Legrand et al v. Fenstermaker et al

Filing 212

MEMORANDUM AND ORDER: Dft's MOTION to Compel Discovery 209 is Granted. Pltf's mtn for exttm to answer 211 is denied. Instead, pltf is ORDERED toprovide the dft with answers to the First Set of Interrogatories on or before8/17/15. If t he pltf is unable to furnish complete responses to any question, he shall provide the dft with some explanation regarding the reason for the incomplete response, in accordance with the instructions set forth inthe interrogatories. IT IS FURTHER ORDERED that the Clerk of Court shall send the pltf a copy of the dfts first set of interrogatories (Doc. 209-2.) with this Order. Signed by Magistrate Judge Martin C. Carlson on 07/31/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN LEGRAND,

:
:
Plaintiff
:
:
v.
:
:
ERIKA FENSTERMAKER, et al., :
:
Defendants
:

Civil No. 3:12-CV-743
(Judge Kosik)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
I.

INTRODUCTION
This is a case brought by John Legrand, an inmate in the custody of the Federal

Bureau of Prisons, against the United States of America.1 Legrand alleges that the
United States is liable pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2401
and 2675 et seq., for serving Legrand chicken that was tainted with salmonella,
causing Legrand to suffer from food poisoning in June 2011. The United States
served Legrand with a first set of interrogatories on September 1, 2014. Legrand has

As originally filed, Legrand attempted to bring FTCA and Bivens claims
against a number of individual employees of the Bureau of Prisons. The court
previously granted the defendants’ motion for summary judgment with respect to
Legrand’s Bivens claims, and dismissed all individual defendants. (Doc. 198.)
The only remaining claim is the plaintiff’s FTCA claim against the United States.
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never answered the interrogatories, and discovery was subsequently continued and
stayed while the court endeavored to find counsel willing to represent him. That
effort proved unavailing, and on April 10, 2015, the court vacated its order
conditionally appointing counsel, and established new case management deadlines.
(Doc. 207.) In that order, Legrand was advised that he would be required to litigate
his claims pro se because there was no counsel willing to accept his case. (Id.) This
order also directed the parties to complete discovery by August 10, 2015, and to file
discovery-related motions by July 13, 2015. (Id.)
On July 13, 2015, the United States filed a motion to compel Legrand to
respond to the first set of interrogatories that had been propounded on September 1,
2014. (Doc. 209.) The United States filed a brief in support of its motion on the
same day. (Doc. 210.) Legrand has responded by filing a motion to stay his response
deadline until some unspecified date while he seeks to recover certain personal
property, including legal documents, that was damaged or lost during Legrand’s
recent transfer from USP-Coleman to USP-Gilmer. (Doc. 211.)
Upon consideration of the pending motions, although the court recognizes that
Legrand faces challenges as a pro se inmate attempting to litigate this case during the
course of prison transfers, and in light of his missing legal papers, we nonetheless
find it necessary to require him to answer the interrogatories that have gone
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unanswered for 11 months, since these interrogatories seek factual information that
Legrand should be able to provide regardless of his circumstances. Moreover, to the
extent Legrand is challenged to provide complete answers to all questions, the
interrogatories themselves allow for him give some explanation for his inability to
provide answers.
II.

DISCUSSION
A party upon whom the interrogatories are served is required to answer them

unless he properly serves objections. Conrad v. Northumberland Cnty., No. 4:09-CV01326, 2010 WL 4854074, at *2 (M.D. Pa. Nov. 23, 2010); see also Fed. R. Civ. P.
33. Failure to file objections will result in their waiver. Scaturro v. Warren & Sweat
Mfg. Co., 160 F.R.D. 44, 46 (M.D. Pa. 1995). If a party answers the interrogatories
but the answers are evasive or incomplete, the party propounding the interrogatories
may move the Court for an order compelling answers pursuant to Fed. R. Civ. P.
37(a). McAllister v. Weikel, No. 1:12-CV-2273, 2015 WL 3953048, at *1 (M.D. Pa.
June 29, 2015). Rule 33 of the Federal Rules of Civil Procedure provides that a party
upon whom interrogatories are served has 30 days in which to answer them.
In this case, the defendant served Legrand with interrogatories on September
1, 2014. Legrand has never answered these interrogatories or objected to them.
Instead, Legrand sought the appointment of counsel, and to stay a response deadline
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until counsel could be found. This resulted in discovery being stayed for a period of
time after the court entered an order conditionally appointing counsel. However,
despite the court’s efforts, no counsel could be identified who were willing to assist
Legrand in litigating this case, and Legrand was accordingly notified in April 2015
that he would be required to litigate this matter on his own behalf. Despite entry of
this order, Legrand has failed to respond to the interrogatories in any meaningful way.
The outstanding interrogatories are modest in scope, consisting of seven
questions, all of which seek factual information regarding: Legrand’s alleged
symptoms from food poisoning; witnesses to his symptoms; assistance that he was
provided in the wake of his illness; the scope of damages sought; his past and current
medical conditions; and information regarding prescription medication that Legrand
has taken between June 25, 2011, and the present day. (Doc. 209-2, First Set of
Interrogatories.) The interrogatories are accompanied by instructions that provide,
among other things, that if Legrand is unable to answer any question completely, to
“supply such information as is available. Explain why such answer is incomplete, the
efforts made to obtain the information, and the source from which the complete
answer may be obtained.” (Id.)

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Legrand seeks to be excused from answering the outstanding interrogatories
for an unspecified period of time because some unidentified legal materials have gone
missing during a recent prison transfer. (Doc. 211.) Regardless of what these papers
may be, or what they may contain, the court does not find that their loss has rendered
Legrand incapable of furnishing any answers to the seven straightforward factual
questions that the defendant propounded nearly 11 months ago, and which were again
served upon Legrand as an attachment to the defendant’s motion to compel. (Doc.
209-2.) Legrand should be capable of providing answers to these questions, since
they seek information about what Legrand claims to have occurred, and seek purely
factual information that goes to the heart of Legrand’s claims and are relevant to
potential defenses in this case. Legrand has provided no compelling reason why he
is unable to answer these questions, and we find that he must answer them so that this
litigation, which is more than three years old, can proceed towards a fair resolution.
III.

ORDER
Accordingly, upon consideration, and for the reasons explained above, IT IS

HEREBY ORDERED THAT the defendant’s motion to compel (Doc. 209.) is
GRANTED and the plaintiff’s motion for an open-ended extension of time to answer
the interrogatories (Doc. 211.) is DENIED. Instead, the plaintiff is ORDERED to
provide the defendant with answers to the First Set of Interrogatories on or before
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Monday, August 17, 2015. If the plaintiff is unable to furnish complete responses
to any question, he shall provide the defendant with some explanation regarding the
reason for the incomplete response, in accordance with the instructions set forth in
the interrogatories.
IT IS FURTHER ORDERED that the Clerk of Court shall send the plaintiff a
copy of the defendant’s first set of interrogatories (Doc. 209-2.) with this Order.
So Ordered this 31st day of July 2015.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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