BALLARD v. WILLIAMS et al
Filing
149
MEMORANDUM OPINION AND ORDER - For the foregoing reasons, the plaintiffs motions to compel (Docs. 138 , 140 ), and for appointment of counsel, (Doc. 147 ), are DENIED. Signed by Magistrate Judge Martin C. Carlson on September 18, 2013. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TODD DARRELL BALLARD,
Plaintiff
v.
CO 1 WILLIAMS, et al.,
Defendants
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Civil No. 3:10-CV-1456
(Judge Brann)
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
I.
Statement of Facts and of the Case
1.
Statement of Facts and of the Case
Todd Darrell Ballard, an inmate formerly incarcerated at the State Correctional
Institution at Camp Hill who is proceeding pro se, commenced the above-captioned
action in the United States District Court for the Western District of Pennsylvania on
June 28, 2010, asserting that prison staff and officials violated his constitutional
rights following an altercation between Ballard and his cellmate on March 30, 2008.
(Doc. 1.) Ballard claims that corrections officers at SCI-Camp Hill entered his cell
following the altercation, and that the officers assaulted him and burned him on a
radiator during this process. (Doc. 68, Am. Compl.)
Following the filing of this complaint, the parties have engaged in protracted,
and occasionally contentious discovery proceedings. This discovery has been subject
to limitations set by this Court in July of 2012, limitations which provided in part that
“In the absence of mutual consent to exceed these limits or a court order, the
maximum number of interrogatories per side shall be twenty five (25); the maximum
number of document production requests per side shall be twenty five (25); and the
maximum number of requests for admissions per side shall be twenty-five (25).”
(Doc. 102, ¶4.) These discovery limitations, in turn, parallel the limitations set by the
Federal Rules of Civil Procedure. F.R. Civ. P., Rule 33(a)(1).
This case now comes before the Court for resolution of three motions: two
motions to compel, filed by Ballard, (Docs. 138 and 140), and a motion to appoint
counsel, (Doc.147), also filed by Ballard, which appears to seek appointment of
counsel for the purpose of conducting discovery for Ballard without cost to the
plaintiff. In his motions to compel, Ballard seeks to compel answers to discovery
requests which he has propounded, requests which far exceeded the limitations set
both by the Federal Rules of Civil Procedure and our prior orders. Moreover, a
number of these discovery demands sought personnel information relating to
individual defendants, information of a type that is frequently cloaked in privilege.
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The motions to compel have been fully briefed by the parties and are now ripe for
resolution. For the reasons set forth below, the motions will be denied.
II.
Discussion
Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. . . .
Fed. R. Civ. P. 37(a).
The scope of what type of discovery may be compelled under Rule 37 is
defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which
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 –
including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)( C ).
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Fed. R. Civ. P. 26(b)(1)
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding Rule 37 motions are
“committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus,
a court’s decisions regarding the conduct of discovery, and whether to compel
disclosure of certain information, will be disturbed only upon a showing of an abuse
of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).
This far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
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only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and
Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, a party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth., 203
F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting
the discovery has the burden to establish the lack of relevance by demonstrating that
the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the
potential harm occasioned by discovery would outweigh the ordinary presumption in
favor of broad disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573
(D.Kan. 2009).
Furthermore, in a prison setting, inmate discovery requests can raise security
concerns, and implicate a legitimate governmental privilege, a governmental privilege
which acknowledges a governmental needs to confidentiality of certain data but
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recognizes that courts must balance the confidentiality of governmental files against
the rights of a civil rights litigant by considering:
(1) the extent to which disclosure will thwart governmental processes by
discouraging citizens from giving the government information; (2) the
impact upon persons who have given information of having their
identities disclosed; (3) the degree to which governmental selfevaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or
evaluative summary; (5) whether the party seeking the discovery is an
actual or potential defendant in any criminal proceeding either pending
or reasonably likely to follow from the incident in question; (6) whether
the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the
investigation; (8) whether the plaintiff’s suit is non-frivolous and
brought in good faith; (9) whether the information sought is available
through other discovery or from other sources; and (10) the importance
of the information sought to the plaintiffs case.
Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973).
One other principle defines the court’s discretion when ruling on a pro se
litigant’s motions to compel discovery. “[A]s a pro se litigant, plaintiff is solely
responsible for failure to adhere to the Federal Rules of Civil Procedure. Huertas v.
Philadelphia, 139 Fed.Appx. 444, 445 (3d Cir.2005).” Thorpe v. Wilmington Hous.
Auth., 262 F.R.D. 421, 423 (D. Del. 2009). Therefore, when a pro se party fails to
abide by limitations on discovery set by the court, by either submitting delinquent or
excessive discovery requests, “the court can, and in the exercise of its discretion often
should, refuse to compel compliance with that request. See, e.g., Maslanka v.
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Johnson & Johnson, 305 F.App'x 848 (3d Cir.2008) (affirming denial of pro se
litigant motion to compel where discovery demands were untimely); Oriakhi v.
United States, 165 F.App'x 991 (3d Cir.2006) (same); Bull v. United States, 143
F.App'x 468 (3d Cir.2005) (same).” Muniz v. Price, 3:10-CV-345, 2010 WL
4537037 (M.D. Pa. Nov. 3, 2010)(denying delinquent discovery request).
With these legal guideposts in mind, we turn to consideration of Ballard’s
various discovery requests.
At the outset, we agree that the defendants are justified in refusing to answer
excessive discovery demands beyond those authorized by the Court in its July 2012
pre-trial discovery order, and permitted under the Federal Rules of Civil Procedure.
Ballard has known for the past year of the discovery limitations imposed by our July
2012 order. He has not chosen to seek leave of court to propound additional
discovery requests, even after being informed months ago that the defendants
regarded these requests as excessive. Therefore, Ballard cannot now be heard to
complain that the defendants seeks to hold him to the limits set by the court, limits
that he never timely challenged or sought to amend.
Further, to the extent that Ballard seeks access to personnel files of prison staff,
courts have long recognized that:
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Although personnel files are discoverable, they contain confidential
information and discovery of them should be limited. See, e.g.,
Reagan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.2008)
(“Personnel files often contain sensitive personal information ... and it
is not unreasonable to be cautious about ordering their entire contents
disclosed willy-nilly.... This is not to say personnel files are
categorically out-of-bounds.”); Miles v. Boeing Co., 154 F.R.D. 112,
115 (E.D.Pa.1994) (“[P]ersonnel files are confidential and discovery
should be limited.”). The Court must weigh the right to relevant
discovery against the privacy interest of non-parties. Th[us a] Court
[may] find[] that Plaintiff is not entitled to the entire personnel records
of all the individuals without a more particularized showing of relevance.
Harris v. Harley-Davidson Motor Co. Operations, Inc, No. 09-1449, 2010 WL
4683776, *5 (M.D.Pa Nov. 10, 2010). Miles v. Boeing Co., 154 F.R.D. 112, 115
(E.D. Pa. 1994)(“personnel files are confidential and discovery should be limited.”).
Therefore, without a specific and particularized showing of relevance these requests
would fail on their merits.
Having found that Ballard’s motions to compel, which seek responses to
discovery beyond those previously authorized by the court, should be denied, we turn
briefly to Ballard’s motion for appointment of counsel. (Doc. 147.) This motion
seeks appointment of counsel for the purpose of conducting discovery, but is
apparently premised on the notion that court-appointed counsel will then be
responsible for the expense of depositions which the plaintiff wishes to take. (Doc.
147, ¶3.)
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This motion fails for several reasons. First, this request seems misplaced since
in our view the discovery deadlines in this case have now passed. Therefore, in the
absence of a well-founded motion to re-open discovery, we would not anticipate
additional discovery taking place in this case. In addition, to the extent that Ballard
seeks to have counsel appointed in order to shift the costs of discovery to counsel or
some other party, the request fails since nothing in 28 U.S.C. § 1915 authorizes
federal courts to finance or pay for a party’s discovery expenses incurred while
prosecuting a lawsuit, even if that party has been granted leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a). Review of the case law reveals that numerous
courts have recognized the limitations of federal courts to relieve indigent litigants
from the costs of pre-trial discovery. See, e.g., Brooks v. Quinn, 257 F.R.D. 515, 417
(D. Del. 2009) (“Although plaintiff is proceeding in forma pauperis, the court has no
authority to finance or pay for a party’s discovery expenses. . . . It is plaintiff’s
responsibility to pay for the costs associated with the taking of a deposition.”);
Augustin v. New Century TRS Holding, Inc., No. 08-326, 2008 U.S. Dist. LEXIS
96236, at *7-9 (W.D. Pa. Nov. 25, 2008) (denying plaintiff’s IFP application to cover
costs for discovery requests); Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991)
(28 U.S.C. § 1915 does not require the government to advance funds for deposition
expenses); Toliver v. Community Action Comm’n to Help the Econ., 613 F. Supp.
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1070, 1072 (S.D.N.Y. 1985) (no clear statutory authority for the repayment of
discovery costs for IFP plaintiff); Sturdevant v. Deer, 69 F.R.D. 17, 19 (E.D. Wis.
1975) (concluding that 28 U.S.C. § 1915 “does not extend to the cost of taking and
transcribing a deposition.”); Ebenhart v. Power, 309 F. Supp. 660, 661 (S.D.N.Y.
1969) (“Grave doubts exist as to whether [28 U.S.C. § 1915] authorizes this court to
order the appropriation of Government funds in civil suits to aid private litigants in
conducting pre-trial discovery.”); see also Tabron v. Grace, 6 F.3d 147, 159 (3d Cir.
1993) (“There is no provision in [28 U.S.C. § 1915] for the payment by the
government of the costs of deposition transcripts, or any other litigation expenses,
and no other statute authorizes courts to commit federal monies for payment of the
necessary expenses in a civil suit brought by an indigent litigant.”). Thus, as a
general rule, the Court lacks the lawful authority to help finance, or relieve plaintiff
from, the costs associated with taking pre-trial discovery, and we cannot appoint
counsel simply for the purpose of shifting these discovery costs.
Further, the plaintiff has asked the Court to appoint counsel after three years
of successfully litigating his claims, pro se. We appreciate the plaintiff’s interest in
securing court-appointed counsel, but also recognize that there is neither a
constitutional nor a statutory right to counsel for civil litigants. Parham v. Johnson,
126 F.3d 454, 456-57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.
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1993). Instead, 28 U.S.C. § 1915(e)(1) simply provides that “[t]he court may request
an attorney to represent any person unable to employ counsel.” Under §1915(e)(1),
a district court’s appointment of counsel is discretionary and must be made on a caseby-case basis. Tabron, 6 F.3d at 157-58. In Parham, the United States Court of
Appeals outlined the standards to be considered by courts when reviewing an
application to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). In passing on such
requests we must first:
“[D]etermine[] that the plaintiff's claim has some merit, then [we] should
consider the following factors: (1) the plaintiff's ability to present his or
her own case; (2) the complexity of the legal issues; (3) the degree to
which factual investigation will be necessary and the ability of the
plaintiff to pursue such investigation; (4) the amount a case is likely to
turn on credibility determinations; (5) whether the case will require the
testimony of expert witnesses; [and] (6) whether the plaintiff can attain
and afford counsel on his own behalf.”
Parham v. Johnson, 126 F.3d at 457.
There is yet another practical consideration which must be taken into account
when considering motions for appointment of counsel. As the United States Court
of Appeals for the Third Circuit has aptly observed:
Finally, in addressing this issue, we must take note of the significant
practical restraints on the district courts' ability to appoint counsel: the
ever-growing number of prisoner civil rights actions filed each year in
the federal courts; the lack of funding to pay appointed counsel; and the
limited supply of competent lawyers who are willing to undertake such
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representation without compensation. We have no doubt that there are
many cases in which district courts seek to appoint counsel but there is
simply none willing to accept appointment. It is difficult to fault a
district court that denies a request for appointment under such
circumstances.
Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993). Mindful of this consideration it has
been “emphasize[d] that volunteer lawyer time is extremely valuable. Hence, district
courts should not request counsel under § 1915(d) indiscriminately. As the Court of
Appeals for the Second Circuit has warned: ‘Volunteer lawyer time is a precious
commodity.... Because this resource is available in only limited quantity, every
assignment of a volunteer lawyer to an undeserving client deprives society of a
volunteer lawyer available for a deserving cause. We cannot afford that waste.’
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989).” Tabron v. Grace, 6
F.3d 147, 157 (3d Cir. 1993).
In this case our analysis of these factors leads us to conclude that counsel
should not be appointed in this case at the present time. While we believe that
Ballard has met the threshold requirement for appointment of counsel in that his claim
have sufficient merit to warrant a trial, we find that the claims are not factually or
legally complex. Moreover, Ballard has shown a complete facility in guiding this
litigation. Thus, in this case we are presented with a request for counsel from an
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experienced pro se litigant who has evinced a complete familiarity with the legal
system, and an ability to present his case in an articulate fashion. Furthermore, the
case is not legally or factually complex, and the limited role for counsel envisioned
by Ballard would not achieve the result he seeks, which is to shift discovery costs
onto some third party. Taking all of these factors into account in the exercise of our
discretion we DENY this request to appoint counsel. (Doc.147.) See Gordon v.
Gonzalez, 232 F. App'x 153, 157 (3d Cir. 2007).
III.
Conclusion
For the foregoing reasons, the plaintiff’s motions to compel (Docs. 138, 140),
and for appointment of counsel, (Doc. 147), are DENIED.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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