Rose v. Reed et al
Filing
35
OPINION AND ORDER denying 20 Motion for Summary Judgment; denying 24 Motion to Strike. Signed by Magistrate Judge Terence P Kemp on 10/11/2013. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sol Rose III,
Plaintiff,
Case No. 2:12-cv-977
v.
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
Sgt. Maynard Reed, et al.,
Defendants.
OPINION AND ORDER
Sol Rose III, an inmate at the Belmont Correctional
Institution, filed this action under 42 U.S.C. § 1983 alleging
that defendants, Jefferson County Sheriff Fred Abdalla, Charles
Spencer, Mahmoud Hassan, and Maynard Reed assaulted him and
failed to properly recruit, train, and discipline officers.
This
case is before the Court on Mr. Rose’s “Motion for Summary
Judgment” (Doc. 20) and defendants’ motion to strike plaintiff’s
“Motion for Summary Judgment” or, in the alternative, motion to
strike the witness statements attached to the motion (Doc. 24).
While Mr. Rose captioned his motion as a motion for summary
judgment, Mr. Rose’s motion is actually a Rule 37 motion to
compel discovery and a motion asking the Court to accept certain
witness statements.
For the reasons set forth below, Mr. Rose’s
motion will be denied without prejudice.
Defendants’ motion to
strike will also be denied.
I. The Motion to Compel
Mr. Rose’s motion does not seek summary judgment as defined
in the Federal Rules of Civil Procedure.
motion sets forth two requests.
Rather, Mr. Rose’s
The first request provides:
Plaintiff request [sic] the Court, with great respect to
grant motions on; MEMORANDUM IN SUPPORT & NOTICE OF
SUBPOENAS OF EVIDENCE TO SUPPORT CLAIM, Plaintiff Sol
Rose III can show the court footage of video’s [sic] of
attack, and acts of dereliction of duty from Officers,
under R.C. 2921.44 (A-2)(C-2)(C-3), “Where Officers
failed to report an assault, where Officers failed to
provide adequate medical attention after the assault by
fellow officers, using unreasonable force without cause,
ECT [sic];”.
(Doc. 20 at 1).
This request refers to Plaintiff’s notice of
subpoenas of evidence to support claim, which he filed on
December 7, 2012 and December 10, 2012 (Docs. 5 and 6).
Mr. Rose
seeks to compel discovery of surveillance footage of the alleged
assault, a list of names of the other inmates the day of the
alleged assault, Mr. Rose’s phone records from that day, and
medical records.
Because the Federal Rules of Civil Procedure
require parties to take a number of steps before filing a motion
to compel, and it appears that Mr. Rose has skipped to the last
step in the process, the Court cannot grant his request.
The requirements for a motion seeking a Court order
compelling discovery are set forth in Rule 37(a) of the Federal
Rules of Civil Procedure.
Under Rule 37(a)(1), “[t]he motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing
to make disclosure or discovery in an effort to obtain it without
court action.”
Mr. Rose has not certified that he has, “in good
faith,” made an effort to “confer[] or attempt[] to confer” with
defendants regarding these requests.
Furthermore, it is not clear that there are grounds for
compelling defendants to produce the discovery that Mr. Rose
seeks at this time.
Under Rule 37(a)(3)(A), a party may move to
compel disclosures required by Rule 26 of the Federal Rules of
Civil Procedure, which stipulates that a party must disclose
certain information without awaiting a discovery request.
However, this action was brought pro se by a person in state
custody, and so this action is exempt from the initial disclosure
requirements of Rule 26(a)(1)(A) pursuant to Rule
26(a)(1)(B)(iv).
Under Rule 37(a)(3)(B), a party can move to compel discovery
if:
(i) a deponent fails to answer a question asked under
Rule 30 or 31; (ii) a corporation or other entity fails
to make a designation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted
under Rule 33; or (iv) a party fails to respond that
inspection will be permitted--or fails to permit
inspection--as requested under Rule 34.
Fed. R. Civ. P. 37(a)(3)(B).
This first requires a party to
serve a valid discovery request, notice of deposition, or
subpoena as contemplated by the rules.
For example, a party
might, under Rule 34(a)(1)(A), make a request of the opposing
party to “produce . . . designated documents or electronically
stored information. . . . ”
Or information could be sought in
accordance with Rule 30 (depositions by oral examination), Rule
31 (depositions by written question), Rule 33 (interrogatories to
parties), or other portions of Rule 34 (producing documents,
electronically stored information, and tangible things, or
entering onto land, for inspection and other purposes).
It does
not appear that Mr. Rose has made a proper discovery request
pursuant to any of those rules seeking the discovery at issue in
his motion.
Furthermore, even if Mr. Rose had made a proper
discovery request as described in the rules, he could file a
motion to compel only if defendants refused the request, or if
the Court determined that the defendants’ disclosures or
responses were “evasive or incomplete.”
37(a)(4).
Fed. R. Civ. P.
Finally, as stated previously, any motion to compel
would have to comply with the requirements of Rule 37(a)(1).
For the reasons set forth above, Mr. Rose’s motion to compel
under Rule 37 is denied.
II. The Motion to Accept Certain Witness Statements
Mr. Rose also requests that the Court accept two witness
statements, again under the heading of “motion for summary
judgment.”
It is not clear what Mr. Rose means by “accept” in
this context.
Mr. Rose has not identified any claims or defenses
as to which there is “no genuine dispute to any material fact” as
contemplated by Rule 56 of the Federal Rules of Civil Procedure.
It is not clear what these statements are being offered to
support, and the Court declines to consider them in the abstract.
III. Defendants’ Motion to Strike
Defendants move to strike Mr. Rose’s motion for summary
judgment.
Defendants claim that the Mr. Rose has not met his
burden of proving, by a preponderance of the evidence, that there
is no genuine issue of material fact and he is entitled to
judgment as a matter of law.
Defendants also move to strike Mr.
Rose’s witness statements because they are not admissible for
purposes of Rule 56.
The Southern District of Ohio has held that motions to
strike are disfavored.
See Berry v. Frank's Auto Body Carstar,
Inc., 817 F. Supp. 2d 1037, 1041-42 (S.D. Ohio 2011), aff'd 495
F. App'x 623 (6th Cir. 2012).
In Berry, the Court determined
that “a Court should ignore inadmissible evidence instead of
striking it from the record.”
Id.
Further, even in situations
governed by Rule 12(f), this Court has determined that motions to
strike are only granted where the material at issue is
“scandalous” in that it contains “extreme or offensive” language,
or where it is “immaterial” because it “bears no possible
relation to the controversy.”
Hughes v. Lavender, 2:10-CV-674,
2011 WL 2945843, at *2 (S.D. Ohio July 20, 2011).
Here, defendants have provided no legal basis for striking
the motion or witness statements.
Even if the motion were a
pleading governed by Rule 12(f), it contains no “extreme or
offensive” language, and is thus not scandalous.
Further, to the
extent that the witness statements are inadmissible, the proper
remedy would be to ignore them.
to strike will be denied.
Accordingly, defendants’ motion
IV. Conclusion
For the reasons set forth above, Mr. Rose’s motion to compel
and to accept certain witness statements (Doc. 20) and
defendants’ motion to strike (Doc. 24) are denied.
V. 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.
/s/ Terence P. Kemp
United States Magistrate Judge
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