identify as requests
for admission, Mr. Hendricks has not identified any deficiencies
in Ms. Bell’s

responses.

Consequently, the Court will deny the

motion to compel as it relates to discovery requests Nos. 1, 2,
3, 5, 6, and 9.

Similarly, the Court will deny the motion to

compel as it relates to discovery request No. 11 in light of
defendants’ representation in their response that they are
willing to arrange additional time for Mr. Hendricks to review
his medical records.
With respect to the remaining requests directed to Ms. Bell,
the Court will consider them in turn.

Request No. 4 and Ms.

Bell’s response are as follows:
4. Was a low residue diet ever order/recommended for
plaintiff by a specialist that plaintiff was scheduled
to see
Response: Objection-form; lack of foundation;
vagueness; the interrogatory relates to the actions of
third parties over whom Defendant Bell has not right to
control; the interrogatory relates to medical records
that are not in Defendant Bell’s possession; said
records speak for themselves; and Plaintiff did not
attach a copy of said records to his request.
1.

If yes, why would this not have been followed

Response: Objection-form; calls for speculation; lack
of foundation; assumes facts not in evidence; and
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vagueness. Without waiving any objection, Defendant
Bell states that any recommendation from a medical
specialist outside of the Ohio Department of
Rehabilitation and Correction (ODRC) is subject to the
discretion of the inmate’s institutional physician and
to relevant ODRC policies and protocols.
In his motion to compel, Mr. Hendricks argues that this request
calls for a yes or no answer, it is relevant to defendants’
knowledge of his need for a low residue diet, and he has been
unable to obtain the medical records but they are easily
available to Ms. Bell.

Defendants’ agreement to provide Mr.

Hendricks additional time to review his medical records may
resolve the motion to compel as it relates to these discovery
requests.

Consequently, the motion to compel will be denied as

to this request without prejudice to its renewal after Mr.
Hendricks completes his additional review of his medical records.
Request No. 7 and the corresponding response state as
follows:
7. Why would the orders/recommendations of a
specialist, a Gastroenterologist in this case, not be
followed to prevent further complications
Response: Objection-form; calls for speculation; lack
of foundation; assumes facts not in evidence; and
vagueness.
In his motion to compel, Mr. Hendricks argues that this
request is relevant because it relates to Ms. Bell’s state of
mind regarding the allegations in the complaint.

Despite the

defendants’ assertion of various deficiencies, the focus of Mr.
Hendricks’ request, fairly read, is quite clear.

He is asking,

consistent with the allegations in his complaint, why the orders
of his medical specialist were not followed.

There could be any

number of reasons for this alleged occurrence, but Ms. Bell’s
answer does not provide any reasons.
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Ms. Bell will be directed

to supplement her response to this request.
8.

Do you know of any expert witnesses that intend to
be called to testify at trial

Response: Objection- form; confidential or privileged;
vagueness; and the interrogatory relates to the actions
of third parties over whom Defendant Bell has no right
to control. Without waiving objection, Defendant Bell
states that she has no information or belief sufficient
to answer the interrogatory.
As noted, Ms. Bell chose to answer this discovery request
over objection.

Her response, however, is inadequate.

The

procedures governing service of and responses to interrogatories
are set forth in Fed.R.Civ.P. 33.

Fed.R.Civ.P. 33(b)(3) provides

as follows:
Each interrogatory must, to the extent it is not
objected to, be answered separately and fully in
writing under oath.
“Parties must respond truthfully, fully and completely to
discovery or explain truthfully, fully and completely why they
cannot respond.”

Miller v. Pruneda, 2004 WL 3927832 (N.D. W.Va.

July 20, 2004), at *5.

“If a party is unable to supply the

requested information, ... [the party] must state under oath that
he is unable to provide the information and ‘set forth the
efforts he used to obtain the information.’” Hansel v. Shell Oil
Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996) quoting Milner v.
National Sch. of Health Tech., 73 F.R.D. 628, 632 (E.D. Pa.
1977).

Although there is not an extensive amount of commentary

on Rule 33(b) in the Advisory Committee notes, the notes to the
1993 Amendments do indicate that one of the purposes of the rule
is to “emphasize the duty of the responding party to provide full
answers” to interrogatories.

That duty is further highlighted by

Fed.R.Civ.P. 37(a)(4), which provides that an evasive or
incomplete answer is deemed to be no answer at all and can lead
to the imposition of sanctions upon the party whose answer is
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either evasive or incomplete.

This same concept of full and

complete responses to discovery requests is reinforced by
Fed.R.Civ.P. 26(g)(1), which states that “[b]y signing, an
attorney or party certifies that to the best of the person’s
knowledge, information and belief formed after a reasonable
inquiry, the request, response, or objection is ... consistent
with these rules ... and not interposed for any improper purpose,
such as to harass or cause unnecessary delay or needless increase
in the cost of litigation.”

Fed.R.Civ.P. 26(g)(1)(B)(i)(ii).

For these reasons, Ms. Bell’s response that she is without
knowledge or belief, absent any explanation of her steps to make
a reasonable inquiry, is insufficient.

Consequently, Ms. Bell

will be directed to supplement her response to request No. 8.
10.

Please provide a copy of all commissary purchases
to date

Response: Objection-form; relevance; lack of
foundation; vagueness; and the interrogatory relates to
records that are not in Defendant Bell’s possession.
In his motion to compel, Mr. Hendricks argues that this
request is relevant to a potential defense and the records are
readily available to Ms. Bell.

The Court agrees that evidence

relating to Mr. Hendricks’ commissary purchases may be relevant
to a defense of his claims of chronic gastrointestinal distress.
While Ms. Bell asserts that she is not in possession of these
records, she does not indicate any efforts she has made to obtain
these records or why she was unable to do so.

Consequently, the

motion to compel will be granted as to discovery request No. 10
directed to Ms. Bell.
Turning to Ms. Miller, with respect to several of the
discovery requests, she also has answered them over objection
and, aside from his argument relating to form, Mr. Hendricks has
not indicated how her answers are insufficient.

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As a result, the

motion to compel will be denied as to discovery requests Nos. 2,
3, and 7.

With respect to request No. 10, Mr. Hendricks notes

that while he requested records relating to his legal mail for
January through December 2009, the records he received relate
only to July 2009 through the end of that year.

To the extent

that there are any records relating to the time period from
January 2009 through June 2009, Ms. Miller will be directed to
produce them.
With respect to request No. 1 directed to Ms. Miller, the
request and Ms. Miller’s response state as follows:
1. Other than the instant case, have there ever
been any other allegations against involving you
regarding any form of retaliation.
Response: Objection - form; relevance; vagueness;
and the interrogatory relates to the actions of third
parties over whom Defendant Miller has no right to
control.
In his motion to compel, Mr. Hendricks characterizes this
discovery request as a request for admission and states that it
merely requires a “yes/admit” or “no/deny” answer.

Rule 36 of

the Federal Rules of Civil Procedure permits a party to serve on
any other party “a written request to admit ... the truth of any
matters within the scope of Rule 26(b)(1) relating to: (A) facts,
the application of law to fact, or opinions about either; and (B)
the genuineness of any described documents.”

Fed.R.Civ.P.

36(a)(1). “Rule 36 is not a discovery device, and its proper use
is as a means of avoiding the necessity of proving issues which
the requesting party will doubtless be able to prove.”

Misco,

Inc. v. United States Steel Corp., 784 F.2d 198, 205 (6th Cir.
1986).

The Court finds that request no. 1 is not a proper Rule

36 request.

Simply stated, it does not comply with Federal Rule

of Civil Procedure 36(a) and more closely resembles an attempt to
utilize Rule 36 as a general discovery device.
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Consequently, Mr.

Hendricks’ motion to compel will be denied as to this request.
The remaining discovery requests directed to Ms. Miller
relate to her alleged search and seizure of Mr. Hendricks’ legal
materials.

With respect to requests Nos. 4, 5, 6, 8, and 9, Ms.

Miller has, over objection, stated that “she is without knowledge
or information sufficient to respond to the interrogatory.”

For

example, this was her response to request No. 4 which asked the
reason for the search and seizure as alleged in the complaint.
Similarly, it was her response to request No. 5, which asked
whether she was present at the time of the alleged incident.
Additionally, she responded in this way to request No. 9 asking
whether Mr. Hendricks had ever personally informed her or her
subordinates of pending legal action.

With respect to requests

Nos. 6 and 8 relating to Mr. Hendricks’ possession of a locker
box or whether he had ever been issued a conduct report for
possessing contraband - questions that seem capable of being
answered by a review of records within the control of an
institution’s warden - she again asserted lack of knowledge or
information.

This response is simply inadequate.

Ms. Miller has failed to explain the efforts she undertook
in making a reasonable inquiry to obtain the information Mr.
Hendricks is requesting.

As discussed above, the rules governing

discovery require that she do so.

Further, it seems likely that

Ms. Miller knows whether she was present when Mr. Hendricks’
legal materials allegedly were destroyed.

Consequently, the

motion to compel will be granted as to requests Nos. 4, 5, 6, 8,
and 9 and Ms. Miller will be directed to supplement her
responses.
Turning to Ms. Nesbitt, several of the discovery requests
directed to her involve questions relating to information
contained in Mr. Hendricks’ medical records.

Defendants’

agreement to provide Mr. Hendricks additional time to review his
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medical records may resolve the motion to compel as it relates to
these discovery requests.

Consequently, with respect to requests

Nos. 2, 3, 4, 9, 13, 14, and 15, the motion to compel will be
denied without prejudice to its renewal after Mr. Hendricks
completes his additional review of his medical records.

Further,

over objection Ms. Nesbitt has answered many of Mr. Hendricks’
discovery requests and he has not indicated with any specificity
why her responses are insufficient.

Consequently, the motion to

compel will be denied as to request Nos. 1, 5, 6, 7, and 8.

With

respect to requests Nos. 10, 11, and 12, however, Ms. Nesbitt’s
answer, over objection, merely was that she is without knowledge
or information sufficient to answer.

These discovery requests

are as follows:
10.

According to your knowledge, are any of the
defendants a gastroenterologist or have any
special training/education concerning Crohn’s
disease?
If yes

1.

Which defendants?

2.

What are their qualifications?

11.

Have Dietetic Technicians employed by ODRC tried
to customize a diet plan for plaintiff. If yes,
what were the dietary plans?

12.

Did any ODRC employee/agent/contractor deny and/or
interfere with these plans? If yes, who?

As explained above, Ms. Nesbitt’s response asserting lack of
knowledge or information is inadequate.

Consequently, the motion

to compel will be granted as to request Nos. 10, 11, and 12
directed to Ms. Nesbitt and she will be directed to supplement
these responses.
Finally, with respect to the requests for admission, the
defendants raise three primary objections - the request is not
directed to a particular party, the request is phrased in an
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improper form, and Mr. Hendricks did not furnish information
within his exclusive control to enable a responding party to
answer.

With respect to the defendants’ first two grounds for

objecting, there is no question that pro se documents, including
discovery requests, are held to less stringent standards than
documents drafted by lawyers and are to be liberally construed.
See, e.g., Alli v. Savitz, Estate of, 2008 WL 3915147 (E.D. Mich.
August 20, 2008) citing McNeil v. Salan, 961 F.2d 1578, 1992 WL
102734, *4 (6th Cir. 1992) (unpublished).

A fair reading of Mr.

Hendricks’ requests for admission indicates that the defendants
should be able to identify who among them is best capable of
responding to these requests.

The requests are concisely drafted

and the information Mr. Hendricks is seeking in response, which
relate to the allegations of his gastrointestinal issues as set
forth in the complaint, is fairly clear.

Further, to the extent

that the defendants have objected to certain requests on grounds
that the information relating to the request is within Mr.
Hendricks’ exclusive control, the Court is not convinced.

The

majority of these requests appear to relate to information
contained in Mr. Hendricks’ medical records which unquestionably
are not within his exclusive control.

Similarly, the requests

relating to Mr. Hendricks’ transfer from the Cuyahoga County Jail
- requests Nos. 1 and 2 - are not based on information
exclusively within his control.

Construing these requests

liberally as the Court is required to do given Mr. Hendricks’ pro
se status, the Court will require the defendants to answer the
requests for admission consistent with the requirements of
Fed.R.Civ.P. 36(a)(4).
This brings the Court to the two remaining issues raised by
Mr. Hendricks’ motion to compel - his request for sanctions and
his request for appointment of counsel.

As the Court has

consistently stated, to date this case has not progressed to the
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point where the Court can determine Mr. Hendricks’ need for
counsel.

Further, as the Court has noted previously, Mr.

Hendricks has been able to articulate and present his claims
capably.

Consequently, the request for appointment of counsel

will be denied.

Additionally, the Court does not find that

defendants’ discovery responses are of the nature justifying an
imposition of sanctions under Rule 37.

Consequently, the request

for sanctions will be denied.
IV.
Based on the foregoing, the motion to compel (#78) is
granted in part and denied in part as set forth above.

The

defendants shall supplement their responses as directed within
fourteen days of the date of this order.

The request for

appointment of counsel and sanctions is denied.

The motion for

extension of time (#83) is denied as moot.
APPEAL PROCEDURE
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.

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/s/ Terence P. Kemp
United States Magistrate Judge

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