ROBINSON v. FOLINO et al

Filing 43

MEMORANDUM ORDER granting in part and denying in part 29 Motion to Compel Discovery as set forth more fully in the Memorandum Order itself. Signed by Magistrate Judge Maureen P. Kelly on 09/07/16. [A copy of this Memorandum Order was mailed to Plaintiff on this day at his address of record]. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HARVEY MIGUEL ROBINSON, JR.,
Plaintiff,
vs.
LOUIS S. FOLINO; PETER VIDONISH,
Sued in their individual capacities,
Defendants.

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Civil Action No. 14-227
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 29

MEMORANDUM ORDER
KELLY, Chief Magistrate Judge
Plaintiff Harvey Miguel Robinson, Jr. (“Plaintiff”) is an inmate in the custody of the
Pennsylvania Department of Corrections (“DOC”), and is currently incarcerated at the State
Correctional Institution at Greene (“SCI-Greene”). Plaintiff brings this civil rights action against
Defendants Louis S. Folino (“Folino”), the Superintendent at SCI-Greene, and Peter Vidonish
(“Vidonish”), the Unit Manager at SCI-Greene in charge of capital case prisoners, alleging, inter
alia, that Vidonish violated his rights provided by the First Amendment to the United States
Constitution by filing a misconduct against Plaintiff in retaliation for filing an inmate grievance.
Presently before the Court is a Motion to Compel Discovery filed by Plaintiff, ECF No.
29, in which he asks the Court to issue an order compelling Defendants to produce two
categories of documents that Plaintiff claims are relevant and necessary to establish his claims:
1) all inmate grievances filed against Vidonish during the course of his employment with the
DOC; and 2) all misconducts issued by Vidonish to any prisoner during the course of his
employment. ECF Nos. 29, 30. See ECF No. 30-2 at 2, ¶¶ 4-7. Defendants have declined to
produce these documents arguing that the requests are overbroad; unduly burdensome; not
relevant to Plaintiff’s claims; not proportional to the needs of Plaintiff’s case; and/or privileged

and confidential insofar as they relate to other inmates. ECF No. 33. See ECF No. 30-3 at 1-2,
¶¶ 4-7.
Federal Rule of Civil Procedure 26(b)(1) defines the scope of permissible discovery as
follows:
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 and proportional to the needs
of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., No. 13-MD-2445,
2016 WL 3519618, at *3 (E.D. Pa. June 28, 2016).1 “Evidence is relevant if ‘it has any tendency
to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of
consequence in determining the action.’” Id., quoting Fed. R. Evid. 401.
“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.” Johnson v. Holt,
Nos. 15-336 & 15-337, 2016 WL 74818, at *1 (M.D. Pa. Jan. 7, 2016). Thus, decisions relating
to the scope of discovery permitted under Rule 26 also rest in the sound discretion of the Court.
Id., citing Wisniewski v. Johns–Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). It is clear,
however, that Rule 26’s broad definition reaches only “nonprivileged matter that is relevant to
any party's claim or defense.” The Court's discretion in ruling on discovery issues is therefore
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The Federal Rules of Civil Procedure, including Rule 26(b)(1), were amended effective December 1, 2015, after
the start of this lawsuit. However, on April 29, 2015, the Supreme Court ordered that these amendments would be
applicable to all proceedings commenced on or after December 1, 2015, and all proceedings then pending, “insofar
as just and practicable.” Order ¶ 2 (U.S. Apr. 29, 2015); see also Fed. R. Civ. P. 86(a)(2) (amended rules govern
pending proceedings unless applying them “would be infeasible or work an injustice”). Because there does not
appear to be anything unjust or impractical in applying Rule 26(b)(1) as amended in this case, and neither party has
suggested otherwise, the Court finds that is applies. See United States v. Abbott Labs., No. 09-4264, 2016 WL
4247429, at *2 n.3 (E.D. Pa. Aug. 11, 2016).

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restricted by valid claims of relevance and privilege. Id. See Jackson v. Beard, No. 11-1431,
2014 WL 3868228, at *5 (M.D. Pa. Aug. 6, 2014) (“[a]lthough the scope of relevance in
discovery is far broader than that allowed for evidentiary purposes, it is not without its limits. . . .
Courts will not permit discovery where a request is made in bad faith, unduly burdensome,
irrelevant to the general subject matter of the action, or relates to confidential or privileged
information”) (internal quotations and citations omitted).
“A party moving to compel discovery bears the initial burden of proving the relevance of
the requested information.” Id., citing 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.’” Id., quoting In re Urethane Antitrust
Litigation, 261 F.R.D. 570, 573 (D. Kan. 2009).
Here, it should be noted at the outset that the sole issue in this case is whether Vidonish
issued a misconduct to Plaintiff in retaliation for filing a grievance. In order to sustain a claim
for retaliation, Plaintiff must establish that: (1) that he engaged in constitutionally protected
conduct; (2) that an adverse action was taken against him by a prison official; and (3) that there
is a causal connection between the exercise of his constitutional rights and the adverse action.
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). It is not disputed that filing a grievance is
protected activity or that issuing a misconduct constitutes an adverse action for purposes of a
retaliation claim. Thus, the success of Plaintiff’s claim turns on whether he can establish that the

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misconduct that Vidonish issued to Plaintiff was causally connected to Plaintiff filing a
grievance.
Against this backdrop, the Court is not convinced that grievances filed by other inmates
against Vidonish during the entire course of his employment would have a tendency to make it
more or less probable that Vidonish issued a misconduct to Plaintiff in retaliation for filing a
grievance. See Swinson v. Blakely, No. 14-1871, 2015 WL 4378484, at *3 (E.D. Pa. July 15,
2015) (finding that the plaintiff’s requests for information related to grievances filed by other
inmates against the defendant and the names of other inmates who Defendant had referred to
security were irrelevant to the plaintiff’s claim of retaliation for filing a grievance against the
defendant). Nevertheless, notwithstanding Plaintiff’s conclusory statement that grievances filed
against staff members are stored in their work records, ECF No. 30 at 2-3, Defendants have
represented that grievances are not stored according to the staff member against whom it was
filed but are stored according to the inmate who filed the grievance. ECF No. 33 at 2. Indeed, it
would appear that staff members are not always the subject of or named in inmate grievances.
Under these circumstances, the Court finds the burden of combing through the records of every
inmate who Vidonish has supervised during the course of his employment in order to ascertain
whether any of those inmates filed a grievance against Vidonish, even if relevant to the narrow
issue in this case, would be overbroad, unduly burdensome and disproportionate to the needs of
this case.
Moreover, grievances filed by other inmates could potentially contain confidential
information about those inmates as well as any named staff members and would create an
obvious security risk. See Lofton v. Wetzel, No. 12-1133, 2015 WL 5761918, at *2 (M.D. Pa.
Sept. 29, 2015) (“[plaintiff’s] request for incident reports and grievances regarding other inmates

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raises obvious privacy and security issues, and the relevance of such information is questionable
at best”). Accordingly, Plaintiff’s Motion to Compel insofar as he seeks any and all grievances
filed against Vidonish during the course of his employment with the DOC will be denied.
Plaintiff’s request relative to misconducts issued by Vidonish to any other prisoner during
the course of his employment, however, will be granted, albeit with certain restrictions.
Although Defendants initially objected to Plaintiff’s request for all misconducts issued by
Vidonish, in part, because such records “are not kept in a manner to easily obtain this
information,” ECF No. 30-3 at 2, Defendants have presently represented that in the fourteen year
time frame between 1999 and 2013, Vidonish issued a total of only eighteen misconducts and
that only one of those was issued to Plaintiff. ECF No. 33 at 2. It therefore appears that
Defendants have already searched for and obtained the misconducts sought by Plaintiff.
Moreover, although, in this Court’s view, the probative value of other misconducts issued by
Vidonish would be minimal at best, particularly given the few number of misconducts issued by
Vidonish, the United States Court of Appeals for the Third Circuit has suggested, albeit in dicta,
that discovery could possibly provide Plaintiff with evidence to support his retaliation claim
against Vidonish -- specifically, that Vidonish never cited another inmate for lying based on a
misstatement, as is at issue here. ECF No. 24 at 6. Accordingly, the Court will grant Plaintiff’s
Motion insofar as he seeks the nature of the misconducts issued by Vidonish during the course of
his employment with the DOC.
Misconducts filed against inmates, however, even more so that grievances filed by
inmates, would necessarily contain information regarding those inmates that Plaintiff should not
be privy to for both privacy and security reasons. See Lofton v. Wetzel, 2015 WL 5761918, at
*2. See also Banks v. Beard, No. 10-1480, 2013 WL 3773837, at *4–5 (M.D. Pa. July 17, 2013)

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(denying the plaintiff’s Motion to Compel production of information regarding other inmates’
accounts finding that, in addition to a DOC policy that specifically prohibits inmates from
accessing or possessing any information relating to other prisoners, divulging any such
information would create security concerns “in that if an inmate is aware of certain information
about another inmate, such knowledge can be used to manipulate, harass, blackmail, or assault
that inmate, thereby creating a substantial risk of physical harm to the subject inmate and any
staff who intervene”). Thus, in keeping with the Third Circuit Court of Appeals’ finding, the
Court will permit discovery into the misconducts issued by Vidonish during the course of his
employment limiting the information that Defendants are required to provide (at least at this
juncture) to the nature of the offense for which the misconduct was issued.
Accordingly, the following Order is entered:
ORDER
AND NOW, this 7th day of September, 2016, upon consideration of Plaintiff’s Motion to
Compel, ECF No. 29, IT IS HEREBY ORDERED that the Motion is granted in part and denied
in part follows: the Motion is DENIED insofar as Plaintiff seeks all inmate grievances filed
against Vidonish during the course of his employment with the DOC; the Motion is GRANTED
to the extent Plaintiff seeks information regarding the nature of any misconducts issued by
Vidonish during the course of his employment. IT IS FURTHER ORDERED that Defendants
are to produce to Plaintiff by September 20, 2016, redacted copies of the eighteen misconducts

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issued by Vidonish between 1999 and 2013, revealing only the number of the misconduct and
the offense for which the misconduct was issued.
BY THE COURT:

/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

cc:

Harvey Miguel Robinson, Jr.
CJ-8032
SCI-Greene
175 Progress Drive
Waynesburg, PA 15370
All Counsel of Record via CM-ECF

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