Bennett v. Mohr et al

Filing 76

OPINION AND ORDER granting in part and denying in part 69 Motion to Compel. Defendants are ORDERED to supplement their discovery responses consistent with the foregoing. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/20/2016. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRTICT COURT
SOUTHER DISTRICT OF OHIO
EASTERN DIVISION
JOHN BENNETT,
Plaintiff,
Civil Action 2:14-cv-1450
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

GARY MOHR, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, John Bennett, an inmate who is proceeding without the assistance of counsel,
brings this prisoner civil rights action under 42 U.S.C. § 1983 alleging that he was denied access
to the library, which he alleges in turn interfered with his First Amendment right of access to the
courts. This matter is before the Court for consideration of Plaintiff’s Motion to Compel
Discovery (ECF No. 69), Defendant’s Memorandum in Opposition (ECF No. 70), and Plaintiff’s
Reply (ECF No. 75). For the reasons that follow, Plaintiffs’ Motion is GRANTED IN PART
AND DENIED IN PART.
I.
On September 4, 2014, Plaintiff filed this action naming numerous employees of the
Ohio Department of Rehabilitation Correction (“ODRC”) and Madison Correctional Institution
(“MaCI”) as Defendants. In the October 7, 2014 Initial Screen Report and Recommendation
(ECF No. 4), which the Court adopted in its November 20, 2014 Order (ECF No. 21), Magistrate
Judge Abel recommended allowing Plaintiff to proceed against Defendant Thomas King, the
MaCI librarian, and Defendant Jason Bunting, the MaCI warden. Magistrate Judge Abel

summarized Plaintiff’s allegations against Defendants King and Bunting (collectively
“Defendants”) as follows:
The complaint alleges that King repeatedly denied plaintiff Bennett access to the
law library, delayed his access to the law library, retaliated against him for the
exercise of the right of access to courts, created an unsafe/hostile environment,
and ordered unreasonable searches of King for other inmates’ legal work.
Warden Jason Bunting is alleged to have been aware of King’s unlawful conduct
and to have condoned it.
(Oct. 7, 2014 Report & Rec. 2–3, ECF No. 4.) Magistrate Judge Abel also noted that Plaintiff
had alleged that Defendants’ conduct had caused him to miss the statute of limitations for filing a
federal habeas corpus petition. (Id. at 5.)
On November 9, 2015, the Court issued an Order denying without prejudice Plaintiff’s
earlier-filed motions to compel on the grounds that he failed to satisfy the certification
requirement set forth in Rule 37(a) and also because it appeared that subsequent correspondence
between the parties rendered the motions moot in part. (ECF No. 65.) The Court then set forth
deadlines for exchanging correspondence regarding any outstanding disputes in an effort to assist
the parties in the identification and resolution of any remaining disputes.
Plaintiff filed the subject Motion to Compel Discovery on February 8, 2016. (ECF No.
69.) Plaintiff represents that despite good faith attempts to confer with Defendants, disputes
remain concerning a number of the interrogatories and document requests he propounded.
Plaintiff attached to his Motion to Compel a renumbered set of written discovery requests that
were outstanding as of December 2015. (ECF No. 69-2.) For each newly-numbered request,
Plaintiff refers to the original number of the request in the earlier-served discovery. For clarity
and ease of reference, the Court will refer only to the original numbers of the disputed requests
as reflected in ECF Nos. 46-1, 46-2, 53-2, 69-2, 69-3, and 70-3.

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In their Memorandum in Opposition, Defendants maintain that they have either properly
responded or objected to any of the alleged outstanding deficiencies. (ECF No. 70.) In his
Reply, Plaintiff offers arguments in support of his position concerning each of the disputed
discovery requests.
The Court will review the parties’ arguments with regards to each of the disputed
requests below.
II.
Federal Rule of Civil Procedure 37 permits a party to file a motion for an order
compelling discovery if another party fails to respond to discovery requests, provided that the
motion to compel includes a certification that the movant has, in good faith, conferred or
attempted to confer with the party failing to respond to the requests. Fed. R. Civ. P. 37(a)(1).
The Court is satisfied that this prerequisite to filing a discovery motion has been satisfied.
Determining the scope of discovery is within the Court’s discretion. Bush v. Dictaphone
Corp., 161 F.3d 363, 367 (6th Cir. 1998). As the United States Court of Appeals for the Sixth
Circuit has recognized, “[t]he scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir.
1998). Federal Rule of Civil Procedure 26(b)(1), which sets forth the permissible scope of
discovery, provides as follows:
(1) Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.

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Fed. R. Civ. P. 26(b)(1).
“[T]he proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” Guinn v. Mount Carmel Health Sys., No. 2:09-cv-226, 2010
WL 2927254, at *5 (S.D. Ohio July 23, 2010) (Kemp, J.) (quoting Clumm v. Manes, No. 2:08–
cv–567 (S.D. Ohio May 27, 2010) (King, J.)); see also Berryman v. Supervalu Holdings, Inc.,
No. 3:05-cv-169, 2008 WL 4934007, at *9 (S.D. Ohio Nov. 18, 2008) (“At least when the
relevance of a discovery request has been challenged the burden is on the requester to show the
relevance of the requested information.”) (internal citation omitted)).
III.
Plaintiff challenges the sufficiency of Defendants’ responses to fifteen of his written
discovery requests. The Court considers each disputed request in turn, addressing them in the
order Plaintiff presents them in his Motion to Compel.
A.

Interrogatory Number Twenty-Three
Plaintiff’s Interrogatory Number Twenty-Three, which also contains a request for the

production of documents, propounded on Defendant King, states as follows:
In paragraph 53, an allegation was made that the complaints that Plaintiff Bennett
was making against you (Defendant King) were not being properly looked into by
staff at MCI. Did you (Defendant King) have anything to do with the
investigations, who was to conduct those investigations, did you (Defendant
King) follow any recommendations related to these improperly investigated
complaints. Produce any related document(s).
(Defs.’ Answers to Pl’s Ints. 8, ECF No. 46-1.)
According to Plaintiff, Defendants’ response to the foregoing Interrogatory remains
deficient because “no documents were produced to show who conducted the investigation, any
investigation report, or any related document.” (ECF No. 69-2 at p. 1.) In his Motion, he further
asserts that Defendants are representing that he was the only inmate who filed grievances against
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Defendant King. Plaintiff acknowledges that he has received more than three-hundred pages of
documents containing informal complaint resolutions (“ICR”) from Defendants that consist of
complaints other inmates made against Defendant King. Plaintiff maintains that the additional
documentation he seeks is relevant because it would demonstrate the identity of the individuals
who conducted the investigations of these complaints as well as whether any recommendations
were made that Defendant King failed to follow.
In their Memorandum in Opposition, Defendants clarify that they made no
representations that Plaintiff was the only inmate to have filed grievances against Defendant
King. Defendants point out that they provided more than 300 pages of ICRs to Plaintiff that
other inmates filed, but that the names of the inmates had been redacted in order to protect their
identities. Defendants maintain that further documentation regarding the complaints of other
inmates is unduly burdensome and constitutes a fishing expedition. Defendants further challenge
the relevancy of any additional documentation. Defendants assert that documents relating to the
ICRs of other inmates lack relevance because Plaintiff cannot assert arguments on behalf of
others. Defendants further assert that the documents are not relevant because liability cannot be
established on the basis of respondeat superior.
Plaintiff’s request for production of additional documentation has merit insofar as he
seeks additional documentation concerning reports or other documents that relate to the
complaints he filed against Defendants regarding library access. Such documentation could bear
on Defendants’ knowledge of the alleged complaints and serve as evidence that either
corroborates or undermines a party’s version of what actions had been taken or not taken.
Consistently, Magistrate Judge Abel, in recommending denial of Defendant Warden Bunting’s

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Motion to Dismiss, relied upon dispositions of grievances and reports sent to Defendant Bunting
to conclude that Plaintiff had sufficiently stated a claim against him, reasoning as follows:
While there were a number of grievances filed by plaintiff that were without
merit, plaintiff has identified a number of occasions where the warden was alerted
to what appears to be an ongoing problem with the library. I believe that plaintiff
has adequately stated a claim against the warden on the basis of plaintiff’s
repeated complaints, which resulted in numerous reports and recommendations
being submitted to the warden. The complaint alleges despite these repeated
reports and recommendations, the warden failed to address the conduct of King
supporting plaintiff’s claim that the warden implicitly authorized or acquiesced in
the unconstitutional conduct.
(Feb. 24, 2015 Report & Rec. 7–8, ECF No. 36 (adopted May 27, 2015 Order, ECF No. 51).)
Magistrate Judge Abel also quoted from several dispositions of grievances that referenced
reports that had been submitted to Defendant Bunting. (Id. at 6–7.) The Court agrees that the
reports Magistrate Judge Abel referenced, as well as other similar types of documents, including
other reports, investigation findings, or other similar documents that were generated as a result of
or in response to Plaintiff’s complaints are relevant and discoverable. Accordingly, WITHIN
TWENTY-ONE DAYS OF THE DATE OF THIS ORDER, Defendants must produce the
foregoing documentation and may redact any identifying information that they believe may
compromise institutional security or inmate safety. To the extent that any of this documentation
contains particular recommendations, in accordance with Plaintiff’s discovery request,
Defendants must also identify whether they implemented each of the recommended courses of
action.
The Court need not address whether documentation relating to complaints other inmates
filed is discoverable because it is outside the scope of this discovery request. Finally, to the
extent that the identities of the individuals who performed the investigations of Plaintiff’s
grievances against Defendants is not readily discernable from the face of the documents

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Defendants have produced or will be producing pursuant to this Opinion and Order, Defendants
need not identify the author by name, but must at least identify the position they held.
B.

Document Request Number 12
Plaintiff’s Document Request Number Twelve, which is more properly characterized as

an interrogatory, states as follows: “Is there a security post within the library and if so, who is
assigned to this post[?]” (ECF No. 46-2 at p. 7.) Defendants challenge the relevancy of this
request. According to Plaintiff, this question is relevant because it shows that “no security post
is in the library and that at one time, there was.” (Pl.’s Mot. to Compel 3, ECF No. 69.) Plaintiff
posits that if there had been a security post as is required under the prison’s policy, the library
could have remained open when Defendant King failed to show up for work. The relevant
inquiry, then, is whether the library remained open when Defendant King failed to come to work.
The Court therefore MODIFIES Request Number Twelve to request that Defendants identify
the days that Defendant King failed to work in the library and identify whether or not the library
remained open for those days. If the library was opened but for reduced hours, Defendants
should note so. Defendants must provide their supplemental response to this interrogatory
WITHIN TWENTY-ONE DAYS OF THE DATE OF THIS ORDER.
C.

Document Request Number 14
Plaintiff’s Document Request Number Fourteen, which is more properly characterized as

an interrogatory, states as follows: “What is the policy as it relates to the procedures when the
library is full and what is done to advise when not full after being turned away as full.” (ECF
No. 42-2 at p. 8.) In his Motion to Compel, Plaintiff represents that inmates who were turned
away from the library “are going to chow.” (Pl.’s Mot. to Compel 3, ECF No. 69.) He appears
to assert that Defendants point to inmate abuse of their library passes as a basis for denying

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library passes or changing the schedule of the library. He maintains that this request is targeted
at assessing the veracity of Defendants’ assertion of inmate abuse. Defendants respond that
proof of inmate abuse of library passes would be found in conduct reports and assert that those
records were not requested and that exposing such records would violate the privacy of the
institutional records of other inmates.
The Court agrees with Defendants that production of inmates’ conduct reports relating to
abuse of library passes is outside the scope of Plaintiff’s discovery request. The information
Plaintiff seeks, however, is both relevant and discoverable. Defendants must therefore provide
their response to this interrogatory WITHIN TWENTY-ONE DAYS OF THE DATE OF
THIS ORDER. In lieu of describing any policy or procedure MaCI employs when the library is
full or what its policy is with regard to informing inmates who were turned away of a vacancy,
Defendants may produce copies of any relevant written procedures it employs.
D.

Document Request Number 22
Plaintiff’s Document Request Number Twenty-Two, which is more properly

characterized as an interrogatory, states as follows: “What are the current qualifications of the
inmate law clerks and when [were] their last qualifications tests[s] administered[?]” (ECF No.
46-2 at p. 10.) Plaintiff asserts that he seeks this information in order to “show that the inmate
law clerks are not qualified.” (Pl.’s Mot. to Compel. 4, ECF No. 69.) Plaintiff adds that “[h]ad
the inmates been qualified, . . . then problems that [he] had with [them] would not have
occurred.” (Id.) In their Memorandum in Opposition, Defendants challenge the relevancy of
this request pointing out that Plaintiff has not demonstrated or even suggested that the
incompetency of an inmate legal clerk was the reason that he missed his habeas filing deadline.
Defendants also point out that just as Plaintiff has no right to counsel in a habeas proceeding, he

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also has no right to an inmate legal clerk. In his Reply, Plaintiff generally asserts that the
absence of a qualified legal inmate “is part of why” his habeas action was dismissed as untimely.
(Pl.’s Reply 4, ECF No. 75.)
The Court agrees with Defendants that Plaintiff has failed to satisfy his burden to
demonstrate the relevance of this request. Notwithstanding Plaintiff’s failure to sufficiently
allege that the absence of a qualified inmate legal clerk impacted his habeas filing, the Court is
unaware of any authority that provides a constitutional right to a qualified inmate legal clerk.
Indeed, courts have rejected an inmate’s reliance upon the bad advice from inmate legal library
clerks as a ground to find equitable tolling of habeas petitioners’ claims. See, e.g., Urena v.
Brown, No. 06–cv–3163, 2007 WL 3284646, at *2 (S.D.N.Y. Nov. 5, 2007) (declining to apply
equitable tolling to habeas petitioner’s claim where he received “erroneous advice from an
inmate legal library clerk” and citing cases reaching the same result). Relatedly, as Defendants
correctly point out, there is no constitutional right to counsel in habeas proceedings. Cobas v.
Burgess, 306 F. 3d 441, 444 (6th Cir. 2002) (citation omitted). In addition, “an inmate’s lack of
legal training, his poor education, or even his illiteracy does not give a court reason to toll the
statute of limitations” in habeas proceedings. Id. (citation omitted). Accordingly, Plaintiff’s
request for an order compelling Defendants to respond to his Document Request Number
Twenty-Two is DENIED.
E.

Document Request Number 24
Plaintiff’s Document Request Number Twenty-Four states as follows: “Produce the log

book or otherwise that shows the last time Defendant King made rounds to rotate the books for
leisure within the prison [b]locks bookshelves.” (ECF No. 46-2 at p. 11.) Defendants challenge
this request on the grounds of relevancy, asserting that whether the leisure books were rotated

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has no bearing on Plaintiff’s claims in this action. The Court agrees that Plaintiff has failed to
demonstrate the relevancy of this request. Accordingly, Plaintiff’s request for an order
compelling Defendants to respond to his Document Request Number Twenty-Four is DENIED.
F.

Document Request Number 25
Plaintiff’s Document Request Number Twenty-Five, which is more properly

characterized as an interrogatory, states as follows: “When [was] a directive to Defendant King
to install a scanner in the library that would relieve the hallway traffic of inmates and when was
this scanner installed[?]” (ECF No. 46-2 at p. 11.) Defendants responded that the scanner was
installed in May 2015, but that it is currently deactivated. In his Motion to Compel, Plaintiff
posits that installation of a scanner in the library would have prevented lines in the main hallway.
Defendants challenge Plaintiff’s request on the grounds of relevancy, asserting that Plaintiff has
no constitutional right to a scanner. In his Reply, Plaintiff states that “[c]urrently, there is no
scanner installed in the library and somehow no lines are being formed in the main hallway . . . .”
(Pl.’s Reply 5, ECF No. 75.) The Court is unclear as to what Plaintiff maintains remains to be
answered concerning this request. Regardless, the Court is unable to discern the relevancy of
any further information relating to the installation of the scanner. Accordingly, Plaintiff’s
request for an order compelling Defendants to respond to his Document Request Number
Twenty-Five is DENIED.
G.

Document Request Number 28
Plaintiff’s Document Request Number Twenty-Eight, which is both an interrogatory and

a document request, states as follows: “How many days has the Institutional Library been closed
or opened late since 2011, [and] produce any related documents.” (ECF No. 46-2 at p. 12.)
Defendants responded that they had no documents that specifically kept the information he

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sought in this request and have no duty create records. Defendants informed Plaintiff that
“[n]evertheless, Defendant King endeavored to provide a list of days when he recalled being out
or the library closed” and provided Plaintiff Defendant’s King’s documentation. (Defs.’ Mem. in
Opp. 15, ECF No. 70.) In his Motion to Compel, Plaintiff asserts that the document Defendant
King prepared was inaccurate based upon other documentation he has obtained that demonstrates
library closures in excess of what Defendant King represents. Plaintiff further submits that a
master log must be kept pursuant to prison policy and that this log would show library closures.
Defendants are correct that they are not required to create records in order to respond to
Plaintiff’s discovery requests. See, e.g., In re Porsche Cars, N.A., Inc., No. 2:11–md–2233, 2012
WL 4361430, at *9 (S.D. Ohio Sept. 25, 2012) (“If Defendants indicate that, after a reasonable
inquiry, no documents exist that are responsive to the request, then their obligations under the
Federal Rules are satisfied and the Court can compel nothing more.”) (citing Retail Ventures,
Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 2:06–CV–443, 2007 WL 3376831, at *2
(S.D. Ohio Nov. 8, 2007) and Fed. R. Civ. P. 34(a)). If, however, Plaintiff is correct that such a
master log exists that would reflect when the library was open and closed, than Defendants must
produce that log WITHIN TWENTY-ONE DAYS OF THE DATE OF THIS ORDER. In
addition, if (1) the MaCI library was, in fact, closed on days or times when Defendant King was
not at work; and (2) Defendants have access to records that would reflect when he was off work,
then Defendants must provide a list of those days (or partial days) on which Defendant King was
not at work WITHIN TWENTY-ONE DAYS OF THE DATE OF THIS ORDER. If no such
documents exist, Defendant King must identify the methodology he employed to reconstruct the
days he believes the library was closed, including identification of any documents upon which he
relied WITHIN TWENTY-ONE DAYS OF THE DATE OF THIS ORDER.

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H.

Interrogatory Number 15
Plaintiff’s Interrogatory Number Fifteen states as follows: “What is the policy for

illiterate/uneducated or non-English Speaking inmates who have a need for legal help.” (ECF
No. 53-2 at p. 6.) In response to this interrogatory, Defendants identified and copied in a section
of the prison’s operative policy. Neither Plaintiff’s Motion to Compel nor his Reply identify
how Defendants’ response was deficient. Plaintiff’s request for an order compelling Defendants
to respond to his Interrogatory Number Fifteen is therefore DENIED.
I.

Interrogatory Number 24
Plaintiff’s Interrogatory Number Twenty-Four states as follows: “When inmate conduct

reports have been overturned, what is the procedure to return to the inmate any sanctions that
have been assessed against him[?]” (ECF No. 53-2 at p. 8.) In response to this interrogatory,
Defendants identified the operative policy. In his Motion to Compel, Plaintiff complains that
Defendants should have responded with an explanation of how his particular conduct-report
reversal was assessed, including any related paperwork. Defendants counter that this
information is outside the scope of Plaintiff’s request. The Court agrees. Accordingly,
Plaintiff’s request for an order compelling Defendants to respond to his Interrogatory Number
Twenty-Four is DENIED.
J.

Document Request Numbers 6, 15, 26, and 27
In his Motion to Compel, Plaintiff states that the response of Defendant Bunting is

illegible, but fails to identify any particular document that is illegible. Plaintiff maintains that the
documents at issue are relevant to show that Defendant Bunting was aware of Defendant King’s
unconstitutional behavior. Defendants point out that the only challenge to the legibility of the
documents they produced that Plaintiff raised in identifying any outstanding discovery disputes

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pursuant to the Court’s November 9, 2015 Order was his newly-numbered interrogatory request
number 32 in which he indicates that he could not read bates number 912 of Defendants’
production. (Defs.’ Mem. in Opp. 21, ECF No. 70 (citing ECF No. 69-2 at p 2).) Defendants
represent that they are in the process of requesting the author of bates number 912 to identify
what he wrote and that they will provide the translation to Plaintiff. Based upon the Court’s
review of the outstanding issues Plaintiff identified in ECF No. 69-2 and Defendants’
representations, the Court considers Plaintiff’s illegibility challenge moot. Plaintiff raises
additional challenges in his Reply, but in accordance with well-settled authority, the Court
declines to entertain arguments raised for the first time in a reply brief. See Bishop v. Oakstone
Academy, 477 F. Supp.2d 876, 889 (S.D. Ohio 2007) (“[I]t is well established that a moving
party may not raise new issues for the first time in its reply brief.”); United States v. Galaviz, 645
F.3d 347, 362 (6th Cir. 2011) (“We do not usually entertain new arguments raised for the first
time in a reply brief.”) (citation omitted)); United States v. Demjanjuk, 367 F.3d 623, 637 (6th
Cir. 2004) ( “As a general rule, this Court does not entertain issues raised for the first time in [a] .
. . reply brief.”). Accordingly, Plaintiff’s request for an order compelling Defendants to respond
to his Document Request Numbers 6, 15, 26, and 27 is DENIED AS MOOT.
K.

Document Request Number 18
Plaintiff’s Document Request Number Eighteen states as follows: “Produce the directive

given as shown in grievance number MCI-02-14-18 (exhibit NN).” (ECF No. 70-3 at p. 7.)
Defendants produced an email, bates numbered 822, that they represent constitutes the source of
the directive referenced in the grievance at issue. Plaintiff maintains that this email does not
supply the authority to allow for changes to ODRC policy. He therefore continues to seek
additional documentation relating to the directive. Defendants confirm that the email constitutes

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the directive and maintain that Plaintiff’s challenges to the formality of the email do not render
their response deficient. Defendants also challenge the relevancy of Plaintiff’s request. The
Court agrees that Plaintiff’s challenge to the sufficiency of the email produced as the basis upon
which to change an ODRC policy does not bear on the sufficiency of Defendants’ response.
Because Defendants have produced the documents Plaintiff requests, his request for an order
compelling Defendants to respond to his Document Request Number 18 is DENIED AS
MOOT.
L.

Document Request Number 19
Plaintiff’s Document Request Number Nineteen states as follows: “Produce the

documents that pertain to grievance number MCI-03-14-67 (exhibit UU) as ‘it was in the best
interest of MCI that offenders will not get make up passes’ and the ‘email sent’ to Defendant
[K]ing.” (ECF No. 70-3 at p. 7.) Defendants supplied document bates number 961, an email
sent to Defendant King, in response to this document request and further informed Plaintiff that
“the decision was made, but not necessarily documented.” (Id. at p. 8.) Defendants represent in
their Memorandum in Opposition that this was the only document that they are aware of that
responds to Plaintiff’s request. Defendants need only conduct a good faith search and produce
responsive documents. Although the Court suspects they have already completed the task, if
they have not, they must perform such a search and produce responsive documents WITHIN
TWENTY-ONE DAYS OF THE DATE OF THIS ORDER. As set forth above, Defendants
need not create documents that do not exist.  

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IV.
For the reasons set forth above, Plaintiff’s Motion to Compel is GRANTED IN PART
AND DENIED IN PART. (ECF No. 69). Defendants are ORDERED to supplement their
discovery responses consistent with the foregoing.
IS SO ORDERED.
Date: May 20, 2016

/s/ Elizabeth A. Preston Deavers________
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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