SIMMONS v. GIMORE et al

Filing 60

ORDER denying 52 Motion to Compel; denying 53 Motion for Conference; denying 55 Motion to Compel. Signed by Magistrate Judge Richard A. Lanzillo on June 26, 2019. (jbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AUGUSTUS SIMMONS,
Plaintiff
vs.
R. GILMORE, ET AL.,
Defendants

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Case No. 2:17-cv-00996
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
OPINION AND ORDER ON
PLAINTIFF’S MOTIONS
TO COMPEL [ECF No. 52, ECF No. 55]
PLAINTIFF’S MOTION FOR
CONFERENCE [ECF No. 53]

Plaintiff Augustus Simmons, a prisoner in the custody of the Pennsylvania Department of
Corrections, has initiated the instant civil case against various Defendants. See ECF No. 4. The
incidents relevant to Simmons’ case are claimed to have taken place at the State Correctional
Institution at Forest.
Now pending before the Court is Simmons’ “Motion to Compel Discovery of Plaintiff’s
Second Request for Production of Documents in Civil Action No. 17-996.” ECF No. 55. For
the reasons that follow, the motion will be DENIED. 1 Simmons has not demonstrated that the
Defendants improperly withheld responsive materials. Furthermore, the Defendants have made a

Simmons has also filed two additional motions: a motion to compel discovery response (ECF No. 52) and a motion
for preliminary conference (ECF No. 53), both of which are DENIED. The motion to compel is denied as repetitive
of the motion to compel filed at ECF No. 55. The motion for preliminary conference is construed as a motion
requesting a settlement conference. Here, Simmons states that he “is interested in settling this matter and would like
a [sic] opportunity to communicate such with the defendants in a preliminary conference.” ECF No. 53, ¶ 1. The
motion is denied at this time. However, the Plaintiff is directed to send a detailed settlement proposal stating what
he believes would be necessary to resolve the remaining claims to Counsel for the Defendants. Upon receipt of the
Plaintiff’s proposal, Counsel for the Defendant is to notify the Court whether the Defendants will join in Plaintiff’s
request for a settlement conference.
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compelling showing that their responses balanced Simmons’ interest in receiving relevant,
responsive information with the Department’s interest in not needlessly disclosing sensitive
materials that implicate important institutional security interests, or otherwise responding more
fulsomely to discovery requests that seek information that is irrelevant to the claims in the case,
or which are unduly burdensome.
I.

Standard of Review – Motions to Compel
If a party believes in good faith that another party has failed to respond adequately or

appropriately to a discovery request, he may move for an order compelling disclosure or
discovery. Federal Rule of Civil Procedure 37(a)(1). The rule specifically permits a party to file
a motion to compel the production of documents. Fed. R. Civ. P. 37(a)(3)(iv). In this case,
Simmons is seeking to compel further responses to document requests that he has propounded to
the Department in support of his claims.
Rule 26(b), in turn, generally defines the scope of discovery permitted in a civil action,
and prescribes certain limits to that discovery. That rule provides as follows:
(b) Discovery Scope and Limits.
(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
this scope of discovery need not be admissible in evidence
to be discoverable.
Fed. R. Civ. P. 26(b)(1). Evidence is considered to be “relevant ‘if it has any tendency to make a
fact more or less probable that it would be without the evidence’ and ‘the fact is of consequence
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in determining the action.’” In re Suboxone (Buprenorphine Hydrochloride & Naloxone)
Antitrust Litig., 2016 WL 3519618, at *3 (E.D. Pa. June 28, 2016) (quoting Fed. R. Evid. 401).
Rulings regarding the proper scope of discovery, and the extent to which further discovery
responses may be compelled, are matters committed to the court’s judgment and discretion.
Robinson v. Folino, 2016 WL 4678340, at *2 (W.D. Pa. Sept. 7, 2016) (citation omitted); see
also Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). “This far-reaching
discretion extends to rulings by United States Magistrate Judges on discovery matters. In this
regard: District courts provide magistrate judges with particularly broad discretion in resolving
discovery disputes.” Cartagena v. Service Source, Inc., 328 F.R.D. 139, 143 (M.D. Pa. Sept. 6,
2018) (citing Farmers & Merchs. Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D.
572, 585 (D.N.J. 1997)).” 2
Although decisions relating to the scope of discovery rest with the Court’s discretion, that
discretion is nevertheless limited by the scope of Rule 26 itself, which reaches only
“nonprivileged matter that is relevant to any party’s claim or defense.” Accordingly, “[t]he
Court’s discretion in ruling on discovery issues is therefore restricted to valid claims of relevance
and privilege.” Robinson, 2016 WL 4678340, at *2 (citing Jackson v. Beard, 2014 WL
3868228, at *5 (M.D. Pa. Aug. 6, 2014) (“[a]lthough the scope of relevance in discovery is far

“District courts provide magistrate judges with particularly broad discretion in resolving discovery disputes. See
Farmers & Merchs. Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585 (D.N.J. 1997). When a
magistrate judge’s decision involves a discretionary [discovery] matter ..., “courts in this district have determined
that the clearly erroneous standard implicitly becomes an abuse of discretion standard.” Saldi v. Paul Revere Life
Ins. Co., 224 F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United States, 943 F. Supp. 501, 502 (E.D.
Pa. 1996)). Under that standard, a magistrate judge’s discovery ruling “is entitled to great deference and is
reversible only for abuse of discretion.” Kresefky v. Panasonic Commc’ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.
1996); see also Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y. 1999) (holding that
discovery rulings are reviewed under abuse of discretion standard rather than de novo standard); EEOC v. Mr. Gold,
Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a magistrate judge's resolution of discovery disputes
deserves substantial deference and should be reversed only if there is an abuse of discretion).” Halsey v. Pfeiffer,
2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).

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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”)). See
also Mercaldo v. Wetzel, 2016 WL 5851958, at *4 (M.D. Pa. Oct. 6, 2016); Smith v. Rogers,
2017 WL 544598 (W.D. Pa. Feb. 9, 2017).
Simmons, as the moving party, “bears the initial burden of showing the relevance of the
requested information.” Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001).
Once that burden is satisfied, the party resisting the discovery has the burden to establish that the
discovery being sought is not relevant or is otherwise inappropriate. Robinson, 2016 WL
4678340, at *2. The Court will review the disputed requests for production in turn.
II.

Items Requested for Production
Simmons seeks the following discovery through the productions of documents from the

Defendants:
a.

Information regarding inmate Dwayne Watts, including that inmate’s security file,
reports, investigations, admissions and the reasons for that inmate’s placement in
the STGMU 3;

b.

Copies of the Department’s Security Facility Policy, Policy 6.3.1; and Department
Policy 6.5.1;

c.

Investigatory reports regarding certain grievances;

d.

Medical reports;

c.

Psychiatric examination reports;

Strategic Threat Group Management Unit. See, e.g., Enoch v. Perry, 2019 WL 2393783, *4 (W.D. Pa. June 6,
2019).

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d.

Various prison records, including “X17 reports,” summaries, block cards, daily
reports, and incident reports from 2016-2017 while Plaintiff was at SCI-Greene;

e.

Prison records such as DC-141 and DC-121 summary investigation reports;

f.

In-cell video of FB7 cell at SCI-Greene while the Plaintiff was housed there, as
well as video of cell FB2;

g.

Reports of abuse made against various Department employees;

h.

Restricted Release Annual Review sheets;

i.

Visitor logs from the RHU from 2012 to 2019;

j.

The complete security records from 2009 to 2018;

k.

Video evidence related to Simmons’ misconduct B437660;

l.

The job description and duties for the Psychiatric Assistant employees within the
Department;

m.

A “clear version” of Corrections Officer Brooks’ account of events via an
affidavit.

To summarize then, Simmons seeks production of the following types of information:
information concerning other inmates; copies of Departmental Policies and internal reports;
medical and mental health records; and an affidavit from a nonparty. The Defendants have
lodged several objections to producing these documents. See generally ECF No.55-2. The
Court finds the Defendants’ objections to be well-taken and will deny Simmons’ motion to
compel.
III.

Discussion
A hearing on the Plaintiff’s motion was held on June 25, 2019. The Court resolves these

discovery disputes as follows:

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Item requested by
Plaintiff for
production
Security file,
investigations,
admissions, and
reasons for placement
in the STGMU of
inmate Dwayne
Watts.

Nature of
Defendants’
objection
Relevance. Plaintiff
seeks prohibited
information on other
inmates, seeks
confidential
information that
could put the safety
and security of the
prison in jeopardy

Plaintiff’s
Reply/Argument

Ruling

Watts has signed a
declaration to testify
as a witness and
supply supporting
facts for Plaintiff’s
case, Watts records
will show the
difference between an
active gang member
(Watts) and an
inactive gang
member (Simmons,
since August, 2016);
Plaintiff contends that
the Defendants
opened the door to
allow him to review
any security filings
by claiming he is a
member/leader of a
gang.

Department Policies
6.3.1 (Facility
Security) and 6.5.1
(Security Level S
Housing Unit Policy)

Plaintiff seeks
confidential
information that
could put the safety
and security of the
prison in jeopardy.

Without this
argument Plaintiff
will be unable to
build an adequate and
fair argument
pertaining to staff
misconduct.

Grievance
Investigation Reports
– independent
investigation reports,
notes completed by
staff

The request for
production is vague,
the term
“investigation
reports” is undefined;
Defendants provided
Plaintiff with copies
of the grievance
records

Defendants are
playing “word
games.”

The Motion to
compel is DENIED.
The information
concerning other
inmates is prohibited
per DOC policy. See,
e.g., Sloan v. Murray,
2013 WL 5551162, at
*4 (M.D. Pa. Oct. 8,
2013) (denying
motion to compel
grievance responses
that concerned other
inmates, citing DOC
policy prohibiting
inmates from
receiving information
about one another);
Torres v. Harris,
2019 WL 265804, *1
(M.D. Pa. Jan. 18,
2019).
The motion to
compel is DENIED.
This information is
not discoverable. See
Rosa-Diaz v. Harry,
2018 WL 6322967
(M.D. Pa. Dec. 4,
2018); Coit v.
Garman, 2018 WL
3818853, *2 (M.D.
Pa. Aug. 10, 2018).
The Motion to
Compel production of
this material is
DENIED as MOOT.
Counsel for the
Defendants has
indicated he will
contact the prison in
an attempt to secure
any other information

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Item requested by
Plaintiff for
production

Nature of
Defendants’
objection

Plaintiff’s
Reply/Argument

Plaintiff’s medical,
dental, and
psychiatric/mental
health records.

The request for
production is vague,
overbroad, unduly
burdensome, not
proportional to the
needs of this case;
relevancy, Plaintiff
seeks confidential
information that
could put the safety
and security of the
prison in jeopardy;
inmates are not privy
to mental health
records for reasons of
security and to ensure
that programming
and treatment are not
compromised.

The records are
relevant because
Plaintiff is pursuing a
claim against medical
staff and is
attempting to prove
personal damage as a
result of his
confinement in the
RHU.

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Ruling
relating to the
Grievance at issue.
In the event there is
additional
information available,
it will be forwarded
to the Plaintiff.
The Motion to
Compel is DENIED.
Counsel for the
Defendants stated
that the Plaintiff’s
medical records have
been provided to him.
As to mental health
records specifically,
the Court agrees that
the security concerns
related to the
production of any
mental health records
are justified. See
Carter v. Baumcratz,
2019 WL 652322, *2
(W.D. Pa. Feb. 15,
2019) (citing Banks v.
Beard, 2013 WL
3773837, at *3 (M.D.
Pa. July 17, 2013)
(“With respect to the
mental health
records, were they
made available to
inmates or the public,
DOC professionals
would tend to refrain
from entering candid
opinions and
evaluations.
Consequently,
decision-makers
would not have the
benefit of honest

Item requested by
Plaintiff for
production

Nature of
Defendants’
objection

X17 Reports,
summary, block
cards, daily reports,
incident reports, yard,
etc., from 2016 to
2017 while Plaintiff
was at SCI -Greene

Plaintiff’s requested
documents are not
relevant. Further, the
Defendants have
provided these
documents to the
Plaintiff for 2017.

DC-141, B937660,
DC-121, summary of
investigation and
report by correctional
supervisor

Plaintiff’s
Reply/Argument

Defendants maintain
that this request is
vague. They do not
understand what is
being requested. In
an attempt to

Ruling

observations from
professionals in the
field. Moreover, if an
inmate knows how
DOC staff will
evaluate him and how
particular behaviors
are likely to be
interpreted, he is
capable of
manipulating the
resulting
determination, which
could lead to
inaccurate
assessments,
improper institutional
placements, and
possible premature
release from custody.
Based on the
foregoing, defendants
will not be compelled
to produce any
portion of plaintiff’s
mental health
record.”).
The requested
The Motion to
documents will reveal Compel is DENIED.
the contradictions,
The requested
misconducts, and
material from 2017
manipulations by
was provided to the
staff to abuse the
Plaintiff. The
Plaintiff as well as
material from 2016
their attempts to
predates his claims in
cover up the denial of this case and is not
his haircuts.
relevant.
Plaintiff contends that The motion to
the DC-121 is the
compel is DENIED.
summary of
As noted above,
investigations report
Counsel for the
made by staff and
Defendant will
gives more detail to
contact the prison to
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Item requested by
Plaintiff for
production

Video of cell FB7 at
SCI Greene on each
date Plaintiff was
kept in his cell

Video of cell FB2 at
SCI Greene on date
Plaintiff was kept in
his cell

All reports of abuse
made against c/p
Core, Gillespie,
Hennessey, Albonde,
Yourkin, Kennedy,
while at SCI-Green

Nature of
Defendants’
objection
respond, they
provided the Plaintiff
with the requested
misconduct report.

Plaintiff’s
Reply/Argument
the investigation done
by the supervising
staff to determine
credibility of the
misconduct report.
Plaintiff argues that
this is not a vague
request: video will
show that the staff
never turned the
lights off and P was
kept in his cell with
the lights on twentyfour hours a day,
seven days a week.

Ruling

determine if any
other information is
available regarding
the grievance in
question.
The request is vague,
The Court agrees.
overbroad, unduly
The Motion to
burdensome. It is not
Compel is DENIED.
proportional to the
The request does not
needs of the case and
specify a date and
is irrelevant.
time of the recording
requested. It is also
unduly burdensome
for the Defendants to
produced video
recordings of the
entirety of Plaintiff’s
time at SCI-Green.
This request is vague, Plaintiff argues that
The Court agrees.
overbroad, unduly
this is not a vague
The Motion to
burdensome, and not request: video will
Compel is DENIED.
proportional to the
show that the staff
The request does not
needs of the case.
never turned the
specify a date and
Further, it is
lights off and
time of the recording
irrelevant.
Plaintiff was kept in
requested. It is also
his cell with the lights unduly burdensome
on twenty-for hours a for the Defendants to
day, seven days. a
produced video
week.
recordings of the
entirety of Plaintiff’s
time at SCI-Green.
Defendants argue that Plaintiff argues that
The Motion to
this request is vague, this provides him
Compel is DENIED.
overbroad, unduly
with relevant
Prior bad acts are
burdensome, not
evidence of
inadmissible. See
proportional to the
Defendants’ prior bad Summers v. Wetzel,
burden and expense
acts that could
2018 WL 6112066,
on Defendants in
correlate with the
*7 (E.D. Pa. April 30,
searching for and
allegations of his
2015). Further,
producing the
claims.
because the requested
documents. They
information would
contend further that
contain information
material would
about other inmates,
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Item requested by
Plaintiff for
production

Nature of
Defendants’
objection
contain confidential
information about
other inmates to
which the Plaintiff is
not entitled

Plaintiff’s
Reply/Argument

Plaintiff’s restricted
annual review sheet
for SCI-Greene from
2016-2017

Defendants’ argue
that this request seeks
confidential
information, could
jeopardize safety and
security, seeks mental
health treatment
records, and is
irrelevant.

Plaintiff asks for
population records
and visitor logs from
2012 to 2019 while
he was in the RHU.

Defendants’ argue
that this request is
overbroad, vague,
and not proportional
to the needs of the
case. They also
contend it is
irrelevant.

Plaintiff requests full
and complete security
records from 2009 to
2018.

Defendants counter
that this request is
overbroad, vague, not
proportional,
relevance, and seeks
confidential
information that
could affect safety
and security.

Plaintiff argues that
the requested
information will
provide relevant
mental health
information that
“shall be credible
facts to support
Plaintiff’s mental
health claims of
deliberate
indifference”
Plaintiff
acknowledges that
request is overbroad,
but not burdensome
because he has only
had 1 visitor in 8
years. He claims to
need these records to
correlate mental
health, psychology
about his family
while he was in the
RHU
Plaintiff argues that
because the
Defendants accuse
him of gang
affiliation via
religious beliefs, the
security record must
be examined to
challenge that
accusation.

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Ruling
it is confidential and
not discoverable.
See, e.g., Allen v.
Eckard, 2019 WL
1099001, *3-4 (M.D.
Pa. March 8, 2019).
The Motion to
Compel is DENIED.
See, e.g., Allen v.
Eckard, 2019 WL
1099001, *4 (M.D.
Pa. March 8, 2019).

The Motion to
Compel is DENIED.
See, e.g., Rister v.
Lamas, 2012 WL
3758092, *4 (M.D.
Pa. Aug. 28., 2012).
The Court agrees that
his request for seven
years of visitor and
population logs is
unduly burdensome.
The Motion to
Compel is DENIED.
Allowing Plaintiff
access to such
information would
obviously create a
substantial security
risk. See Bracey v.
Price, 2012 WL
849865, *3 (W.D. Pa.
March 13, 2012)
(citing Paluch v.

Item requested by
Plaintiff for
production

Nature of
Defendants’
objection

Video evidence of
misconduct charge
B937660

The Defendants
submit that no video
exists to comply with
this request.

Plaintiff asks for
documents relating to
PSA Chriovitti’s
duties, qualifications,
and employment
position/status.

Defendants contend
that this request is
irrelevant, not
proportional,
confidential
information which
could jeopardize
safety and security.

PSA (psychologist
secretary assistant)
duties, obligations,
and job descriptions

Relevancy, not
proportional,
confidential
information which
could jeopardize
safety and security

A clear version of c/o
Brooks account of

Defendants object to
this request as

Plaintiff’s
Reply/Argument

Ruling

Dawson, 2007 WL
4375937 (M.D. Pa.
Dec. 12, 2007).
Plaintiff argues that
The Motion to
the Video should
Compel is DENIED.
have been preserved. The Defendants
cannot produce what
does not exist.
Cooper v. Sherman,
2018 WL 5841752 *5
(M.D. Pa. Nov. 8,
2018); Cotton v.
Campbell, 2016 WL
2742386, *2 (D. Del.
May 10, 2016).
Plaintiff counters that The Motion to
the requested
Compel is DENIED.
documents are
Per DOC policy,
relevant to the lack of inmates are not
mental health
entitled to
treatment provided,
confidential
and that the
information of
information needed to Department
show mandated duty employees. See, e.g.,
and obligations of
Johnson v. Miskell,
this Defendant.
2017 WL 3701784,
*3 (M.D. Pa. Aug.
28, 2017).
Relevant to the lack
The Motion to
of mental health
Compel is DENIED.
treatment provided,
Per DOC policy,
information needed to inmates are not
show mandated duty entitled to
and obligations
confidential
information of
Department
employees. See, e.g.,
Johnson v. Miskell,
2017 WL 3701784,
*3 (M.D. Pa. Aug.
28, 2017).
Plaintiff maintains
The Motion to
that the misconduct
Compel is DENIED.
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Item requested by
Plaintiff for
production
events that took place
on B937660 via
affidavit

Nature of
Defendants’
objection
irrelevant, arguing
that the written
misconduct document
speaks for itself.

Plaintiff’s
Reply/Argument

Ruling

report is vague, and
only relies on
misconduct charges
for any real narrative
or text. He wants the
CO to state in writing
the events that he
witnessed.

The Defendants have
provided the Plaintiff
with the misconduct
report. A Department
employee cannot be
compelled to file an
affidavit.

As the Court explained to the Plaintiff at the hearing, he may propound written discovery
upon the Defendants’ requesting that they produce any evidence upon which they rely as support
for their position that he is engaged in gang activity or that his religion is a pretext for gang
activity or organization. Such discovery also may request that Defendants identify any person
with knowledge of facts relating to these subjects and that Defendants summarize the factual
knowledge of each person identified. Further, as was also explained to the Plaintiff, in opposing
any motion for summary judgment that may be filed in this case, he may file his own declaration,
which will be considered as evidence to the extent it is based upon his own personal knowledge.
See, e.g., Lee v. Warden C. Link, 2019 WL 2504075, *7 n.11 (E.D. Pa. June 13, 2019) (citing
Marten v. Burns, 2015 WL 1431079, *4-5 (W.D. Pa. March 27, 2015) (denying summary
judgment where plaintiff produced affidavits from fellow inmates, his own declaration,
defendants’ responses to requests for admission, and a letter plaintiff wrote to the superintendent
describing blind spots); Wilson v. Ebbert, 2019 WL 160349, *5 n.2 (M.D. Pa. April 16, 2019).
III.

Conclusion
In light of the foregoing the Plaintiff’s Motion to Compel [ECF No. 55] is DENIED.
So ordered.

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____________________________
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
Entered this 26th day of June, 2019.

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