Hurst v. Ohio Department of Rehabilitation and Correction et al
Filing
40
OPINION AND ORDER motion to compel, Doc. No. 26, is GRANTEDin part. motion to appoint counsel, Doc. No. 27, is DENIED. Signed by Magistrate Judge Norah McCann King on 9/13/12. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK EDWARD HURST,
Plaintiff,
Case No. 2:11-CV-1090
Judge Smith
Magistrate Judge King
vs.
OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on plaintiff’s Motion to Compel
Defendants to Supply to This Court and Plaintiff, the Names and
Addresses of the Board Members of the “Collegial Review Committee” at
the Time of Plaintiff’s Surgery Cancelation (“Motion to Compel”), Doc.
No. 26, and plaintiff’s Motion to Appoint Counsel, Doc. No. 27.
For
the following reasons, plaintiff’s Motion to Compel is GRANTED in part
and plaintiff’s Motion to Appoint Counsel is DENIED.
I.
BACKGROUND
Plaintiff Mark Hurst, a former state inmate, brings this civil
rights action alleging that he was denied medical care in
contravention of his constitutional rights when allegedly necessary
surgery was cancelled.
The Complaint, Doc. No. 4, names as
defendants, inter alios, the “Collegial Review Committee” [“the
Committee”] as well as members of the Committee, who are otherwise
unidentified.
Id. at 2.
Attempted service on the unidentified
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members of the Committee was returned unexecuted.
See Doc. No. 12.
Plaintiff filed a motion to compel defendants to produce “the
Names and Addresses of the Board Members of the ‘Collegial Review
Committee’ at the time of Plaintiffs Surgery Cancelation [sic].”
Motion to Compel, at 5.1
Defendants oppose plaintiff’s motion, taking
the position that the discovery sought is neither relevant to
plaintiff’s claims nor reasonably calculated to lead to the discovery
of admissible evidence because the “Collegial Review Committee was not
involved in the decision to cancel Plaintiff’s surgery.”
Defendants’
Substantive Response to Plaintiff’s Motion to Compel, Doc. No. 35, at
3.
II.
MOTION TO COMPEL
A.
Standard
Determining the proper scope of discovery falls within the broad
discretion of the trial court.
Lewis v. ACB Bus. Servs., Inc., 135
F.3d 389, 402 (6th Cir. 1998).
Rule 37 of the Federal Rules of Civil
Procedure authorizes a motion to compel discovery when a party fails
to provide a proper response to interrogatories under Rule 33 or
requests for production of documents under Rule 34.
Rule 37(a)
expressly provides that “an evasive or incomplete disclosure, answer,
or response must be treated as a failure to disclose, answer, or
respond.”
Fed. R. Civ. P. 37(a)(4).
“Although a plaintiff should not
be denied access to information necessary to establish [his] claim,
neither may a plaintiff be permitted ‘to go fishing and a trial court
1
Defendants initially opposed the motion on the basis that plaintiff had
not attempted to resolve the dispute prior to filing the Motion to Compel.
The Court rejected that argument, Order, Doc. No. 34, and defendants have now
made substantive response to the Motion to Compel.
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retains discretion to determine that a discovery request is too broad
and oppressive.’”
Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305
(6th Cir. 2007) (quoting Marshall v. Westinghouse Elec. Corp., 576
F.2d 588, 592 (5th Cir. 1978)).
“The proponent of a motion to compel
discovery bears the initial burden of proving that the information
sought is relevant.”
Martin v. Select Portfolio Serving Holding
Corp., No. 1:05-cv-273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio
Sept. 25, 2006) (citing Alexander v. Fed. Bureau of Investigation, 186
F.R.D. 154, 159 (D.D.C. 1999)).
B.
Relevancy
Rule 26(b) provides that “[p]arties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or
defense of any party.”
Fed. R. Civ. P. 26(b)(1).
Relevance for
discovery purposes is extremely broad.
Miller v. Fed. Express Corp.,
186 F.R.D. 376, 383 (W.D. Tenn. 1999).
“The scope of examination
permitted under Rule 26(b) is broader than that permitted at trial.
The test is whether the line of interrogation is reasonably calculated
to lead to the discovery of admissible evidence.”
Mellon v.
Cooper–Jarrett, Inc., 424 F.2d 499, 500–01 (6th Cir. 1970) (citations
omitted).
Plaintiff’s discovery request seeks the “names, work addresses,
and the home addresses of the Board Members of the ‘Collegial Review
Committee’ at the time of Plaintiff’s surgery cancellation.”
to Compel, at 5.
Motion
Because the Complaint, as noted supra, names the
Committee members as defendants in the action, information sufficient
to enable plaintiff to effect service of process on these defendants
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is relevant.
Defendants objected to the request on the basis of
relevancy and stated, further, “Without waiving said objection, the
‘Collegial Review Committee’ was not involved in the decision to
cancel Plaintiff’s surgery.”
Defendants’ Substantive Response to
Plaintiff’s Motion to Compel, at 3.
Defendants support their position
with the Declaration of David C. Weil, M.D., in which Dr. Weil states
that it was his decision to cancel plaintiff’s surgery.
Defendants’
Substantive Response to Plaintiff’s Motion to Compel, Declaration of
David C. Weil, M.D., at ¶ 8.
As an initial matter, the Court questions the propriety of
resisting discovery relevant to service of process by disputing the
merits of plaintiff’s claim.2
In any event, however, the exhibits
submitted in connection with plaintiff’s Motion to Compel suggest that
the Committee and its members may in fact been involved in the
decision to cancel plaintiff’s surgery.
See Motion to Compel, Exhibit
P (“First, your surgery consult was sent to the collegial review
committee (Operations Support Center-formerly known as Central
Office).
This committee had a conference with Dr. Weil on 3/4/11.
A
determination was made to cancel surgery and advise you to sign up for
doctor sick call if pain persists.”), Exhibit N (indicating that
plaintiff’s surgery was cancelled on the same day that the Committee
conducted a conference with Dr. Weil), Exhibit R (indicating that the
Committee consulted with Dr. Weil about the decision to cancel
plaintiff’s surgery).
At a minimum, the members of the Committee may
have personal knowledge of the conference with Dr. Weil and whether or
2
The Court notes that defendants have in fact filed a Motion for Summary
Judgment, Doc. No. 36.
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not they were involved in the decision to cancel plaintiff’s surgery.
Identifying information relating to defendants and persons who
apparently possess personal knowledge of the events giving rise to
plaintiff’s claims is clearly relevant to the issues in the case and
falls within the ambit of discoverable information. Plaintiff is
therefore entitled to such information.
The Court is concerned, however, with plaintiff’s request for the
home addresses of the Committee members.
If defendants are able to
provide to plaintiff information sufficient to enable him to effect
service of process on these individuals and to propound appropriate
discovery on them, the Court will not require that their home
addresses be divulged.
III. MOTION TO APPOINT COUNSEL
Plaintiff has filed a third motion to appoint counsel, Doc. No.
27.
Again, because the action has not yet progressed to the point
that the Court is able to evaluate the merits of plaintiff’s claim,
the motion for appointment of counsel, Doc. No. 27, is DENIED without
prejudice to renewal at a later stage of the proceedings.
See Henry
v. City of Detroit Manpower Dept., 763 F.2d 757 (6th Cir. 1985); Reed
v. Craig, No. 1:11-cv-00719, 2012 U.S. Dist. LEXIS 82049, at *2-3
(S.D. Ohio June 13, 2012).
WHEREUPON, plaintiff’s Motion to Compel, Doc. No. 26, is GRANTED
in part.
Defendants are DIRECTED to provide to plaintiff, within
fourteen (14) days, identifying information regarding the members of
the Collegial Review Committee sufficient to enable plaintiff to
effect service of process and propound discovery on these individuals.
Plaintiff’s Motion to Appoint Counsel, Doc. No. 27, is DENIED
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without prejudice to renewal at a later stage of the proceedings.
September 13, 2012
s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
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