Gabel v. Hudson et al

Filing 58

OPINION AND ORDER denying 46 and 53 Motions to Compel. Signed by Magistrate Judge Norah McCann King on 10/27/2015. (pes)(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
KERMIT GABEL,
Plaintiff,
Civil Action 2:14-cv-1057
Judge Watson
Magistrate Judge King

vs.
STUART HUDSON, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, formerly a state inmate1 proceeding without the
assistance of counsel, brings this civil rights action under 42 U.S.C.
§ 1983, claiming that he was denied medical or dental care in
violation of his rights under the Eighth and Fourteenth Amendments to
the United States Constitution while incarcerated at the Marion
Correctional Institution (“MCI”).

This matter is now before the Court

on plaintiff’s Motion to Compel Discovery, ECF 46 (“First Motion to
Compel”) and plaintiff’s Motion to Compel Discovery Request Mailed
7/22/15, ECF 53 (“Second Motion to Compel”) (collectively, “motions to
compel”).

Defendants oppose the motions to compel.

See ECF 47

(“Defendants’ First Response”); ECF 57 (“Defendants’ Second
Response”).

No reply memorandum has been filed in support of the

motions to compel.
Plaintiff’s motions to compel seek the same relief, namely, an
order compelling production of certain documents as well as

1

Since the institution of the action, plaintiff has been released from state
custody. ECF 25, 26.

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supplemental answers to interrogatories.
to Compel; Second Motion to Compel.

See generally First Motion

As to the requested documents,

plaintiff represents that, on “June 3, 2015 plaintiff mailed defense
counsel a letter advising her where copies of his dental files could
be found in the OAG’s office” and that he specifically requested the
production of “records covering medical issues that occurred on”
particular dates (“plaintiff’s letter”).

First Motion to Compel, p.

2; Second Motion to Compel, p. 1 (“Plaintiff on June 3, 2015 requested
a copy of his complete dental record when he paid for said copies.”).
Plaintiff complains that defendants have “failed to produce one single
paper under discovery.”

First Motion to Compel, p. 2.

Defendants oppose the First Motion to Compel on a number of
bases.

First, defendants argue that plaintiff failed to comply with

Fed. R. Civ. P. 37(a) and S.D. Ohio Civ. R. 37.1 because he failed to
attach a certification that he had conferred in good faith or had
attempted to confer with defendants and because he failed to exhaust
all extrajudicial efforts for resolving the dispute before he filed
the First Motion to Compel.

Defendants’ First Response, pp. 1-2;

Defendants’ Second Response, pp. 2-3.

Next, defendants contend that

they never received plaintiff’s letter and, even if they had, they are
under no obligation to respond to informal discovery requests.
Defendants’ First Response, pp. 1-2; Defendants’ Second Response, pp.
3-5.

Defendants’ arguments are well-taken.
Rule 37 of the Federal Rules of Civil Procedure authorizes the

filing of a motion to compel discovery when a party “fails to respond
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that inspection will be permitted – or fails to permit inspection – as
requested under Rule 34.”

Fed. R. Civ. P. 37(a)(3)(B)(iv).

This

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.”

Fed. R. Civ. P. 37(a)(1).

In the case presently before the

Court, plaintiff has failed to attach the required certificate and
defendants’ counsel represents that plaintiff failed to follow up with
defense counsel about a response to plaintiff’s letter before filing
the motions to compel.

See Defendants’ First Response, p. 3;

Defendants’ Second Response, pp. 2-3.
Plaintiff questions why he “should be required to exert extra
judicial means in discovery where the court’s scheduling order is
enough to force discovery compliance[.]”
2.

Second Motion to Compel, p.

However, pro se litigants must also comply with the Federal Rules

of Civil Procedure.

See, e.g., McNeil v. United States, 508 U.S. 106,

113 (1993) (“[W]e have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”); Frame v. Superior
Fireplace, No. 03-5233, 74 F.App’x 601, at *603 (6th Cir. Sept. 10,
2003) (“[T]hose who proceed without counsel must still comply with the
procedural rules that govern civil cases.”).

Plaintiff has not

complied with the mandatory prerequisites to the filing of a motion to
compel.

For this reason alone, the motions to compel must be denied.

In any event, plaintiff’s request to compel the production of
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documents sought in plaintiff’s letter is nevertheless not well-taken.
As noted supra, defendants represent that they did not receive
plaintiff’s letter requesting the production of documents, and that
the first that they learned of the letter was in the Motion to Compel.
See Defendants’ First Response, p. 3; Defendants’ Second Response, p.
3.

Although plaintiff states that he “mailed courtesy copies of his

discovery requests to the clerk as proof to the clerk[,]” Second
Motion to Compel, p. 1, it is not clear that these “discovery
requests” included the letter purportedly sent to defense counsel on
June 3, 2015.

In any event, discovery requests and responses may not

be filed with the Court “until they are used in the proceeding or the
court orders” the filing of the discovery requests or responses.
Fed. R. Civ. P. 5(d)(1).
discovery requests).

See

See also Order, ECF 44 (striking plaintiff’s

In short, nothing in the record establishes that

defense counsel ever received a copy of plaintiff’s letter purportedly
mailed on June 3, 2015.

The Court cannot compel defendants to respond

to a request that they never received.
Plaintiff’s request to compel supplemental answers to his
interrogatories is likewise unavailing.

Again, plaintiff failed to

include the required certification. Moreover, the First Motion to
Compel is deficient on the merits.

Rule 37 of the Federal Rules of

Civil Procedure authorizes the filing of a motion to compel discovery
when a party either fails to answer an interrogatory or submits “an
evasive or incomplete disclosure, answer, or response.”
P. 37(a)(3)(B)(iii), (4).

Fed. R. Civ.

Plaintiff does not argue that defendants
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failed to answer his interrogatories, see First Motion to Compel, pp.
2-3; he complains that defendants included seventeen (17)
“boilerplate” objections.

Id.

However, it is impossible for the

Court to analyze the sufficiency of defendants’ answers and objections
because plaintiff has not provided the interrogatories, defendants’
answers, or defendants’ objections.

Cf.

S.D. Ohio Civ. R. 37.2

(“Only those specific portions of the discovery documents reasonably
necessary to a resolution of the motion shall be included as an
attachment.”).
WHEREUPON, plaintiff’s motions to compel, ECF 46 and ECF 53, are
DENIED.
The parties are REMINDED that the discovery completion date
remains November 1, 2015 and that dispositive motions must be filed,
if at all, no later than December 15, 2015.

Preliminary Pretrial

Order, ECF 39, pp. 2-3.

October 27, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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