Harris v. Sowers et al

Filing 129

ORDER - Plaintiff's Third Motion to Compel 96 is DENIED WITHOUT PREJUDICE and Plaintiff's Motion for Expenses 109 is DENIED. The Court will issue a new discovery schedule by separate Order. Signed by Magistrate Judge Elizabeth Preston Deavers on February 27, 2019. (jlk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LIONEL HARRIS,
Plaintiff,
Civil Action 2:16-cv-888
Judge James L. Graham
Chief Magistrate Judge Elizabeth P. Deavers

v.

AARON SOWERS, et al.,
Defendants.
OPINION AND ORDER
Plaintiff, Lionel Harris, an Ohio inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendants, employees of
Madison Correctional Institution. This matter is before the Court for consideration of Plaintiff’s
Third Motion to Compel (ECF No. 96) and Plaintiff’s Motion for Expenses (ECF No. 109). For
the reasons that follow, Plaintiff’s Motions are DENIED.
I.
Plaintiff moves to compel responses to his second request for production of documents.
(ECF No. 96.) 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).
Here, Plaintiff avers that he mailed to defense counsel a copy of the second request for
production of documents on May 15, 2018. (Plaintiff’s Affidavit, ECF No. 96, at PAGEID #
979.) According to Plaintiff, he also mailed a follow-up letter to defense counsel on June 18,
2018, but received no response. (ECF No. 96 at 2; id. at PAGEID # 983 (copy of Plaintiff’s

letter).) Defendants represent that their counsel has no record of Plaintiff’s follow-up letter and,
therefore, Plaintiff has failed attempt to confer prior to filing the Third Motion to Compel, in
violation of Rule 37(a)(1). (ECF No. 101.) Under the present circumstances, the Court will
presume that Plaintiff has satisfied the requirements under Rule 37(a)(1) and will consider the
Third Motion to Compel.
“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[.]” Fed. R. Civ. P. 26(b)(1).
However, while a plaintiff should “not be denied access to information necessary to establish her
claim” a plaintiff may not be “permitted to ‘go fishing’ and a trial court retains discretion to
determine that a discovery request is too broad and oppressive.” Superior Prod. P’ship v.
Gordon Auto Body Parts Co., 784 F.3d 311, 320–21 (6th Cir. 2015) (quoting Surles ex rel.
Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (internal quotation marks
omitted)); see also In re Bayer Healthcare & Merial Ltd. Flea Control Prod. Mktg. & Sales
Practices Litig., 752 F.3d 1065, 1074 (6th Cir. 2014) (“‘[D]istrict courts have discretion to limit
the scope of discovery where the information sought is overly broad or would prove unduly
burdensome to produce.’”) (quoting Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 457
(6th Cir. 2008)). Finally, “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 Sys.,
No. 2:09-cv-226, 2010 WL 2927254, at *5 (S.D. Ohio July 23, 2010) (quoting Clumm v. Manes,
No. 2:08-cv-567 (S.D. Ohio May 27, 2010)).
Here, Plaintiff contends that Defendants failed to respond at all to his second request for
production of documents. (ECF No. 96.) In response, Defendants attach their responses to the

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second request for production of documents and ask that the Court deny the Third Motion to
Compel as they have now answered Plaintiff’s request. (ECF No. 101.) Plaintiff argues in reply
that the Court should grant the Third Motion to Compel as Defendants’ responses remain
deficient:
Plaintiff further asserts that the motion to compel should be granted because, as
stated in PLAINTIFF’S OBJECTION TO DEFENDANTS’ RESPONSE TO
SECOND REQUEST FOR PRODUCTION OF DOCUMENTS, defendants still
have not complied with the request, their objections are boilerplate and inapplicable
and Plaintiff’s request are self-explanatory, concise and clearly within the
discovery scope of Rule 26(b)(l) and relevant to the subject matter in this action.
Plaintiff made nine (9) requests. Defendants supplied answers for four (4) of the
nine (9) requests. Therefore, they have still not complied with Plaintiff’s discovery
request and this motion to compel should be granted to provide the discovery that
the Federal Rules of Civil Procedure allows.
(ECF No. 112 at 2–3.)
Plaintiff does not attach this “Objection” to his reply in support of the Third Motion to
Compel. (See generally ECF No. 112.) After reviewing the docket, it appears that the
“Objection” to which Plaintiff refers is filed as a separate document, raising new arguments as to
why specific responses are deficient. (ECF No. 110.) However, as this Objection was filed
separately and apparently outside the memoranda permitted by this Court, see S.D. Ohio Civ. R.
7.2(a)(2) (“No additional memoranda beyond those enumerated [motion, response, and reply] are
permitted except upon leave of court for good cause shown.”), Defendants did not respond to this
Objection. The Court also notes that Plaintiff filed his Objection (ECF No. 110) without first
trying to informally resolve these specific objections with Defendants. Moreover, it may be that
Defendants have responded off the record to Plaintiff’s Objection, which is not reflected on the
docket. Without the benefit of a response from Defendants as to Plaintiff’s objections to specific

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responses, however, the Court is unable to confirm that a live controversy as to these requests
exists and, if so, unable to resolve the merits of Plaintiff’s objections. Although the deadline for
completing discovery has passed (ECF No. 91), the Court finds that, under the circumstances of
this particular case,1 discovery should be re-opened and extended for a limited period.
For these reasons, Plaintiff’s Third Motion to Compel (ECF No. 96) is DENIED
WITHOUT PREJUDICE. The Court will issue a new discovery schedule by separate Order.
The parties are REMINDED that they must file a motion to bring a discovery dispute to the
Court’s attention and may do so only after exhausting all extrajudicial efforts to resolve the
dispute. See Fed. R. Civ. P. 37.
II.
Plaintiff moves for an award of expenses under Federal Rule of Civil Procedure
37(a)(5)(C)2 in connection with preparing and filing an earlier-filed Motion to Compel (ECF No.
50), which the Court previously granted in part and denied in part (ECF No. 100). (ECF No.
109.) Defendants oppose the Motion for Sanctions (ECF No. 114) and Plaintiff has filed a reply
memorandum (ECF No. 118).
Where a motion is granted in part and denied in part, a court “may, after giving an
opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P.
37(a)(5)(C) (emphasis added). A court has discretion in determining an appropriate sanction
under Rule 37. See Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642–43 (1976);

The Court also notes that Plaintiff has filed a separate “Objection” to Defendants’ supplemental
answers to interrogatories. (ECF No. 105.) Defendants have not filed a response to this
Objection.
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Plaintiff cites to Rule 37(a)(4)(C) (which does not exist) but then quotes from Rule 37(a)(5).
The Court therefore understands that Plaintiff intends to move pursuant to Rule 37(a)(5).
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Intercept Sec. Corp. v. Code-Alarm, Inc., 169 F.R.D. 318, 321 (E.D. Mich. 1996).
In the present case, Plaintiff seeks an award of $250, which includes $50 for out-ofpocket costs, such as printing, copying, and mailing, as well as $200 for fees charged by a
“jailhouse paralegal.” (ECF No. 109 at 3; Declaration of Charles Watkins, ECF No. 109 at
PAGEID # 1070.) As an initial matter, the Court is not persuaded that awarding sanctions in
connection with fees charged by jailhouse paralegal is appropriate. Cf. Pickholtz v. Rainbow
Tech., Inc., 284 F.3d 1365, 1376 (Fed. Cir. 2002) (“Rule 37 does not empower the district court
to award attorney fees to a pro se litigant.”); Tuggle v. Barksdale, 641 F. Supp. 34, 36 n.1 (W.D.
Tenn. 1985) (“The jail officials do not allow jailhouse lawyers to charge fees[.]”). In addition,
Plaintiff prevailed only to a limited degree. Finally, in its Opinion and Order, the Court
determined that Plaintiff failed to confer with opposing counsel in accordance with Rule 37(a)(1)
before filing his Motion to Compel. (ECF No. 100 at 1–2.) While the Court proceeded to
consider the merits of the Motion to Compel (see id.), Plaintiff’s failure to in good faith confer or
attempt to confer weighs against awarding sanctions. For these reasons, the Court concludes that
an award of sanctions in Plaintiff's favor would be inappropriate under these circumstances.
III.
For the foregoing reasons, Plaintiff’s Third Motion to Compel (ECF No. 96) is DENIED
WITHOUT PREJUDICE and Plaintiff’s Motion for Expenses (ECF No. 109) is DENIED.
The Court will issue a new discovery schedule by separate Order.
IT IS SO ORDERED.

Date: February 27, 2019

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