Harris v. Pennsylvania Board of Probation & Parole et al

Filing 77

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 10/8/13. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD M HARRIS,
Plaintiff
v.
PENNSYLVANIA BOARD of
PROBATION & PAROLE, et al.,
Defendants

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CIVIL NO. 3:CV-12-0674
(Judge Caputo)

MEMORANDUM
I.

Introduction
This is an action brought by a pro se prisoner pursuant to 42 U.S.C. § 1983 in

which he challenges his sentence calculation by the Pennsylvania Department of
Corrections (DOC) and his receipt of a retaliatory misconduct. (Doc. 43, Second
Am. Compl.) Specifically, Mr. Harris asserts that several of his Pennsylvania
sentences should have been calculated by the DOC as running concurrent with,
rather than consecutive to, the sentence he was serving in Virginia.
Presently before the court are three discovery related motions. The first two
motions, filed by Mr. Harris, are motions to compel discovery. (Docs. 40 and 44.)
The third motion, filed by defendants, is a motion for sanctions for costs related to a
properly noticed deposition in which Mr. Harris refused to participate. (Doc. 56.)
For the reasons set forth below, all three motions will be denied.

II.

Standard of Review
The Federal Rules of Civil Procedure enable parties to obtain information by

serving request for discovery upon each other, including interrogatories and
requests for production of documents. See generally Fed. R. Civ. P. 26-37. Fed. R.
Civ. P. 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense ...
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.
Fed. R. Civ. P. 26(b)(1). “[T]herefore, all relevant material is discoverable unless an
applicable evidentiary privilege is asserted. The presumption that such matter is
discoverable, however, is defeasible. Rule 26(c) grants federal judges the discretion
to issue protective orders that impose restrictions on the extent and manner of
discovery where necessary ‘to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.’ Fed. R. Civ. P. 26(c).”
Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000). Matters relating to discovery are
generally left to the discretion of the trial court. See Wisniewski v. Johns–Manville
Corp., 812 F.2d 81, 90 (3d Cir. 1987).
Fed. R. Civ. P. 34 requires that a party served with a document request either
produce the requested documents or state a specific objection for each item or
category objected to. See Fed.R.Civ.P. 33(b)(4); Momah v. Albert Einstein Medical
Center, 164 F.R.D. 412, 417 (E.D.Pa. 1996). “Mere recitation of the familiar litany

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that an interrogatory or a document production request is ‘overly broad,
burdensome, oppressive and irrelevant’ will not suffice.” Id. (quoting Josephs v.
Harris Corp., 677 F.2d 985, 992 (3d Cir.1982)). The objecting party must
demonstrate in specific terms why a particular discovery request does not fall within
the broad scope of discovery or is otherwise privileged or improper. Goodman v.
Wagner, 553 F.Supp. 255, 258 (E.D. Pa. 1982). Parties “seeking the protection of
sensitive-but relevant-information” may argue the information sought is protected by
an evidentiary privilege pursuant to Fed. R. Civ. P. 26(b)(1), or petition the court for
a protective order pursuant to Fed. R. Civ. P. 26(c) to protect its disclosure.
Pearson, 211 F.3d at 65.
To support a claim of privilege, the government must fulfill three
requirements: (1) the head of the agency must personally review the material; (2)
there must be a specific designation and description of the documents claimed to be
privileged; and (3) there must be precise reasons for preserving the confidentiality of
the documents. See Fed. R. Civ. P. 26(b)(5)(A)(ii); United States v. O’Neill, 619
F.2d 222, 225-226 (3d Cir. 1980). A party seeking to obtain a protective order must
demonstrate “good cause” for the order of protections. See Smith v. Bic Corp., 869
F.2d 194, 199 (3d Cir. 1989); see also Fed. R. Civ. P. 26(c). Again, “[b]road
allegations of harm, unsubstantiated by specific examples or articulated reasoning,”
do not support a showing of “good cause.” Cipollone v. Liggett Group, Inc., 785
F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.
Ed.2d 485 (1987). In determining whether the moving party has established “good

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cause” for the issuance of a protective order, federal courts have generally adopted
a balancing process whereby “the requesting party's need for information [is
balanced] against the injury that might result if uncontrolled disclosure is compelled.”
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (1994).
If the party served fails to respond adequately to a document request, the
serving party may file a motion to compel under Rule 37(a). See Fed. R. Civ. P.
37(a)(3)(A). Fed. R. Civ. P. 37 also authorizes a district court to sanction a party for
failure to obey an order compelling disclosure, and failing to appear for his own
deposition, serve answers or objections to interrogatories, or respond to a request
for inspection of documents. See Fed. R. Civ. P. 37(b)(2), (c) and (d). Among the
available sanctions is dismissal of the action against the disobedient party, see Fed.
R. Civ. P. 37(b)(2)(v).
Issues relating to the scope of discovery permitted under the Rules rest in the
sound discretion of the Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90
(3d Cir. 1987). A court's decisions regarding the conduct of discovery 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).

III.

Discussion
A.

Mr. Harris’ Motion to Compel (Doc. 40).

Mr. Harris’ seeks a court order to compel Defendant Lisa Moffa to
supplement her response to his request for production of documents by providing

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him with an unredacted copy of DOC Pub. 11.05.01, entitled “Records Office
Operations.” Mr. Harris avers that this document is not protected by privilege and
that defendants’ vague assertion of confidentiality and security concerns as the
rationale for redacting the document produced is unsupported. (Doc. 41, Br. Supp.
Mot. to Compel.) He asserts the document is highly relevant as to the DOC’s
method of calculating his parole eligibility date as this procedures manual guides
DOC employees in sentencing and parole review calculations. (Id.) In opposing the
motion to compel, defense counsel argues the document is protected by privilege
and that the information he seeks is irrelevant to his claim.1 Given the limited nature
of the issue in this matter, defendants have also produced to Mr. Harris a copy of his
sentencing hearing transcript which defines, at great length, the sentencing court’s
intention with respect to the commencement of his Pennsylvania sentences with
respect to each other, as well as, his pre-existing Virginia sentence. See Doc. 59-2,
Transcript of Proceedings Guilty Plea & Sentencing. The following excerpt from Mr.
Harris’ sentencing transcript summarizes the sentencing court’s intent as to the
commencement of his Pennsylvania sentences.
Mr. NARVOL: Mr. Harris, you have just been sentenced
to what I interpret as a sentence of 20 to 40 years in the
state correctional institution in Pennsylvania, to begin
and be computed from your return from Virginia once you
are paroled in Virginia. Whenever Virginia paroles you,
you come back to Pennsylvania.

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Defense counsel concedes that she “misunderstood the nature of the Department
of Corrections’ objections to producing this document to include a security concern. It does
not implicate any security issues, but rather is based solely on confidentiality and privilege
issues.” (Doc. 58, ECF p. 3, n. 1.)

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The day you come back from Virginia, your 20 to 40
years begin to run.
Do you understand that?
THE DEFENDANT: Yes, sir.
Doc. 59-2, ECF p. 30 (emphasis added). Given the availability of Mr. Harris’
sentencing transcript, as well as the detailed recitation of the sentencing judge’s
intent as to his service of those sentences, the court agrees that the production of
the more generalized sentencing computation manual is irrelevant. Accordingly, the
court will deny Mr. Harris’ motion to compel the defendants to produce an
unredacted copy of the DOC’s Sentence Computation Procedures Manual in this
matter.

B.

Mr. Harris’ Motion to Compel (Doc. 44).

Mr. Harris’ next motion seeks to compel the defendants to respond to
October 2012 and November 2012 discovery requests properly served upon
defense counsel. See Doc. 44. Prior to seeking the court’s intervention in this
matter, Mr. Harris attempted to resolve this matter by contacting defense counsel by
letter. See Doc. 45, ECF p. 9. Defendants, sought and were granted, an
enlargement of time to respond to Mr. Harris’ discovery. See Docs. 28 and 29.
Defendants were to have served Mr. Harris with responses to his discovery on or
before December 21, 2012. See Doc. 29. In their opposition to this motion to
compel, defendants argue that the motion is now moot as Mr. Harris received
responses to his discovery requests on March 13, 2013. Doc. 55, Defs.’ Br. in
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Opp’n Pl.’s Mot. to Compel. Defendants submit a copy of their Certificate of Service
of their responses to Mr. Harris’ discovery as evidence of their fulfillment of their
outstanding discovery obligation. See Doc. 55-1. No explanation is offered by
defense counsel for the untimely submission of the discovery responses.
Nonetheless, Mr. Harris has not supplemented his motion to suggest he has not
received responses to all properly posed discovery. Thus, the court will dismiss the
motion as moot.

C.

Defendants’ Motion for Sanctions (Doc. 56).

The final discovery motion, filed by Defendants, seeks the court to impose
monetary sanctions against Mr. Harris, for the sum of $182. 73, due to his failure to
participate in his court sanctioned, and properly noticed, deposition. (Doc. 56.) Mr.
Harris does not contest that he refused to allow defense counsel to depose him
when she appeared in February 2013 for his deposition. (Doc. 67.) Rather, he
suggests he was not aware that defense counsel had obtained leave of court to
depose him. (Id.) It is not disputed that defense counsel incurred various fees
associated with the deposition, including but not limited to mileage and court
reporter fees. (Doc. 61.) Given the tortured history of discovery in this case, which
has included Mr. Harris filing multiple motions to compel to obtain responses to his
properly served discovery on defendants, and defendants’ filing multiple
enlargements of time to respond to Mr. Harris’ discovery which defense counsel
then inexplicably failed to comply with, the court will not impose monetary sanctions
against Mr. Harris. However, the court advises Mr. Harris that on August 13, 2012,
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defense counsel was granted leave to depose him. See Doc. 17. At this point,
when defense counsel reschedules and properly serves him notice of his deposition,
if Mr. Harris refuses to be deposed, the defendants would be within their rights to
seek dismissal of this action as a sanction.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: October 8

, 2013

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