Brown v. Mohr et al

Filing 202

ORDER granting 198 Motion to Compel. 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. Responses to objections are due fourteen days after objectio ns are filed and replies by the objecting party are due seven days thereafter. Signed by Magistrate Judge Terence P. Kemp on 6/30/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Steven S. Brown,

:

Plaintiff,

:
:

v.
Director Mohr, et al.,

Case No. 2:13-cv-0006
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:

Defendants.

:

ORDER
This matter is before the Court on plaintiff Steven S.
Brown’s motion to compel.

Defendants have filed a response and

the motion has been fully briefed.

For the following reasons,

the motion to compel will be denied.
I.

Legal Standard

The general principles involving the proper scope of
discovery are well known.

The Federal Rules of Civil

Procedure authorize extremely broad discovery.

United States v.

Leggett & Platt, Inc., 542 F.2d 655, 657 (6th Cir. 1976), cert.
denied 430 U.S. 945 (1977); see also Lewis v. ACB Business
Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)(“The scope of
discovery under the Federal Rules of Civil Procedure is
traditionally quite broad”).

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

construed liberally in favor of allowing discovery.

Dunn v.

Midwestern Indemnity, 88 F.R.D. 191, 195 (S.D. Ohio 1980).
However, recent amendments to Fed. R. Civ. P. 26(b)(1) highlight
certain proportionality factors which the parties are to consider
in making discovery requests, responses, or raising objections.
See Advisory Committee Notes to December 1, 2015 amendments
(“[t]his change reinforces the Rule 26(g) obligation of the
parties”).

Thus, under current Fed.R.Civ.P. 26(b)(1), the

parties may obtain discovery regarding any non-privileged matter
which is relevant to any claim or defense and proportional to the
needs of the case.
The proportionality analysis requires consideration of a
number of factors, including the importance of the issues at
stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources,
and the importance of the discovery in resolving the issues.
Consideration must also be given to whether the burden or expense
of the proposed discovery outweighs its likely benefit.

Fed. R.

Civ. P. 26(b)(1)’s inclusion of the proportionality factors
enforces the collective obligation to consider proportionality in
discovery disputes; it does not, however, permit a party to
refuse discovery simply by making a boilerplate objection that
the information requested is not proportional.

See Advisory

Committee Notes to December 1, 2015 amendments.

Further, the

party seeking discovery does not bear the burden of addressing
all of the proportionality factors.

Id.

Also, despite other changes to Rule 26, it is still the case
that information need not be admissible in evidence in order to
be discoverable.

Fed. R. Civ. P. 26(b)(1); see also Mellon v.

Cooper-Jarrett, Inc., 424 F.2d 499, 500-501 (6th Cir. 1970)
(noting that “[t]he scope of examination permitted under Rule
26(b) is broader than that permitted at trial”).
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 from harassment or
oppression which may result even from a facially appropriate
discovery request.

See Herbert v. Lando, 44l U.S. 153 (1979);

see also Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993)(“[I]t is
well established that the scope of discovery is within the sound
discretion of the trial court”)(quoting Chrysler Corp. v. Fedders
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Corp., 643 F.2d 1229, 1240 (6th Cir.), cert. denied 454 U.S. 893
(1981)).

Further, 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
cumulative or duplicative, can be obtained from some other source
which is more convenient, less burdensome, or less expensive, or
if the party seeking the information has had ample opportunity to
obtain it in the action.

See Fed. R. Civ. P. 26(b)(2).

It is

with these general principles in mind that the present discovery
motion will be resolved.
II.
Mr. Brown’s motion to compel with, according to his count,
42 accompanying exhibits, totals 223 pages.

The bulk of these

exhibits, by Mr. Brown’s own admission, have nothing to do with
the issues raised in the motion to compel.

The exhibits relevant

to the motion to compel appear to be the exhibits numbered by Mr.
Brown as 14 and 39-42.

These exhibits include Plaintiff’s First

Request for Production of Documents (Ex. 14); Dr. Eddy’s
Responses to Plaintiff’s Request for Admissions (Ex. 39);
Defendants’ Objections and Responses to Plaintiff’s First Set of
Requests for Production of Documents (Ex. 40); Director Gary
Mohr’s Objections and Responses to Plaintiff’s First Set of
Requests for Admission (Ex. 41); and Defendant Jeffreys’
Objections and Responses to Plaintiff’s First Set of Requests for
Admission (Ex. 42).

In a nutshell, the gist of Mr. Brown’s

motion to compel is that defendants have either refused to
respond to, or “openly lied” in response to, his discovery
requests.
Defendants have responded, explaining Mr. Brown’s motion to
compel as follows:
Plaintiff’s Motion to Compel Discovery seeks to
challenge the truthfulness of Defendants Mohr’s,
Jeffries’, and Eddy’s responses to Plaintiff’s
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discovery requests and to compel production of
Plaintiff’s medical records, Defendants’ personnel
records, Plaintiff’s grievance file, the ODRC’s
policies, visitation logs from the Ross Correctional
Institution (“RCI”) and the Southern Ohio Correctional
Facility (“SOCF”), Plaintiff’s disciplinary file,
Plaintiff’s movement records, records relating to Brown
v. Voorhies, Plaintiff’s mental health records,
Correctional Institution Inspection Committee (“CIIC”)
reports, ODRC statistics, and responses to Plaintiff’s
discovery requests to Defendants Morgan, Hunt and Cool.
Defendants contend that Mr. Brown failed to include a
certification that he conferred with them in good faith prior to
filing his motion.

Further, they contend that a motion to compel

is not the appropriate way to challenge the factual accuracy of
their discovery responses.

Additionally, they explain that, with

respect to Mr. Brown’s request for his medical records, he has
refused to pay for copying as required by ODRC’s policies
regarding access to medical records.

They also assert that the

motion to compel must be denied as to defendants Hunt, Morgan and
Cool for various reasons.

These individuals, however, are

defendants in Mr. Brown’s case pending in the Western Division as
Case No. 1:12-cv-583 and not this case.
In his reply, Mr. Brown challenges the defendants’ position
that a motion to compel is not the correct way to address factual
inaccuracies in discovery responses.

Further, he states under

penalty of perjury that he conferred in good faith with the
defendants before filing his motion to compel.

Finally, he

asserts that he has never refused to pay for his medical records
but requests that he be allowed to receive them for free, keep
them in his cell, and receive $50.00 to cover his expenses.
III.

Analysis

The Court will first address the motion to compel as it
relates to the requests for admissions directed to Dr. Eddy,
Director Mohr, and Mr. Jeffreys (Mr. Brown’s Exhibits 39, 41, and
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42).

Admissions sought under Rule 36 are time-saving devices,

designed to narrow the particular issues for trial.

Seay v.

Cargill, Inc., 2009 WL 10664829 (W.D. Tenn. May 6, 2009), citing
Fed.R.Civ.P. 36 advisory committee notes on 1970 amendments.

In

responding to requests for admissions, Rule 36 requires:
(4) Answer. If a matter is not admitted, the
answer must specifically deny it or state in detail why
the answering party cannot truthfully admit or deny it.
A denial must fairly respond to the substance of the
matter, and when good faith requires that a party
qualify an answer or deny only a part of a matter, the
answer must specify the part admitted and qualify or
deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to
admit or deny only if the party states that it has made
reasonable inquiry and that the information it knows or
can readily obtain is insufficient to enable it to
admit or deny.
If objections are made, “[t]he grounds for objecting to a
request must be stated.”

Fed.R.Civ.P. 36(a)(5).

Upon motion of

the requesting party, the court must determine the sufficiency of
the answer or whether the objection is justified.
36(a)(6).

Fed.R.Civ.P.

If the answering party’s objection is unjustified, the

court shall order that an answer be served.

Id.

If the court

finds that the answer does not comply with Rule 36, the court
“may order either that the matter is admitted or that an amended
answer be served.”

Id.

Despite raising objections, Dr. Eddy, Mr. Jeffreys, and
Director Mohr admitted or denied each of the requests for
admissions.

Mr. Brown does not address the substance of any of

the objections in his motion to compel.

Rather, he simply

challenges the truthfulness of certain denials.

A motion to

compel is not the proper way to argue about the factual accuracy
of a party’s response.

Grant v. Target Corp., 2013 WL 571845, *9

(S.D. Ohio Feb. 13, 2013).

Consequently, the motion to compel

will be denied as it relates to the requests for admissions
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directed to Dr. Eddy, Mr. Jeffreys, and Director Mohr.
Turning to the Request for Production of Documents (Mr.
Brown’s Exhibit 40), it appears from the motion to compel that
Mr. Brown is seeking responses to Request Nos. 2-10 and 12.

A

closer look indicates that the requests cited in his motion do
not correspond to the numbered requests in his document request.
Regardless, defendants have objected to all of Mr. Brown’s
requests for production on numerous grounds including relevance,
overbreadth, and undue burden.

Mr. Brown does not address the

substance of any of these objections in his motion.
Initially, the proponent of a motion to compel discovery
bears the initial burden of proving that the information sought
is relevant.

Guinn v. Mount Carmel Health Systems, 2001 WL

2927254 (S.D. Ohio July 23, 2010).

In order to determine the

relevance of any particular request it is necessary to specify
Mr. Brown’s remaining claims against these defendants.

These

claims include Eighth Amendment claims relating to Mr. Brown’s
medical care against Mr. Jeffries, Director Mohr and Dr. Eddy and
a retaliation claim against Mr. Jeffreys.
Despite Mr. Brown’s failure to coordinate the citations in
his motion to the correct discovery request, a fair reading of
his motion suggests that he has made an attempt to address the
relevance of certain requests.

However, most of his relevance

explanations are directed to requests relating to his access to
the courts claim.
Doc. 197.

That claim has been dismissed.

See Order,

Further, Mr. Brown contends that his request for

“movement records” is relevant as it relates to his retaliation
claim.

However, the Court cannot identify a request for

production directed to these records.

For all other requests

with the exception of his request for his medical records, Mr.
Brown has not addressed the issue of relevance at all.
This brings the Court to the issue of Mr. Brown’s request
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for his medical records.

Mr. Brown’s request and defendants’

response are as follows:
2.

The plaintiff’s complete medical files.

RESPONSE: Objection. Vague; ambiguous; overly broad;
unduly burdensome; unlimited in time, scope, and
subject; and oppressive . Irrelevant to the extent that
it seeks the production of documents regarding matters
not contained in Plaintiff s Third Amended Complaint,
ECF No. 132. Per ECF No. 177, Plaintiff’s claims are
limited to the time periods between January 18, 2011
and April 6, 2011 and between March 15, 2013 and
August
26,
2013.
Cumulative
and
duplicative.
Plaintiff received medical records filed in this case
under ECF No. 48-1 on March 1, 2014. See ECF No. 48-1,
BROWN MEDICAL RECORDS pp. 1-50. Further, pursuant to
R.C. 5120.21 and 07-0RD-11, Plaintiff may review his
medical
records.
Most recently, Plaintiff reviewed
his medical records on August 18, 2016. See Case No.
1:12-cv-583, CF No. 132. Copies of the medical
records flagged by Plaintiff have been made and are
currently available pending Plaintiff's payment of
copying fees.
In his motion to compel, Mr. Brown addresses the issue of
his medical records in this way:
The Plaintiffs’ complete medical file also was
not provided. The plaintiff flagged the records he
wanted but at TCI the warden and medical department
refuse to allow him to have them and the defendants
lawyer has lied to both the warden and the Cincinnati
court saying these records were provided.
Additionally, they limited the record to specific time
limits but no limits should be held because there are
tests and other records that show preexisting
conditions and post harm caused by the denial of
medical care. Additionally, the plaintiff receives
$9.00 per month in state pay and has no other income.
He is being charged for copies for his medical
records. It would take 7 ½ months to buy the copies.
Plaintiff request that the court order these copies
free.
First, to the extent that Mr. Brown objects to a limitation
to a specific time period, that objection has no merit.
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The

Court previously limited the temporal scope of events in this
case as reflected in the defendants’ response.

Mr. Brown does

not dispute the representation in defendants’ response that he
was able to review his medical records in August, 2016.
Presumably, any records addressed to the relevant time period of
his claims in this case would have been available to him during
that review.

He does not suggest otherwise.

Further, his

challenge to the defendants’ representation that the copies he
has requested are available to him if he would pay the copying
fee is marked by inconsistency.

In his motion to compel he

appears to object to the idea that he be expected to pay for his
medical records.

In his reply, he contends that he has never

refused to pay for his medical records but then requests that he
be entitled to receive copies of them free of charge as a
sanction against the defendants.
There is no constitutional or statutory requirement that
the defendants pay for Mr. Brown’s discovery efforts.

See

Hendricks v. Ohio Dept. of Rehabilitation and Correction, 2011
WL 3652423 (S.D. Ohio Aug. 18, 2011).

Although as a pro se

prisoner in a §1983 suit Mr. Brown may pursue any discovery
method allowed under the Federal Rules of Civil Procedure, he
must do so on the same terms as any other civil litigant.
includes paying for his own discovery costs.

Id.

This

When Mr.

Brown has the means to pay for copies, as defendants have
acknowledged, he is entitled to copies of his medical records.
For the reasons stated above, the motion to compel (Doc.
198) is denied.
MOTION FOR RECONSIDERATION
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. 14-01,
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pt. IV(C)(3)(a).

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 even if a motion for
reconsideration has been filed unless it is stayed by either 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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