Funk v. Custer et al

Filing 93

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the 79 Joint MOTION for Protective Order is DENIED. 2)Within 30 days from this order, Dfts shall provide plaintiff w/ responses to the disc requests served on or about Nov. 18, 2011. 3)Dfts pending 80 81 MOTIONS for Summary Judgment are DENIED without prejudice to renew following the conclusion of discovery in this matter. Signed by Chief Judge Yvette Kane on June 28,2012. (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)

MEMORANDUM
In this civil rights action filed pursuant to 42 U.S.C. § 1983, Gerald Funk (“Funk”)
alleges that Defendants violated his First and Eighth Amendment rights when they subjected him
to environmental tobacco smoke and retaliated against him for filing grievances and complaining
about his exposure. The matter proceeds on an amended complaint. (Doc. No. 17.) Remaining
as Defendants in this action are David Varano, Charles Custer and John Dunn, all employees at
State Correctional Institution at Coal Township at the relevant time, and Dr. Stanish, a physician
contracted to provide medical services to SCI-Coal Township inmates. Presently pending is
Defendants’ Joint Motion for a Protective Order. (Doc. No. 79.)
I.

Background
On March 31, 2011, the Court issued an order addressing motions to dismiss filed by the

Corrections Defendants and Stanish. The Corrections Defendants’ motion was granted in that all
claims set forth against them in their official capacities for money damages were dismissed, as
well as all claims set forth against Jeffrey Beard, former Secretary of the Pennsylvania
Department of Corrections. (Doc. No. 50.) All other claims with respect to Varano, Custer and
Dunn were ordered to proceed. In addition, the motion to dismiss filed by Stanish was denied.
Following the filing of answers to the amended complaint, a scheduling order was issued on

September 12, 2011, directing that all discovery be completed within sixty (60) days and any
dispositive motions filed within thirty (30) days from the close of discovery. (Doc. No. 65.) On
October 4, 2011 and October 20, 2011, motions filed by the Corrections Defendants for
enlargements of time to respond to Plaintiff’s discovery requests were granted. (Doc. Nos. 69,
71.) Thereafter, on October 25, 2011, a motion filed by Defendants to depose Plaintiff was
granted. (Doc. No. 73.) On November 9, 2011, the Corrections Defendants moved to enlarge
the discovery and dispositve motions deadlines.1 The Court granted Defendants’ motion and
enlarged the discovery period to November 28, 2011, and the dispositive motions deadline to
December 28, 2011. (Doc. No. 78.)
On December 19, 2011, Defendants jointly filed the pending motion for a protective
order. (Doc. No. 79.) In the motion, Defendants request an order from the Court stating that
they are not required to respond to discovery requests served upon them by Funk on or about
November 18, 2011. Defendants argue that the requests are untimely in that they were served
ten (10) days prior to the expiration of the November 28, 2011 discovery deadline, thus not
accounting for the time for responding to the requests prior to the conclusion of discovery on
November 28, 2011.
II.

Discussion
Without unnecessary elaboration, the motion for protective order wil be denied for the

following reasons. Federal Rule of Civil Procedure 26(c) provides that a court may, for good

1

Defendants requested the enlargement because on November 5, 2011, Funk directed a
request slip to the Superintendent’s Assistant at SCI-Somerset, his current place of confinement,
requesting an additional opportunity to review documents that had previously been produced to
him for the purpose of preparing for his deposition. (See Doc. No. 76.)
2

cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense. Fed. R. Civ. P. 26 9(c). A party seeking a protective order under Rule
26 has the burden of establishing good cause. See also Pansy v. Borough of Stroudsburg, 23
F.3d 772, 786 (3d Cir. 1994)(“In the context of discovery, it is well-established that a party
wishing to obtain an order of protection over discovery material must demonstrate that ‘good
cause’ exists for the order of protection.”).
In the instant case, Funk is proceeding pro se. Defendants have moved for the
enlargement of the discovery period on several occasions. The latest scheduling order directed
that discovery be concluded by November 28, 2011. During the discovery period, both Funk and
Defendants have served discovery upon each other. While it is true that Funk submitted the
challenged requests ten (10) days prior to the expiration of this deadline, the requests are
extremely short. (Doc. No. 79-2 at 1-6.) In fact, he directs two (2) interrogatory questions to
Defendants Custer and Varano, three (3) interrogatory questions to Defendant Dunn, and one (1)
interrogatory question to Defendant Stanish. The questions appear to be direct and not requiring
much time by way of response. In light of this fact coupled with Funk’s pro se status and that
requiring Defendants to respond will not overly extend the duration of this case, the Court will
deny the pending motion for protective order. Defendants will be directed to provide responses
to the challenged discovery requests within thirty (30) days. The pending motions for summary
judgment filed by Defendants will be denied, without prejudice to renew, following the
conclusion of discovery in this case.2 An appropriate order follows.

2

No briefs or other supporting documents have been filed by Defendants in support of
their motions for summary judgment. Following the conclusion of discovery in this case, the
parties may renew their pending motions for summary judgment or file new dispositive motions
3

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
AND NOW, this 28th day of June, 2012, upon consideration of Defendants’ Joint
Motion for a Protective Order (Doc. No. 79), IT IS HEREBY ORDERED AS FOLLOWS:
1.

The motion for protective order (Doc. No. 79) is denied.

2.

Within thirty (30) days from the date of this order, Defendants shall
provide Plaintiff with responses to the discovery requests served on or
about November 18, 2011.

3.

Defendants’ pending motions for summary judgment (Doc.
Nos. 80, 81) are denied without prejudice to renew
following the conclusion of discovery in this matter.

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

and a briefing schedule will be imposed.