Kates v. Packer et al

Filing 244

MEMORANDUM (Order to follow as separate docket entry) re 215 MOTION to Compel Discovery filed by David E Kates Signed by Magistrate Judge Joseph F. Saporito, Jr on 7/21/17. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DAVID E. KATES,
Plaintiff,

CIVIL ACTION NO. 3:13-cv-01525

v.

(CAPUTO, J.)
(SAPORITO, M.J.)

C.O. ROBERT PACKER, et al.,
Defendants.

MEMORANDUM
This is a fee-paid pro se prisoner civil rights action. At the time of his
alleged injury, plaintiff David E. Kates was a prisoner at USP Lewisburg,
located in Union County, Pennsylvania. He is currently incarcerated at
FCI Forrest City, located in St. Francis County, Arkansas.
On June 7, 2013, the Court received and filed a pro se complaint
against 21 separate defendants in which Kates alleged the violation of his
federal constitutional rights pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1; Doc.
2).1 In the complaint, Kates alleged that, on May 24, 2012, he was severely

Upon receipt, the Clerk docketed the complaint as two separate
items, labeled as a complaint and a supporting memorandum of law. The
“memorandum,” however, is largely a recitation of factual allegations,
(continued on next page)
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beaten by several correctional officers, that he was refused appropriate
medical care in the days and weeks that followed his alleged beating, and
that his rights were further violated in the conduct of a related
disciplinary hearing, which resulted in his being sanctioned with the loss
of good conduct time.
On August 25, 2015, we recommended dismissal of the plaintiff’s
claims for prospective declaratory and injunctive relief as moot, and
dismissal of the remainder of his complaint for failure to state a claim
upon which relief can be granted. (Doc. 179). On March 29, 2016, the Court
adopted our recommendation in part and rejected it in part. (Doc. 186; Doc.
187). What remains are two damages claims under Bivens: (1) an Eighth
Amendment excessive force claim against defendants Packer, Wise,
Stroud, and Wagner; and (2) an Eighth Amendment failure to
protect/intervene claim against defendants Brandt, Packer, Wise, Stroud,
Wagner, Booth, and Eroh. (See Doc. 186; Doc. 187). Since then, the parties
have been engaged in an extended period of discovery, complicated
elaborating upon the mostly conclusory allegations of the preprinted form
docketed as a “complaint.” Mindful of its obligation to liberally construe
the filings of pro se litigants, especially those who are incarcerated, these
items are construed together as the plaintiff’s complaint. See generally
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–46 (3d Cir. 2013).
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somewhat by the plaintiff’s incarceration and his multiple transfers from
one federal correctional institution to another.
This matter is now before the Court on the plaintiff’s Rule 37(a)
motion to compel. (Doc. 215). According to the parties’ motion papers, the
plaintiff has served the defendants with Rule 33 interrogatories and Rule
34 requests for the production of documents, but the defendants have
failed to answer the interrogatories or to produce responsive documents to
the plaintiff’s satisfaction. We address these discovery requests below,
seriatim. As explained below, the plaintiff’s motion will be granted in part
and denied in part.
A. Interrogatory No. 5
Interrogatory No. 5 is directed to defendant Stroud, asking him to
answer two separate questions: (a) “the name of the other two officers who
assisted you [in] escort[ing] Mr. Kates down the range on May 24, 2012”;
and (b) “are you aware that another officer on May 24, 2012[,] stated
‘inmate Collins bit R. Packer” (yes or no). (Doc. 216, at 6).
The defendants have objected to this interrogatory on the grounds
that it is overly broad and vague, explaining that it “is not clear whether
[the plaintiff] is requesting information as to staff who escorted him from

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his cell to the shower area or from the shower area to the new cell
assignment.” (Doc. 225-1, at 69). The defendants have further objected
that “information regarding escorting officers (memoranda of staff
concerning this incident) had been previously provided to Kates . . . and is
part of the record.” (Id.).
Starting with the second objection, we note that, under Rule 33(d),
when a response to an interrogatory may be derived from business records
and when the burden of deriving the answer from the records is
substantially the same for both sides, the production of these business
records sufficiently answers the interrogatory. See Fed. R. Civ. P. 33(d).
This provision “relat[es] especially to interrogatories which require a party
to engage in burdensome or expensive research into his own business
records in order to give an answer.” Fed. R. Civ. P. 33 advisory committee
note (1970). “[I]f an answer is readily available in a more convenient form,
Rule 33([d]) should not be used to avoid giving the ready information to a
serving party.” Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 226 (10th
Cir. 1976). This interrogatory does not seek information that should
require the defendants to engage in burdensome research or analysis of
their business records to answer. It seeks information readily available to

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defendant Stroud from his personal knowledge—the names of two other
officers who assisted him in escorting the plaintiff on May 24, 2012, and
whether defendant Stroud is personally aware that another officer stated
that inmate Collins, the plaintiff’s cellmate, bit defendant Packer.
Moreover, we find the interrogatory neither unreasonably vague nor
overly broad. Kates’s surviving claims concern the alleged use of excessive
force in an unmonitored area while being escorted from his original cell to
the shower area. In context, it is clear that the interrogatory concerns that
leg of Kates’s movements under escort that day. The defendants’ objection
provides no basis for their failure to answer and identify the other two
officers who joined defendant Stroud in escorting Kates from his original
cell to the shower area. To the extent the defendants believe it necessary
to clarify this distinction—between the first leg of Kates’s movements
under escort, from original cell to shower area, and his second leg, from
shower area to new cell—they were, and remain, free to qualify Stroud’s
answer to this interrogatory. See Pulsecard, Inc. v. Discover Card Servs.,
Inc., No. CIV. A. 94-2304-EEO, 1996 WL 397567, at *8 (D. Kan. July 11,
1996) (“Plaintiff may determine whether to qualify its answer. The
possibility of qualification does not, however, make the interrogatory

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objectionable. Fed. R. Civ. P. 33(b)([3]) contemplates the possibility of
qualification. It directs parties to answer interrogatories to the extent they
are not objectionable.”).
Accordingly, the defendants’ objections to Interrogatory No. 5 will be
overruled, the motion will be granted with respect to this interrogatory,
and defendant Stroud will be directed to answer both parts of this
interrogatory, identifying the other two officers who assisted in escorting
Kates from his cell to the shower area on May 24, 2012, and stating
whether he is aware that another officer stated that inmate Collins bit
defendant Packer.
B. Interrogatory No. 7
Interrogatory No. 7 is directed to defendants Wagner and Stroud,
asking each respectively to answer one of two unrelated questions: (a) “the
name of the second officer who was alle[ged]ly bit[t]en by Mr. Kates,”
directed to Wagner; and (b) “what body part on Mr. Kates [did] you
assi[s]t[] in controlling on May 24, 2012,” directed to Stroud. (Doc. 216, at
6).
The defendants have objected to this interrogatory on the grounds
that it is vague and a compound question, explaining that the “two

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separate requests/statements in [this interrogatory] make it confusing to
determine what is being requested.” (Doc. 225-1, at 70). The defendants
have further objected that “information regarding all memoranda of staff
and incident reports regarding this incident have been provided to Kates
and are part of the record,” and advised that “[s]taff injury assessments
are attached for Kates’[s] convenience.” (Id.). 2
As noted above, under Rule 33(d), reference to business records in
lieu of a straightforward answer to an interrogatory is generally reserved
for “interrogatories which require a party to engage in burdensome or
expensive research into his own business records in order to give an
answer.” See Fed. R. Civ. P. 33(d) & advisory committee note (1970). “[I]f
an answer is readily available in a more convenient form, Rule 33([d])
should not be used to avoid giving the ready information to a serving
party.” Daiflon, Inc., 534 F.2d at 226. This interrogatory does not seek
information that should require the defendants to engage in burdensome
research or analysis of their business records to answer. It seeks
information readily available to defendants Wagner and Stroud from their
The staff injury assessments were actually attached to the
defendants’ response to Kates’s request for production of documents. (See
Doc. 225-1, at 38–39).
2

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personal knowledge—from Wagner, the name of a second officer who was
allegedly bitten by Kates, and from Stroud, the part of Kates’s body over
which Stroud exercised control during his movement from his original cell
to the shower area on May 24, 2012.
The defendants object that this interrogatory poses a compound
question, but the mere fact that an interrogatory addresses multiple topics
does not render it unduly burdensome. See Parks, LLC v. Tyson Foods,
Inc., No. 5:15-cv-00946, 2015 WL 5042918, at *5 n.3 (E.D. Pa. Aug. 26,
2015) (“Rule 33(a)(1) provides that a ‘discrete subpart’ of an interrogatory
counts separately toward the twenty-five interrogatory limit imposed by
the Rule, but the Rule does not require an interrogatory that contains
multiple parts to separately identify each part.”).
When Rule 33(a) was amended to limit the number of
interrogatories that can be propounded, the draftsmen
appreciated that the numerical restriction could be
evaded by “joining as ‘subparts’ questions that seek
information about discrete separate subjects.” Fed. R.
Civ. P. 33 advisory committee’s note [(1993)]. Therefore,
the numerical limitation in the rule is stated as “not
exceeding 25 in number including all discrete subparts.”
Fed. R. Civ. P. 33(a).
Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004).
As we have recently held, “a subpart is discrete and regarded as a separate

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interrogatory when it is logically or factually independent of the question
posed by the basic interrogatory.” Pulchalski v. Franklin Cty., CIVIL NO.
15-CV-1365, 2017 WL 57143, at *4 (M.D. Pa. Jan. 5, 2017) (quoting
another source) (brackets omitted). The two parts to Kates’s Interrogatory
No. 7 are clearly discrete subparts, and thus this interrogatory should be
counted as two for the purpose of the 25-interrogatory limit. But there is
no suggestion in the record before the Court that construing Interrogatory
No. 7 in this manner would cause Kates to exceed the 25-interrogatory
limit, and our own review of the full set of interrogatories propounded by
Kates suggests that he is well within the limit even if all discrete subparts
are counted separately. (See Doc. 216).
Nor do we find the interrogatory to be unreasonably vague. Although
it poses two separate questions to two separate defendants, it is clear what
information Kates seeks from each. From defendant Wagner, Kates seeks
to identify a second officer who was allegedly bitten by Kates, and from
defendant Stroud, Kates seeks to identify the body part of his over which
Stroud exercised control while escorting Kates from his original cell to the
shower area on May 24, 2012.
Accordingly, the defendants’ objections to Interrogatory No. 7 will be

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overruled, the motion will be granted with respect to this interrogatory,
defendant Wagner will be directed to answer the first part of this
interrogatory, identifying the second officer whom Kates is alleged to have
bitten, and defendant Stroud will be directed to answer the second part of
this interrogatory, identifying the body part of Kates’s over which Stroud
exercised control while escorting Kates from his original cell to the shower
area on May 24, 2012.
C. Interrogatory No. 8
Interrogatory No. 8 is directed to defendant Packer, asking him to
answer three separate questions: (a) identify “the exact place or spot [on
the range] [where] Mr. Kates alle[ged]ly bit you . . . on May 24, 2012”;
(b) identify the location on the range where Kates was “taken down” after
he allegedly bit Packer; and (c) identify the location on the range where
Kates was “taken down” after the “alle[ged] second biting.” (Doc. 216, at 6).
The defendants have objected to this interrogatory on the grounds
that it is vague and a compound question, explaining that the “three
separate questions/statements in [this interrogatory] make[] it confusing
to determine what is being requested.” (Doc. 225-1, at 71). The defendants
have further objected that “information regarding all memoranda of staff

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and incident reports regarding this incident have been provided to Kates
and are part of the record.” (Id.).
As noted above, under Rule 33(d), reference to business records in
lieu of a straightforward answer to an interrogatory is generally reserved
for “interrogatories which require a party to engage in burdensome or
expensive research into his own business records in order to give an
answer.” See Fed. R. Civ. P. 33(d) & advisory committee note (1970). “[I]f
an answer is readily available in a more convenient form, Rule 33([d])
should not be used to avoid giving the ready information to a serving
party.” Daiflon, Inc., 534 F.2d at 226. This interrogatory does not seek
information that should require the defendants to engage in burdensome
research or analysis of their business records to answer. It seeks
information readily available to defendant Packer from his personal
knowledge—the particular location within the prison where Kates
allegedly bit Packer, the particular location within the prison where Kates
was allegedly “taken down” after he bit Packer, and the particular location
within the prison where Kates was allegedly “taken down” a second time
after he allegedly bit a second officer.
The defendants object once again that this interrogatory poses a

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compound question, but, as noted above, the mere fact that an
interrogatory addresses multiple topics does not render it unduly
burdensome. See Parks, LLC, 2015 WL 5042918, at *5 n.3. “[A] subpart is
discrete and regarded as a separate interrogatory when it is logically or
factually independent of the question posed by the basic interrogatory.”
Pulchalski, 2017 WL 57143, at *4; see also Banks, 222 F.R.D. at 10. In this
instance, it is our impression that the three questions posed in
Interrogatory No. 8 concern a single topic, but even assuming arguendo
that they constitute discrete subparts counted separately for the purpose
of the 25-interrogatory limit, there is nothing in the record before us to
suggest that counting Interrogatory No. 8 as three discrete subparts would
cause Kates to exceed the 25-interrogatory limit—as noted above, our own
review of the full set of interrogatories propounded by Kates suggests that
he is well within the limit even if all discrete subparts are counted
separately. (See Doc. 216).
Accordingly, the defendants’ objections to Interrogatory No. 8 will be
overruled, the motion will be granted with respect to this interrogatory,
and defendant Packer will be directed to answer all three parts of this
interrogatory, identifying the particular location within the prison where

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Kates allegedly bit Packer, the particular location within the prison where
Kates was allegedly “taken down” after he bit Packer, and the particular
location within the prison where Kates was allegedly “taken down” a
second time after he allegedly bit a second officer.
D. Request for Production of Documents No. 1
Document Request No. 1 seeks the production of “all documents or
things described, referenced, or identified in” the defendants’ answers to
interrogatories. (Doc. 216, at 7).
The defendants have objected to this document request on the
grounds that it is overly broad and vague, explaining that “numerous
documents referenced in the responses to interrogatories” were previously
produced, and that documents related to May 24, 2012, incident are
already part of the record. (Doc. 225-1, at 71). The defendants failed to
articulate any basis for their vagueness objection. (See id.).
In response to the defendants’ objections, the plaintiff served a
document labeled as his second set of requests for production of
documents, but instead of promulgating additional new requests, in this
document Kates sought to “clarify” his previous document requests. (Id. at

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89–94). 3 With respect to Document Request No. 1, Kates clarified that
“plaintiff only need[s] the documents on who participated in the
investigation on remaining defendants and the nature thereof (i.e.)
[Special Investigative Services,] internal affairs[,] etc.” addressed in his
Interrogatory No. 1, and documents concerning each defendant’s work
duties and disciplinary history, addressed in his Interrogatory No. 3. (Id.
at 89).
The defendants have objected to “clarified” Document Request No. 1
on the grounds that it is “vague and unclear as to what is being
requested,” explaining that:
To the extent the Plaintiff is requesting documentation
regarding the investigation of Defendant Packer, the
Defendant states production of such investigation would
jeopardize the safety and security of the institution. To
the extent the Plaintiff is requesting documentation
related to investigations of other defendants related to
the claims herein, the Defendants state none of the
other defendants were investigated related to the
underlying claims in this action. To the extent the
Plaintiff is requesting information regarding
disciplinary investigations of the defendants of incidents
unrelated to the claims in the instant law suit, the
Defendants state such incidents would be irrelevant to
Kates later served the defendants with a second copy of the very
same document. (Doc. 225-1, at 98–103). Except for the date, the second
copy was identical to the first.
3

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this matter.
(Id. at 110). Except for investigation-related documents, the defendants
represent that they have produced all responsive documents. (Doc. 225, at
12).
We agree with the defendants that the disciplinary history of the
defendants concerning incidents unrelated to the events giving rise to this
action are irrelevant, and we will deny the motion to compel with respect
to such documents. Concerning the investigation of defendant Packer, we
are sensitive to the institutional security concerns raised by the
defendants, and thus we will order the defendants to produce any
responsive documents to the Court for in camera inspection, together with
a properly supported memorandum of law and an affidavit or declaration
outlining the basis for their position that these documents should be
withheld from the plaintiff based on institutional security. 4 See Sloan v.
Murray, Civil No. 3:CV-11-0994, 2013 WL 5551162, at *3 (M.D. Pa. Oct. 8,
2013) (“A conclusory objection reciting a mantra of institutional

The responsive documents, memorandum of law, and affidavit or
declaration should be submitted to chambers ex parte. In our review, we
will determine whether any of these materials should be filed and entered
into the record of this case, and whether such filing should be under seal.
4

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security . . . is insufficient. A party wishing to obtain a protective order to
prevent the disclosure of information through the discovery process has
the burden of demonstrating that ‘good cause’ exists for the order.”).
Concerning any investigation of the other defendants, the defendants have
disclosed that no responsive documents exist because none of the other
defendants were investigated in connection with the events giving rise to
this action; a party “cannot be compelled to produce what she does not
possess,” and thus the motion to compel will be denied with respect to such
documents. Dipietro v. Jefferson Bank, 144 F.R.D. 279, 281 (E.D. Pa.
1992).
Accordingly, the defendants’ objections to Document Request No. 1
will be sustained in part and the motion denied in part, with a ruling on
documents regarding the investigation of defendant Packer deferred
pending the ex parte production of responsive documents concerning the
Packer investigation to the Court for in camera inspection.
E. Request for Production of Documents No. 3
Document Request No. 3 seeks production of “the hand-held camera
footage on second floor, from May 24, 2012[,] that was operated by Dennis
Campbell and B. Mattern, [and] also the range video footage from [May 24,

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2012].” (Doc. 216, at 7). In April 2016, Kates was permitted to view the
range video footage per his request. (Doc. 225, at 14; Doc. 225-1, at 33
(“The video of the incident that has been retained was shown to Kates in
April 2016.”)). Kates seeks an order compelling the defendants to produce
hand-held video footage recorded by former defendants Campbell and
Mattern. 5 But Kates’s surviving claims solely concern the alleged use of
excessive force in an unmonitored area while being escorted from his
original cell to the shower area. It is undisputed that the hand-held video
footage recorded by Campbell and Mattern is limited to footage of a
medical assessment of Kates in the shower area and his movement from
the shower area to a new cell; it does not document any conduct or events
that occurred during the immediately prior, relevant time period during
which Kates was escorted from his original cell to the shower area. (See
Doc. 151-6, at 34–41). Accordingly, the motion will be denied with respect
to Document Request No. 3.
F. Request for Production of Documents No. 4
Document Request No. 4 seeks production of “the pdf[] files, photos,

Both of these defendants were dismissed from this case by the
Court on March 29, 2016. (Doc. 186; Doc. 187).
5

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medical reports, statements[,] etc. [with respect to] C.O. R. Packer and the
unidentified officer who was alle[ged]ly bit[t]en by Mr. Kates.” (Doc. 216,
at 7).
The defendants objected to this document request on the grounds
that it is vague and overly broad, explaining that:
This request has no time frame and does not limit this
request to the incident at issue. Medical records or
photos of Defendant Packer would not have any
relevance to this matter. Moreover, the medical records
related to the incident of May 24, 2012[,] are a part of
the record.
(Doc. 225-1, at 33). Notwithstanding their objection, the defendants
produced a copy of an “Employee Injury Assessment and Followup
(Medical)” form dated May 24, 2012, which documented an injury to
defendant Packer’s pinky finger, caused when he was “bit by inmate.” (Id.
at 39). They also produced a copy of an “Employee Injury Assessment and
Followup (Medical)” form dated May 24, 2012, which documented an
injury to the right thumb of a non-party correctional officer, Scott
Buehendorf, caused when he was “bit by inmate Collins,” Kates’s cellmate.
(Id. at 38).
As noted above, the plaintiff subsequently served a document labeled
as his second set of requests for production of documents in which he
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sought to “clarify” his previous document requests. (Id. at 89–94). With
respect to Document Request No. 4, Kates clarified that “plaintiff only
need[s] the pdf file photos, medical report[,] and statements from May 24,
2012[,] between 9:50–10:15 p.m. on the unidentified officer who was
allegedly bitten by plaintiff Kates.” (Id. at 90).
In turn, the defendants have objected to “clarified” Document
Request No. 4 on the grounds that it is “irrelevant because the other officer
was bitten by Plaintiff’s cell mate.” (Id. at 112). Nevertheless, “[i]n a good
faith effort to be responsive, the staff medical evaluations [were produced,]
as [was] a photo of the other staff member bitten by Plaintiff’s cell mate.”
(Id.; see also id. at 117–19). The defendants further represent that there is
no indication that Kates bit a second officer, and thus no responsive
documents exist. (Doc. 225, at 15).
Accordingly, the defendants’ objections will be sustained and the
motion denied with respect to Document Request No. 4.
G. Request for Production of Documents No. 5
Document Request No. 5 seeks production of “any and all documents
relating to the prison medical center, staff training[,] and education.” (Doc.
216, at 7).

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The defendants objected to this document request on the grounds
that it is overly broad, vague, and irrelevant, explaining that:
Defendants do not know what documents Kates is
requesting. All documents relating to the prison medical
center is overly burdensome (including all medical
records of every inmate, all policies with no time frame
or limited issues, etc.), would not be relevant to this
case, and is not proportional to the needs of the case.
Additionally, the request for staff training and
education is vague and would require Defendants to
decipher what Kates seeks, which they cannot do.
(Doc. 225-1, at 34).
As noted above, the plaintiff subsequently served a document labeled
as his second set of requests for production of documents in which he
sought to “clarify” his previous document requests. (Id. at 89–94). With
respect to Document Request No. 5, Kates clarified that “plaintiff only
need[s] the defendants[’] staf training on [] use of force . . . and education
certification in this same field, these request[s] are relevant and limited to
defendants[’] training and educational certification document[s] in this
matter.” (Id. at 91). Kates expressly withdrew his request with respect to
documents relating to the medical center. (Id.).
In turn, the defendants answered “clarified” Document Request No.
5, advising that:

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Defendants have no records responsive to this request.
In a good faith [effort to be responsive], however, the
agency provides a redacted copy of the annual refresher
training for 2012 and evidence that the defendants
attended (including the course on use of force).
(Id. at 112–13).
Kates nevertheless seeks an order compelling the defendants to
produce additional use-of-force training materials. But a party “cannot be
compelled to produce what she does not possess.” Dipietro, 144 F.R.D. at
281.
Accordingly, the defendants’ objections will be sustained and the
motion denied with respect to Document Request No. 5.
H. Request for Production of Documents No. 9
Document Request No. 9 seeks production of “the hand-held
videotape of the medical examination and medical treatment that took
place on May 24, 2012, by nurse Hicks in the USP Lewisburg hospital.”
(Doc. 216, at 8). As noted previously, Kates’s surviving claims solely
concern the alleged use of excessive force in an unmonitored area while
being escorted from his original cell to the shower area. His deliberate
indifference claims regarding medical treatment have been dismissed.
Accordingly, the motion will be denied with respect to Document Request

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No. 9.

An appropriate Order will follow.

Dated: July 21, 2017

s/ Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

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