KOKINDA v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 77

MEMORANDUM OPINION & ORDER GRANTING IN PART and DENYING IN PART 65 MOTION to Compel Discovery filed by JASON KOKINDA. Discovery deadline is extended to 3/26/2018; Motions for Summary Judgment due by 4/27/2018; Brief(s) in Opposition due by 5/25/2018; Reply brief(s) due by 6/8/2018. Signed by Magistrate Judge Cynthia Reed Eddy on 2/23/18. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON KOKINDA,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; RHONDA HOUSE;
SHELLY A. MANKEY; JOHN DOE #1;
and JOHN DOE #2,
Defendants.

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Civil Action No. 2:16-cv-0005
United State District Judge
Mark R. Hornak
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM ORDER
Plaintiff Jason Kokinda, a former prisoner, initiated this pro se civil rights action by filing
a motion for leave to proceed in forma pauperis on January 4, 2016. After resolution of motions
to dismiss, the following claims1 remain in this case: a First Amendment retaliation claim and an
Eighth Amendment claim arising from Plaintiff’s allegations that during his confinement at SCIFayette he was subjected to a single, retaliatory cell search after submitting a request slip to a
prison official.
Presently pending is a Motion to Compel (ECF No. 65), to which the Defendants have
responded (ECF No. 67). Plaintiff has also filed a reply and supplement (ECF No. 68, 70, 71,
72). Plaintiff claims defendants have provided insufficient and evasive discovery responses and
is deserving of sanctions. For the following reasons, the motion is granted in part and denied in
part.

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The operative pleading is the First Amended Complaint. (ECF No. 29).

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I.

Procedural History

On October 6, 2017, the Court entered a Case Management Order which, inter alia,
ordered that:
no later than November 6, 2017, to the extent not otherwise provided, Defendants
shall provide Plaintiff with the following:
(1) all incident reports, grievances and appeals therefrom, disciplinary reports,
investigative reports, appeals, or other similar documents in its possession
concerning the alleged incident or incidents, and
(2) all records concerning the alleged incident or incidents.
Defendants are ordered to file a notice with this Court stating that this Order has been
complied with on or before November 6, 2017.

(ECF No. 49 at 1). We further ordered that Plaintiff may not submit requests for
discovery directly to the Defendants without leave of Court. (ECF No. 49 at 1-2).
On October 24, 2017, Defendants filed said notice, certifying that all relevant documents
were provided to Plaintiff via U.S. Mail on October 24, 2017. (ECF No. 54). Thereafter, the
Plaintiff’s filed a Motion for Discovery (ECF No. 61), and Defendants indicated in their
Response that “Defendants do not object to Plaintiff’s Motion but reserve the right to object to
any objectionable request contained within it.” (ECF No. 60). The Court then granted the
Motion for Discovery. (ECF No. 61). Our Amended Case Management Order dated November
29, 2017 extended the discovery deadline to February 2, 2018 and ordered that motions for
summary judgment be filed by February 23, 2018. (ECF No. 64). Defendants filed their motion
for summary judgment on February 22, 2018. (ECF No. 73).
In his Motion to Compel Plaintiff states the Defendants “failed to answer plaintiff's
discovery requests and file legitimate objections to the remaining discovery requests,” and seeks
sanctions as a result. (Doc. 65).
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II.

Legal Standard

Rule 37 of the Federal Rules of Civil Procedure governs motions for sanctions. The scope
of what type of discovery may be compelled under Rule 37, and give rise to sanctions, 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 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 the scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ.P. 26(b)(1).
This scope formerly included matters that were “reasonably calculated” to lead to the
discovery of relevant evidence, but Rule 26 as amended no longer includes this language. A
matter 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.” See Fed. R.
Evid. 401.
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.
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A party moving under Rule 37 to compel discovery, or for sanctions, 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). If the movant meets this initial burden, then the
burden shifts to the person resisting discovery to establish that discovery of the material
requested is inappropriate. Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa.
1996) (citation omitted). The person resisting discovery must explain with specificity why
discovery is inappropriate; the boilerplate litany that the discovery sought is overly broad,
burdensome, oppressive, vague, or irrelevant is insufficient. See Josephs v. Harris Corp., 677
F.2d 985, 991-92 (3d Cir. 1982).
While this Court grants pro se plaintiffs leniency when considering their filings, such
plaintiffs are nevertheless expected to “‘follow the rules of procedure and the substantive
law.’” Perkins v. Delaware DHSS/DSSC, Civ. Action No. 12–50–SLR–CJB, 2012 WL 4482801,
at *6 (D. Del. Sept. 27, 2012) (quoting Thompson v. Target Stores, 501 F.Supp.2d 601, 603 (D.
Del. 2007)).
In addition to these guiding principles, it is clear that the court cannot compel the
production of things that do not exist. Nor can the court compel the creation of evidence by
parties who attest that they do not possess the materials sought by an adversary in litigation. See,
e.g., AFSCME District Council 47 Health and Welfare Fund v. Ortho–McNeil–Janssen
Pharmaceuticals, Inc.., No. 08–5904, 2010 WL 5186088 (E.D. Pa. Dec.21, 2010); Knauss v.
Shannon, No. 08–1698, 2009 WL 975251 (M.D. Pa. April 9, 2009)

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III.

Discussion
A. Discovery Requests Propounded on Defendants Mankey and House

With these legal guideposts in mind, we turn to consideration of Plaintiff’s motion.
Plaintiff’s motion, apparently based on Plaintiff’s obvious dissatisfaction with the existence of
evidence to support his underlying claims, is denied on the basis that it lacks merit, as well as
being frivolous and spurious.
The Motion to Compel concerns: 1) two separate Requests for Admission propounded as
to Defendant Shelly A. Mankey (a Unit Manager at SCI-Fayette to whom Kokinda alleges he
gave a request slip) and Defendant Rhonda House (an assistant to the prison Superintendent); 2)
two separate sets of Interrogatories as to these same two defendants; and 3) a Request for
Production of Documents. (ECF No. 65-3). The Court has reviewed the Defendants’ Objections
to the Requests for Admissions, Interrogatories and Request for Production as well as positions
of the parties.
Initially we will address Plaintiff’s argument that Defendants should have objected to his
discovery requests before we granted his Motion to Serve Discovery, and on that basis, Plaintiff
requests a ruling that all of the objections have been waived. To the contrary, it was acceptable
for Defendants to object to the discovery after they were served with such. Objections to
discovery cannot be propounded before the discovery is served, and Defendants reserved the
right to so object when they filed their Response to Plaintiff’s Motion to Serve Discovery.
Nothing was waived and therefore will not be deemed admitted.
Next, the court sustains each of Defendants’ objections. It is understandably vexing to a
pro se litigant that in their responses, Defendants often base their objections on the grounds that
the requests are overly broad, unduly burdensome, and irrelevant. However, that does not negate
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the fact that Defendants herein have in large part further clarified and supplemented their
responses after stating these objections.

Defendants have either answered the requests,

explained that they had no personal knowledge of the information sought, and explained that
they are not required to provide answers to requests seeking legal conclusions. If they have not
answered the request, we find that they have otherwise appropriately objected to the discovery
sought.
Specifically, we note that Defendants have correctly objected to Interrogatories posed to
these two lay defendants in which Plaintiff asks them to set forth facts relied on to support
various defenses or legal standards, such as deliberate indifference or qualified immunity. See,
e.g., Defendant House’s Response to Request for Admission Nos. 3, 4, and 5 (ECF No. 65-3 at
20-21.) It was appropriate to object to providing Plaintiff with information, including phone
numbers and addresses of other prisoners, on the grounds of confidentiality. It was appropriate
to object to Plaintiff’s request for internal reports concerning why the entire prison was in a three
day lock down on the basis of confidentiality and relevance.
In addition, we note that Plaintiff has asked in his Request for Production #1 video
footage of the search of the cellblock on the day of the incident. Defendant objected to the
request on the grounds that the routine video is only kept until memory is exhausted and then
they are recorded over. Defendants further argue this point in their Brief in Opposition (ECF No
67). Under Fed. R. Civ, P. 11(b)(3), in so making this representation to the Court, counsel is
certifying that to the best of his knowledge, information, and belief, the factual contention has
evidentiary support. The videotapes do not exist, and counsel has certified that it has provided all
discovery materials relevant to Plaintiff’s claims. When discovery requests seek material that
does not exist, there is nothing to compel. Furthermore, Defendants’ brief also notes that the
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videotape evidence is not relevant because it would not have recorded what happened inside the
cell. Even if such videotapes existed of cell activity for the day of the incident (the alleged
retaliatory “shakedown” of Plaintiff’s cell including scattering of Plaintiff’s legal documents and
damage to his typewriter, keyboard and television), it would not have been visible from the
particular camera in place at the time. Finally, there is no evidence of spoliation beyond
Plaintiff’s own speculation. Plaintiff filed this lawsuit in January 2016, months after his release
from prison (alleged to have been November 1, 2015. We will decline to impose monetary
sanctions on Defendants or their counsel as there are no grounds for such remedy.
B. Discovery as to now-identified John Doe #1 and #2
We note that in her answer to Interrogatory No. 2, Defendant House identifies the names
of the “search team #13” (those who searched Plaintiff’s cell, alleged in the Complaint as John
Doe #1 and 2) as Correction Officers Alan Wheatley and Donald Koffler, address at SCI-Fayette.
As far as we can discern, this is the first time that Plaintiff was informed of the identities of these
individuals. Accordingly, the Court will sua sponte substitute these parties in the caption of the
case.
These discovery responses were provided to Plaintiff on January 18, 2018 via U.S. Mail;
as noted supra, discovery ended February 2, 2018. Plaintiff complains that Defendants have
inappropriately failed to have these CO’s answer the requests, despite having named them in the
response. (ECF No. 71 at 2). Defendants have moved for summary judgment on February 22,
2018 (ECF No. 73). In their brief they argue that “neither Defendant had anything to do with
these searches,” (ECF No. 74 at 1), an apparent reference to Mankey and House, but not
Correction Officers Alan Wheatley and Donald Koffler.

Plaintiff has not been afforded an

opportunity to propound discovery on these individuals, which may shed light on his First
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Amendment and Eighth Amendment claims. Accordingly, the Motion to Compel is granted in
part as to Plaintiff’s need to propound discovery as to these newly-named Defendants.
Discovery will be extended by 30 days, limited to COs Wheatley and Koffler.

The briefing

schedule for the motions for summary judgment will adjusted accordingly and Defendants will
be provided an opportunity to supplement their motion and concomitant filings.
This Court notes that while Plaintiff is a pro se litigant, he is not unfamiliar with the
Federal Rules of Civil Procedure, or the legal process. He currently has multiple cases pending in
this Court and has filed and actively litigated numerous federal and state court actions. The Court
admonishes Plaintiff of its dissatisfaction with Plaintiff's repeated filing of motions containing
allegations intended to mislead this Court and malicious ad hominem attacks on the integrity of
the Court, Defendants and their counsel. Bracey v. Harlow, No. CIV.A. 11-04 E, 2013 WL
153312, at *1 (W.D. Pa. Jan. 15, 2013). For example, he states that Defendants’ attorney has
exercised “vindictive” conduct (ECF No. 71 at 1, 8) and accuses them of “stonewalling
evidence.” (ECF No. 71 at 2). He further argues that this is a “David versus Goliath battle”
waged “[w]hile the Defendants continue to collect fat govt. paychecks, and expend unlimited
amounts of money to attack him in the Court with skullduggery filings, and retaliate against him
in the real world in interstate conspiracies.” (ECF No. 71 at 7).
Plaintiff is advised that any such subsequent filings in this Court, with regard to any case
pending before it, containing such improper attacks and misleading allegations may be subject to
the harshest of sanctions, including possible dismissal of his action. In re: Prudential Ins. Co.
America

Sales

Practice

Litig.

Agent

Actions, 278

F.3d

175,

189

(3d

Cir.2002)

(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991))
(Rule 11 of the Federal Rules of Civil Procedure allows sanctions to be imposed against a party
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through the Court's inherent power and its own initiative. Circumstances that may
justify sanctions pursuant to a court's inherent power include “cases where a party has acted in
bad faith, vexatiously, wantonly, or for oppressive reasons ....”); and see, Rivera v. Pennsylvania
Dept. of Corr., C.A. No. 09–1604, 2010 WL 4318584 (W.D. Pa. Oct.26, 2010) (deliberate
attempts to mislead this Court exposes prisoner plaintiff to sanctions pursuant to Rule 11 of the
Federal Rules of Civil Procedure, which apply to pro se litigants as well as to attorneys).
AND NOW, to-wit, this 23rd day of February, 2018, it is hereby ORDERED,
ADJUDGED and DECEED that Plaintiff’s Motion to Compel is GRANTED IN PART to the
extent Plaintiff seeks additional discovery as to Defendants Wheatley and Koffler, and DENIED
in all other respects.
IT IS FURTHER ORDERED THAT:
1. Discovery in this case is hereby EXTENDED to March 26, 2018;
2. Defendant shall file a Supplemental Motion for Summary Judgment as to Defendants
Wheatley and Koffler on or before April 27, 2018;
3. Plaintiff may file a Motion for Summary Judgment on or before April 27, 2018;
4. Responses to Motions for Summary Judgment are due May 25, 2018; and
5. Reply Briefs shall be filed on or before June 8, 2018.

Dated: February 23, 2018

cc:

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

all registered users of CM-ECF
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