Moore v. Pantoja et al

Filing 62

ORDER granting in part and denying in part 52 Motion to Compel; denying as moot 59 Second Motion for Extension of Time to File and lifting the limited stay entered on March 10, 2017. Signed by Magistrate Judge Charles B Goodwin on 04/06/2017. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHARLES L. MOORE III,
Plaintiff,
v.
LT. PANTOJA et al.,
Defendants.

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Case No. CIV-15-688-HE

ORDER
This matter is before the Court on the pro se Plaintiff’s amended motion to compel
discovery responses and his second motion for an extension of time to respond to
Defendant Pantoja’s amended motion for summary judgment. Pl.’s Am. Mot. to Compel
(Doc. No. 52); Pl.’s Second Mot. for Extension of Time (Doc. No. 59).
Motion to Compel
In his motion to compel, Plaintiff asserts that Defendant Pantoja, who is the sole
remaining defendant in this case, has failed to “directly and fully” answer ten of the
fourteen interrogatories that Plaintiff attached to his motion. Pl.’s Am. Mot. to Compel at
1-2 (citing Interrogatories 1-6 and 8-11). On March 10, 2017, the Court ordered Defendant
Pantoja to respond to Plaintiff’s discovery motion within ten days, and stayed Plaintiff’s
impending deadline to respond to Defendant Pantoja’s dispositive motion. Order of Mar.
10, 2017 (Doc. No. 57) at 1. Defendant Pantoja timely filed a response in which he objects
that Plaintiff’s motion seeks “discovery on information that has . . . already been provided
via the Special Report”; “is not relevant to the [action’s] subject matter”; or “will not aid”

Plaintiff in responding to Defendant’s motion for summary judgment, which includes
Defendant’s assertion that he is entitled to qualified immunity on Plaintiff’s Eighth
Amendment excessive-force claim. Def.’s Resp. (Doc. No. 58) at 2-3; see also id. at 2
(Defendant Pantoja noting that the parties were supposed to complete discovery by
December 8, 2016, and that he “sent responses to Plaintiff’s discovery requests, including
proper responses and objections,” within 30 days after Plaintiff mailed those requests on
December 5, 2016).
Plaintiff has submitted copies of the Interrogatories that he asserts Defendant failed
to properly answer, see Pl.’s Am. Mot. to Compel Ex. 1 (Doc. No. 56-1) at 1-3, but neither
Plaintiff nor Defendant has submitted a copy of Defendant’s actual responses. The Court
therefore reviews the Motion based on the summaries of Defendant’s answers and
objections as provided by the parties. The Court finds that none of the information sought
in Interrogatories Nos. 1, 2, 3, 4, 5, 9, and 11 is relevant to Plaintiff’s sole remaining claim,
which is based on alleged excessive force by Defendant. In Interrogatory No. 6, Plaintiff
requests the names of “staff [who] were present in the A3 pod” during the cell search that
preceded the alleged use of excessive force. Id. at 1. In Interrogatory No. 8, Plaintiff
requests the names of inmates and staff who were interviewed regarding the events at issue
in the course of ODOC’s preparation of the Special Report. Id. at 2. Both of these
interrogatories seek identification of persons who reasonably may have witnessed acts or
circumstances relevant to Plaintiff’s remaining claim, which is discoverable information.
And while the Special Report identifies some of these persons, it is not apparent that all
such persons have been named. In Interrogatory No. 10, Plaintiff asks whether Defendant
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during the cell search “touch[ed] Plaintiff’s naked right buttock with boxers.” Id. Such
information is arguably relevant to the alleged excessive force incident following the cell
search. Moreover, although Defendant has now asserted qualified immunity, allowing
“limited discovery” is appropriate because Defendant’s “characterization of his actions
differ from the [P]laintiff’s characterization of those actions.” Rome v. Romero, 225 F.R.D.
640, 643-44 (D. Colo. 2004) (citing Crawford-El v. Britton, 523 U.S. 574, 593 n.14
(1998)).
Therefore, Plaintiff’s Motion to Compel is GRANTED in part and DENIED in part.
Defendant shall respond to Interrogatories Nos. 6, 8, and 10 consistent with the discussion
above within ten days of the date of this Order. No further action is required of Defendant
as to Interrogatories Nos. 1, 2, 3, 4, 5, 9, and 11.
Motion for Extension of Time
Although Plaintiff broadly alleges that “all of the discovery is germane to the instant
action,” Plaintiff does not assert that he needs Defendant Pantoja’s sworn answer to any
specific interrogatory in order to meaningfully respond to Defendant’s motion for summary
judgment. Pl.’s Am. Mot. to Compel at 2; see Fed. R. Civ. P. 33(b), 56(c)-(e). Moreover,
despite the stay, Plaintiff has now responded on the merits to Defendant Pantoja’s motion
for summary judgment. Pl.’s Resp. to Def.’s Am. Mot. for Summ. J. (Doc. No. 60) at 1-3;
see Def.’s Reply (Doc. No. 61) at 1-4. Plaintiff’s “response brief [does] not allude to the
motion to compel” or otherwise explain his “purported need for the evidence [he] sought
to compel.” Naifeh v. Ideal Homes of Norman, L.P., 260 F. App’x 122, 124 (10th Cir.
2008); see Pl.’s Resp. to Def.’s Am. Mot. for Summ. J. at 1-3; see also Pl.’s Second Mot.
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for Extension of Time at 1 (Plaintiff stating that he needs one additional week to respond
to Defendant Pantoja’s motion for summary judgment because the law library was closed
for ten days). Plaintiff also has not attempted to “show[] by affidavit or declaration, that
for specified reasons, [he] cannot present facts essential to justify [his] opposition” to
Defendant Pantoja’s motion for summary judgment without the requested discovery. Fed.
R. Civ. P. 56(d); cf. Douglass v. United Auto Workers Local Union 31, 188 F. App’x 656,
659 (10th Cir. 2006) (finding no error where district court granted summary judgment in
defendants’ favor without resolving the pro se plaintiff’s non-specific discovery motion).
The one asserted fact that Plaintiff says he “does not have sufficient information” to
respond to concerns the amount of pepper spray that Defendant Pantoja allegedly used
against Plaintiff on November 24, 2014. See Pl.’s Resp. to Def.’s Am. Mot. for Summ. J.
at 1 ¶ 2; Def.’s Am. Mot. for Summ. J. (Doc. No. 49) at 9 ¶ 5 (“[T]he amount of pepper
spray used on Plaintiff was determined to be ten (10) grams from one (1) 122-gram can.”).
But Plaintiff did not submit any interrogatories asking about pepper spray. See Pl.’s Am.
Mot. to Compel at 1-2; Pl.’s Am. Mot. to Compel Ex. 1, at 1-3.
Accordingly, Plaintiff’s second motion for an extension of time (Doc. No. 59) is
DENIED as moot and the limited stay entered on March 10, 2017, is hereby LIFTED.
IT IS SO ORDERED this 6th day of April, 2017.

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