BENDER v. BERRIER et al

Filing 53

ORDER granting in part and denying in part 47 Motion for an order compelling Defendants to produce requested documents. Signed by Chief Magistrate Judge Maureen P. Kelly on 6/18/18. A copy of this order will be mailed this day, 6/18/18, to Plaintiff at his address of record. (ard)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHAWN BENDER,

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Plaintiff,
v.
FORMER MEDICAL SUPERVISOR/
DIRECTOR SUSAN BERRIER, UNIT
MANAGER MELINIE NAGGY, SGT.
MULROY, SUPERINTENDENT LANE,
Defendants.

Civil Action No. 17-406
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 47

ORDER
Presently before the Court is Plaintiff Shawn Bender’s Motion for an order compelling
Defendants Berrier, Naggy and Mulroy to produce requested documents. ECF No. 47. Also
before the Court is Defendants’ Response to the instant Motion. ECF No. 50.
In his Motion, Plaintiff asserts that Defendants have not produced documents relating to
four categories of documents: (1) an assault by another prisoner on February 11, 2018; (2)
Plaintiff’s sick call slips from 2010 to present; (3) a report and recommendation made by
Defendant Naggy via DC-46; and (4) Grievance No. 622983.
As this Court has recently explained:
Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as "any
nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case." …
Rule 37 provides the mechanism to compel discovery from a person or party who
refuses to provide discovery. The party moving to compel discovery under Rule
37 bears the initial burden of proving the relevance of the material requested. See
Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001) (citations
omitted). 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).
PEG Bandwidth PA, LLC v. Salsgiver, Inc., Civ. A. No. 16-178, 2017 U.S. Dist. LEXIS 108516,
at *3-4 (W.D. Pa. July 13, 2017).
A.

Documents related to February 11, 2018 assault

As to the first category of documents, concerning an assault by another prisoner on
February 11, 2018, Plaintiff asserts that he seeks these documents as evidence in support of his
claim for certain Defendants’ failure to protect Plaintiff from inmate-on-inmate violence. ECF
No. 47 at 3. Defendants assert that they object to this request because “the events of February
11, 2018 postdate Plaintiff’s Complaint, and to the extent he wishes to pursue a claim against
someone or allegedly sustaining injuries at the hands of another inmate, Defendants respectfully
submit that Plaintiff cannot do so through the instant litigation.” ECF No. 50 at 3.
Because the documents relate to an incident that occurred after the filing of the
Complaint, the Motion is denied as to this category of documents.
B.

Plaintiff’s sick call slips

As to the second category of documents sought, “the entirety of sick calls (complaints by
Plaintiff) to medical, from: 2010 to year 2018, to date,” ECF No. 47 at 3, Defendants represent
that they have provided Plaintiff with his medical records through April of 2018. ECF No. 50 at
3. Defendants do not specify whether the provided medical records contain the documents
Plaintiff requested, specifically, “his complaints not the responses by the medical staff and/or
Defendant Berrier.” ECF No. 47 at 4 (emphasis in original). To the extent the medical records
do not contain Plaintiff’s sick call slips/complaints, Defendant are ordered to produce them
within 14 days of the date of this Order.

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C.

Report and recommendation of Defendant Naggy via DC-46

Plaintiff also seeks an order to compel production of the report and recommendation
prepared by Defendant Naggy supplied in preparation for a “DC-46 vote.” ECF No. 47 at 3, 5.
Although neither party describes DC-46, it is a Department of Corrections form for annual
review of Restricted Release List (“RRL”) designation, referred to as a “vote sheet.” Johnson v.
Wetzel, Civ. A. No. 16-863, 2016 U.S. Dist. LEXIS 103074, at *3 (M.D. Pa. Aug. 5, 2016). On
this vote sheet, prison employees set forth an opinion as to whether a prisoner should remain on
the RRL. Id. Prisoners on the RRL will be held in restricted housing unless and until they are
taken off the RRL by the Secretary of the Department of Corrections. Id.
Defendants assert that they object “to the production of vote sheets as they are highly
confidential and may pose a risk to staff and/or inmates as well as jeopardize institutional
safety.” ECF No. 50 at 3. Plaintiff appears to believe that a vote sheet and an employee
recommendation are separate documents. They are not. Accordingly, this portion of the Motion
will be denied.
D.

Grievance No. 622983

Finally, in the fourth category of documents, Plaintiff seeks an order to compel
production of Grievance No. 622983. ECF No. 47 at 6. Defendants assert that the grievance
was not provided to Plaintiff because it was not authored by him. ECF No. 50 at 3. Plaintiff
does not describe the subject of this grievance, only that it is “direct impeachment evidence for
Defendant Mulroy who willfully violated Plaintiff’s medical rights.” Id. at 7. The Court finds
that Plaintiff has not carried his burden to prove the relevance of the grievance requested, thus
this portion of the Motion will be denied.

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AND NOW, this 18th day of June, 2018, Plaintiff’s Motion for an order compelling
Defendants Berrier, Naggy and Mulroy, ECF No. 47, is GRANTED in part and DENIED in part.
The Motion is granted insofar as Defendants are ordered to produce within 14 days of this date
any of Plaintiff’s sick call slips not contained in medical records already produced. In all other
respects, the Motion is denied.

BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

cc:

Shawn Bender
JK-7413
S.C.I. Fayette
50 Overlook Drive
LaBelle, PA 15450
All counsel of record via CM/ECF

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