KOKINDA v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 117

MEMORANDUM OPINION & ORDER DENYING 93 MOTION to Compel Discovery filed by JASON KOKINDA. All deadlines set forth in our Amended Case Management Order 85 remain in full force and effect. Signed by Magistrate Judge Cynthia Reed Eddy on 3/5/18. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON KOKINDA,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, DR.
BYUNGHAK JIN, CHISTOPHER H.
OPPMAN, et al.
Defendants.

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Civil Action No. 16-1303

United States District Judge
Mark R. Hornak

United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION AND 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 August 26, 2016. His Third Amended
Complaint was filed on January 7, 2017. (ECF No. 33). Plaintiff alleges that in 2014, while
incarcerated at SCI-Green, he suffered a soy allergy; Defendants contend that he had a soy
intolerance. Remaining claims are an Eighth Amendment denial of medical care claim and a
Fourteenth Amendment equal protection claim against Dr. Byunghak Jin, and a claim under Title
II of the Americans with Disabilities Act (ADA) against the Pennsylvania Department of
Corrections and individuals employed there. (collectively, “DOC”).
Presently pending is a Motion to Compel (ECF No. 93), to which the Defendants have
responded (ECF Nos. 96, 97, 113). Plaintiff has also filed a reply and supplements (ECF Nos.
100, 101, 114). Plaintiff claims defendants have provided insufficient and evasive discovery
responses and are deserving of sanctions. For the following reasons, the motion is denied.

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I.

Procedural History

On September 5, 2017, the Court granted in part and denied in part various motions to
dismiss filed by the defendants (ECF No. 58), and Defendants filed their answers on September
15, 2017 (ECF No. 59) and September 19, 2017 (ECF No. 63). 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. 67 at 1). We further ordered that Plaintiff may not submit requests for
discovery directly to the Defendants without leave of Court. (ECF No. 67 at 1-2).
On October 18, 2017, Defendant Jin, Plaintiff’s treating physician at SCI-Green, filed
said notice (ECF No. 72), and on October 24, 2017 Defendant Pennsylvania Department of
Corrections filed its notice (ECF No. 75), both parties certifying that all relevant documents were
provided to Plaintiff via U.S. Mail. Thereafter, the Plaintiff’s filed a Motion for Discovery (ECF
No. 79), and Defendant DOC indicated in its Response that “Defendant Department of
Corrections does not object to Plaintiff’s Motion but reserve the right to object to any
objectionable request contained within it.” (ECF No. 81). The Court then granted the Motion
for Discovery. (ECF No. 82). Our Amended Case Management Order dated November 29,
2017 extended the discovery deadline to February 2, 2018 and ordered that motions for summary

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judgment be filed by February 23, 2018. (ECF No. 85). Defendants filed their motions for
summary judgment on February 21 and 23, 2018. (ECF No. 103, 110).
In his Motion to Compel Plaintiff states the Defendants failed to answer plaintiff's
discovery requests, provided boilerplate responses and evasive and argumentative answers; he
seeks sanctions as a result. (Doc. 93).
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
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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.
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
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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)
III.

Discussion

With these legal guideposts in mind, we turn to consideration of Plaintiff’s motion. The
Motion to Compel concerns: 1) two separate Requests for Admission propounded as to
Defendant DOC and Defendant Jin; 2) two separate sets of Interrogatories as to these same
defendants; and 3) two Requests for Production of Documents. (ECF No. 93-2, and 93-3). The
Court has reviewed the Defendants’ Objections to the Requests for Admissions, Interrogatories
and Request for Production as well as positions of the parties and has concluded that the motion
to compel should be denied.
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.

Defendants have either

answered the requests, provided relevant documents, 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.

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Although we will not address each and every discovery request, we specifically note that
Defendants have correctly objected to interrogatories posed in which Plaintiff asks them to set
forth facts relied on to support various defenses or legal standards, such as deliberate
indifference, cruel and unusual punishment, or qualified immunity. See, e.g., Defendant DOC’s
Response to Interrogatories Nos. 4-8 (ECF No. 93-2 at 23-5.) It was also appropriate for the
DOC to object to Interrogatories and requests for admission in which Plaintiff sought
information about actions taken by Dr. Jin, who was not a DOC employee. In addition, any
requests for information concerning Plaintiff’s incarceration at SCI-Fayette (the subject of a
separate lawsuit brought by this same Plaintiff at C.A. 15-1593) is not relevant to this lawsuit
which concerns Plaintiff’s incarceration at FCI-Greene.
Defendant DOC has provided Plaintiff with documents that include menus and nutritional
information of the meals offered at SCI-Greene as well as answered interrogatory and request for
admission concerning soy content of those foods. We will sustain the objection to the request for
commissary records on the grounds that it is overly burdensome and not proportional to the
needs of the case. Plaintiff has been released from prison, the receipts are no longer in his file
but rather, are stored in an unorganized fashion in a warehouse. The DOC has provided evidence
concerning meals offered. As to Plaintiff’s argument that DOC should have preserved these
records in some electronic format because they were “on notice” of such allegations arising in
Kokinda v. Jin et al. C.A. 15-179, filed while Plaintiff was still incarcerated, we note that
Defendants were never served in that case because Plaintiff failed to pay the filing fee and the
case was accordingly closed.
As to Defendant Jin, we overrule Plaintiff’s objection to his directing plaintiff to his
medical records in answering interrogatories. Such a response is well within Fed. R. Civ. P.
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33(d). In addition, we sustain Defendant Jin’s objection to requests for production of documents
which were not in his possession but rather in the possession of co-defendant DOC.
We will decline to impose monetary sanctions on Defendants or their counsel as there are
no grounds for such remedy. For these reasons, the Motion to Compel is denied.
Finally, we note that Plaintiff alleges that Defendant’s herein “failed to murder” him,
(ECF No. 100 at 18), and are “compulsive liars.” (ECF No. 114 at 1). Plaintiff is again 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 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 ....”); 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 5th day of March, 2018, it is hereby ORDERED, ADJUDGED

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and DECEED that Plaintiff’s Motion to Compel (ECF No. 93) is DENIED. IT IS FURTHER
ORDERED THAT all deadlines set forth in our Amended Case Management Order (ECF No.
85) remain in full force and effect.

Dated: March 5, 2018

cc:

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

all registered users of CM-ECF

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