Funk v. Custer et al

Filing 65

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that 1)Pltfs 43 Motion for Declaratory Judgment is DENIED. 2)Pltf's 48 Motion to Compel is GRANTED to the extent Corrections Dfts are directed to respond to all outstanding discovery requests w/i 20 days from the date of this order. 3)All disc shall be completed w/e 60 days from the date of this order. Signed by Chief Judge Yvette Kane on Sept. 12, 2011. SEE ORDER. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GERALD FUNK,
Plaintiff,
v.
CHARLES CUSTER, et al.,
Defendants

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CIVIL NO. 1:CV-10-0915
(Chief Judge Kane)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Gerald Funk, an inmate confined at the State Correctional Institution at Somerset,
Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter proceeds on
an amended complaint wherein he sets forth allegations against Jeffery Beard, former Secretary
of the Pennsylvania Department of Corrections, and several employees at SCI-Coal Township,
Pennsylvania, his former place of confinement. He alleges that Defendants violated his First and
Eighth Amendment rights when they subjected him to environmental tobacco smoke in violation
of a medical order and retaliated against him for filing grievances and complaints with respect to
the exposure. On March 31, 2011, the Court issued a Memorandum and Order granting a partial
motion to dismiss the amended complaint filed on behalf of Corrections Defendants Beard,
Custer, Varano and Dunn. (Doc. No. 50.) Specifically, all claims set forth against these
Defendants in their official capacities for monetary damages were dismissed as were all claims
set forth against Beard in this action. In addition, the Court denied a motion to dismiss the
amended complaint filed on behalf of Defendant Dr. Stanish. Since the issuance of the March
31, 2011 opinion, Defendants Custer, Varano, Dunn and Stanish have filed answers to the
amended complaint. (Doc. Nos. 52, 57.) Presently pending on the docket are Plaintiff’s motion

for declaratory judgment (Doc. No. 43) and motion to compel responses to outstanding discovery
requests (Doc. No. 48).
Without unnecessary elaboration, Plaintiff’s motion for declaratory judgment will be
denied. In the motion he requests the Court to make certain declarations including findings that
Defendants have violated his statutory and Eighth Amendment rights by failing to provide him
with a smoke free environment, despite medical orders not to expose him to cigarette smoke.
This the Court will not do. Any such motion is procedurally improper. Plaintiff attempts to
circumvent the adjudication on the merits of the claims in this action through the proper channels
of discovery, pre-trial motions and/or trial. The Court has ruled upon Defendants’ motions to
dismiss in this case, and the claims are proceeding with respect to all Defendants except Beard.
The parties are currently engaging in discovery at this time. The procedural posture of this case
is that evidence is being gathered and developed by the parties, and any request at this stage to
bypass the litigation process is improper. Following the close of discovery, the parties will be
afforded the opportunity to file any appropriate dispositive motions along with supporting
evidentiary materials. For these reasons, Plaintiff’s motion will be denied.1
Plaintiff has also filed a motion to compel discovery in this action. (Doc. No. 48.) The
motion appears to be directed at the Corrections Defendants and not at Defendant Stanish. In the
motion, Plaintiff maintains that Corrections Defendants have failed to respond in any fashion to
outstanding requests for admissions and the production of documents, and have yet to provide

1

The Court also notes that there is no sense of urgency in resolving Plaintiff’s claims in
that he is no longer confined at SCI-Coal Township where the alleged exposure to tobacco
smoke took place.
2

responses to interrogatories.2 He sets forth a list of all outstanding discovery requests in his
supporting brief. (Doc. No. 49 at 3.) Defendants have failed to oppose the motion to compel.
As such, the motion will be granted to the extent that Defendants will be directed to provide
Plaintiff with responses to all outstanding discovery requests. The only exception is with respect
to any requests served upon Defendant Beard since he has been dismissed from this action.3
Defendants are to provide Plaintiff with their responses within twenty (20) days.
AND NOW, THIS 12th DAY OF SEPTEMBER, 2011, IT IS HEREBY ORDERED
AS FOLLOWS:
1.

Plaintiff’s motion for declaratory judgment (Doc. No. 43) is denied.

2.

Plaintiff’s motion to compel (Doc. No. 48) is granted to the extent that the
Corrections Defendants are directed to respond to all outstanding discovery
requests within twenty (20) days from the date of this order.

3.

All discovery in this case shall be completed within sixty (60) days from the date
of this order. Any dispositive motions shall be filed within thirty (30) days from
the close of discovery.

S/ Yvette Kane
YVETTE KANE, Chief Judge
Middle District of Pennsylvania

2

Plaintiff also complains that Defendants have failed to oppose his motion for temporary
restraining order. The Court need not address this point in that subsequent to the filing of the
instant motion Plaintiff withdrew his motion for temporary restraining order. (Doc. No. 60.)
3

Since Plaintiff filed his motion to compel some time ago, it is possible that Defendants
have, in fact, provided Plaintiff with the outstanding discovery responses. If this is the case,
Defendants shall so advise the Court.
3