Rose v. Reed et al

Filing 49

OPINION AND ORDER denying 29 Motion to Appoint Counsel; denying 40 Motion to Compel; striking 41 Motion for Jefferson County Administrator to Produce Valid Discovery of Designated Documents and Electronically Stored Information; striking 42 Motion for Jefferson County Sheriff Fred Abdulla to Produce Valid Discovery of Designated Documents and Electronically Stored Information; striking 48 Request for Production of Documents & striking 21 , 22 and 23 Motions for Subpoena(s) to Produce Documents. Signed by Magistrate Judge Terence P Kemp on 2/5/2014. (kk2)

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

:
Plaintiff,

:

v.

:

Sgt. Maynard Reed, et al.,
Defendants.

Case No. 2:12-cv-977

:

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

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.
Currently pending before the Court for consideration are three
motions “for subpoena(s) to produce documents” (Doc. #21, #22,
#23), a motion for the appointment of counsel (Doc. #29), a
motion to compel (Doc. #40), a motion for Jefferson County
Administrator to produce discovery of documents and
electronically stored information (Doc. #41), a motion for
Jefferson County Sheriff Fred Abdulla to produce discovery of
designated documents and electronically stored information (Doc.
#42), and a request for the production of documents (Doc. #48)
filed by Mr. Rose.
I. Requests for Discovery
Mr. Rose has filed a number of motions seeking discovery.
As this Court noted in a previous order, absent certain
circumstances, Fed. R. Civ. P. 5(d) does not permit the filing of
discovery requests.

That rule provides, in pertinent part, that

requests for documents and tangible things “must not be filed
until they are used in the proceeding or the court orders
filing....”

Because the discovery requests have not been used in

a proceeding and the Court has not ordered filing, the following
documents will be stricken:

the motions “for subpoena(s) to

produce documents” (Doc. #21, #22, #23), the motion for Jefferson
County Administrator to produce discovery of documents and
electronically stored information (Doc. #41), the motion for
Jefferson County Sheriff Fred Abdulla to produce discovery of
designated documents and electronically stored information (Doc.
#42), and the request for production of documents (Doc. #48).
II. Motion to Compel
Mr. Rose has filed a motion to compel discovery, claiming
that defendants have failed to respond.

Defendants filed a

memorandum in opposition to the motion, attaching their responses
to the discovery which they sent to Mr. Rose via ordinary mail.
Mr. Rose did not file a response to the memorandum in opposition.
Because defendants appear to have responded to the discovery in
full, the motion to compel will be denied as moot.

(Doc. #40).

III. Motion for Extension of Time
Mr. Rose also filed a motion seeking an extension of the
discovery deadline.

Mr. Rose asserts that additional time is

necessary so that he can pose the following requests for
production of documents:
(1)

Any reports involving types of allegations and
investigations for violent behaviors even if only
“slight” of the Defendants (Charles
Spencer)(Maynard Reed)(Mahmoud Hassan).

(2)

Any reports or investigations of disciplinary
actions or allegations of investigations prior to
(“Charles Spencers”) “relief” of duty and leading
up to his “dimissal”[sic] as well as “cause” for
his dimissal [sic].

(Doc. #45 at 1-2).

Defendants oppose Mr. Rose’s motion, arguing

that they have already responded to Mr. Rose’s requests.
Defendants state that to the extent that their “prior response
requires further clarification,” they “attach the affidavit of
Captain Shawn Livingston.”

(Doc. #46).

Fed. R. Civ. P. 16(b) requires the Court, in each civil
action which is not exempt from that rule, to enter a scheduling
order that limits the time to, inter alia, complete discovery.
The rule further provides that “[a] schedule may be modified only
for good cause and with the judge’s consent.”

In this case, the

record reflects that defendants have responded to Mr. Rose’s
requests and, to the extent necessary, supplemented those
responses with an affidavit.

Because Mr. Rose fails to set forth

good cause for the extension requested, the Court in its
discretion will deny the motion.

(Doc. #45).

IV. Motion for the Appointment of Counsel
In a motion filed on September 12, 2013, Mr. Rose has asked
for a second time that counsel be appointed for him.

(Doc. #29).

As the Court found previously, this action has not yet progressed
to the point that it is able evaluate the merits of Mr. Rose’s
claim.

Consequently, the motion for appointment of counsel will

be denied.

See Mars v. Hanberry, 752 F.2d 254 (6th Cir. 1985).
V. Conclusion

For the reasons set forth above, the motions “for
subpoena(s) to produce documents” (Doc. #21, #22, #23), the
motion for Jefferson County Administrator to produce discovery of
documents and electronically stored information (Doc. #41), the
motion for Jefferson County Sheriff Fred Abdulla to produce
discovery of designated documents and electronically stored
information (Doc. #42), and the request for the production of
documents (Doc. #48) are stricken.

Further, the motion to compel

(Doc. #40) and motion for the appointment of counsel (Doc. #29)
are denied.
VI. 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