SIMMONS v. GIMORE et al

Filing 73

ORDER denying 65 Motion to Compel responses to interrogatories; denying 66 Motion to Compel first request for admission of Defendant Chiovitti; denying 67 Motion to Compel production of documents; denying 68 Motion to Appoint Counsel. Signed by United States Magistrate Judge Richard A. Lanzillo on August 21, 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

OMNIBUS ORDER ON PLAINTIFF'S
MOTIONS TO COMPEL; MOTION FOR
THE APPOINTMENT OF COUNSEL
ECF No. 65 (Motion to Compel responses to
interrogatories by Correctional Officer
Carter).
ECF No. 66 (Motion to Compel first request
for admission of Defendant Chiovitti)
ECF No. 67 (Motion to Compel production
of Documents)
ECF No. 68 (Motion for the Appointment of
Counsel)

Plaintiff Augustus Simmons (Simmons or Plaintiff), a prisoner in the custody of the
Pennsylvania Department of Corrections, has initiated the instant civil case against various
Defendants. See ECF No. 4. Now pending b~fore the Court are another round of discoveryrelated motions filed by the Plaintiff: a motion to compel answers to interrogatories posed to
Defendant Correctional Officer Carter (ECF No. 65); a motion to compel admissions by
Defendant Chiovitti (ECF No. 66); and a Motion to Compel the production of certain documents
(ECF No. 67). Simmons has also filed a Motion for the Appointment of Counsel. ECF No. 68.
For the reasons that follow, all of these motions will be DENIED. Simmons has not

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demonstrated that the Defendants improperly withheld responsive materials. Furthermore, the
Defendants have made a 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. He has also failed to
demonstrate the need for the appointment of counsel at this time.
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)(l). 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 tum, 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 otherwi~e 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.
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Fed. R. Civ. P. 26(b)(l). 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
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 ~lings 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'! Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D.
572,585 (D.N.J. 1997))." 1
Although decisions relating to the scope of discovery rest with the Court's discretion, that
discretion is nevertheless limited by the scop~ 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

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"District courts provide magistrate judges with particularly broad discretion in resolving discovery disputes. See
Farmers & Merchs. Nat'! Bankv. 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 Haus. 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 nova 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 ifthere is an abuse of discretion)." Halsey v. Pfeiffer,
2010WL3735702, *1 (D.N.J. Sept.17,2010).

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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
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. Phi/a. Haus. 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 tum.
II.

Motion to Compel Answers to Interrogatories (ECF No. 65)
Simmons asks the Court to compel Correctional Officer Carter to answer three

interrogatories to which Carter has objected. See ECF No. 72 at 1. First, Simmons asks Carter
"What specifically is the procedure to [sic] recording daily activity on the units?" ECF No. 65 at
1. Carter objected to answering this query, maintaining that it was vague, overbroad, and not

proportional to the needs of the case. ECF No. 72 at 1. He further objects, noting that prison
personnel often deal with security measures as part of their "daily activity," and that such
measures are confidential and not discoverable. Id. The Court agrees that the Plaintiffs request
for a recap of "daily activity" on the unit is all of those things. Defendant Carter's objection is
sustained the Motion to Compel is denied.

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Next, Simmons asks Defendant Carter to "name all requests, activities, events, hearings,
and actions that would be deemed a recorded conduct or action when interacting with inmates."
ECF No. 65, p. 2. Defendant Carter objected to this inquiry, arguing that the request seeks
information about other inmates and therefore any response is privileges, confidential, and
implicates prison security and privacy concerns. ECF No. 72, p. 2. Providing information which
concerns other inmates to another inmate 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 Defendants' objection is sustained and the Motion to Compel is denied.
Finally, Simmons asks Defendant Carter to "name all inmates and their numbers that
were on F-unit at the time of the named events in the Civil Complaint." ECF No. 65, p. 2.
Simmons argues that he needs this information because such inmates may be potential witnesses.

Id. Defendant Carter objected, arguing that it would be unduly burdensome, indeed, almost
impossible to identify "all inmates" who were on the unit during the extended time period
covered by the allegation in the Complaint. ECF No. 72, p. 2. i Such broad identification of other
inmates is not properly discoverable in the context of this case. The Court agrees with the
Defendant. This request is overbroad and asks for information concerning the clCtivities of other
inmates, the relevancy of which, if any, is substantially outweighed by the burden of production,
confidentiality, and proportionality considerations. See Torres v. Harris, 2019 WL 265804, * 1
(M.D. Pa. Jan. 18, 2019). The objectionis sustained and the motion to compel this information
is denied.

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III.

Motion to Compel Requests for Admissions form Defendant Chiovitti (ECF No. 66)
Next, Simmons seeks an order compelling Defendant Chiovitti to produce certain

requested documents. Chiovitti has raised various objections to these requests. Upon review,
Simmons' requests are more appropriately characterized-as interrogatories than requests for
production of documents.
Simmons challenges Chiovitti's responses to two questions: numbers 5 and 6. At
question 5, he asks Chiovitti whether the Defendant was "aware of the psychological injury
caused by long-term confinement in a cell that has a light on 24/7 with no switch?" ECF No. 66,
p. 1. Defendant Chiovitti objects to this inquiry, arguing that it is vague, overly broad, and not
relevant to the claim at issue herein, the alleged deliberate indifference to his mental health
needs. The Court agrees with the Defendant, particularly on relevance grounds. In this
litigation, Simmons has not raised a claim relating to his confinement. Instead, he brings claims
of deliberate indifference to his mental health needs under the Eighth Amendment and other
provisions of the United States Constitution. Therefore, the objection is sustained and the
Plaintiff's motion to compel is denied.
Defendant Chiovitti also objected to Simmons inquiry "would you report this kind of
psychological abuse if you witnessed an inmate in a cell with no lights on 24/7 for months at a
time without cause?" Id. at pp. 1-2. As there is no issue raised in this case regarding the
conditions of confinement, this query is irrelevant and the motion to compel its answer is denied.
IV.

Motion to Compel Plaintiff's Second Request for Production of Documents (ECF No. 67)
At ECF No. 67, Simmons has filed a motion seeking to compel responses to his second

request for production of documents. Defendants have indicated that they will provide (or have
already provided) many of the items Simmons requests. First, the Defendants will provide him

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with a copy of Staff Development and Training Manual 5.1.1 as Simmons has requested. ECF
No. 72, p. 3. Second, Defendants will provide Simmons with a copy of the 2017 Code of Ethics,
negating his request. Id.
Simmons requests part of Department of Corrections Policy 6.5.1. But this information is
confidential and this Court has so held. Thus, the motion to compel the production of this policy
is DENIED. This information is not discoverable. See Rosa-Diaz v. Harry, 2018 WL 6322967
(M.D. Pa. Dec. 4, 2018); Coitv. Garman, 2018 WL 3818853, *2 (M.D. Pa. Aug. 10, 2018).
Next, Simmons seeks production of Defendant Chiovitti's personnel records as well as
records of any grievances filed against her. ECF No. 67, p. 4. This information is not
discoverable because it is confidential, contains information about other inmates, and would
create a security risk for Defendant Chiovitti. See, e.g., Allen v. Eckard, 2019 WL 1099001, *34 (M.D. Pa. March 8, 2019). Thus, the Defendants' objection is sustained and the motion to
compel production of this information is denied.
Simmons next seeks production of emails from various individuals which may be related
to "Plaintiff referenced in relation to any events complaints, grievances, reports, allegations,
investigations, or misconduct." ECF No. 67, p. 3. Defendants object, saying that such a request
is "obviously overbroad," among other objections. ECF No. 72, p. 4. The Court agrees. This
request is significantly overbroad. And any such emails may contain information that is
irrelevant, beyond the scope of this litigation, and that creates a security risk to prison personnel
and/or other inmates. See Bracey v. Price, 2012 WL 849865, *3 (W.D. Pa. March 13, 2012)
(citing Paluch v. Dawson, 2007 WL 4375937 (M.D. Pa. Dec. 12, 2007). For those reason, the
objection is sustained and the motion to comp'el this information is denied.

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Lastly, Simmons asks for copies of his mental health records from "one-on-one meetings
[with] PSS Chiovitti conducted with Plaintiff while at SCI Greene." ECF No. 67, pp. 5-6. He
further explains that he does not want the records themselves, but only "logs, records, and
reviews that are filed and sent via inmate mail to prisoners." Id. at p. 5. Counsel for the
Defendants, after consultation with Defendant Chiovitti, has stated that no such "logs, records,
and reviews" exist and thus, none can be produced. Further, the Court notes that mental health
records, in any event, are confidential, pose a valid security risk, and not typically discoverable.

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 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 plaintiffs mental health
record."). Thus, the Defendants' objection to the production of this information is sustained and
the Motion to Compel is denied.
V.

Motion for the Appointment of Counsel (ECF No. 68).
Simmons has filed a Motion for the Appointment of Counsel. ECF No. 68. This is the

Plaintiffs second motion seeking the appointment of counsel. See ECF No. 39. Upon due
consideration, that motion is denied.
A.

Standard of Review

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In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the Third Circuit identified factors to be
considered by the district courts in exercising their discretion whether to "appoint" counsel
pursuant to 28 U.S.C. § 1915(d). These factors have been affirmed many times as the
appropriate bases for review. See, e.g., Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002).
"As a threshold matter, a district court must assess whether the claimant's case has some
arguable merit in fact and in law." Tabron at 155. The court should not appoint counsel unless
it appears that the claim has some merit. Id. Provided that this consideration is satisfied, the
court must then consider the following factors to determine whether to appoint counsel:
1.

the plaintiffs ability to present his or her own case;

2.

the difficulty of the particular legal issues;

3.

the degree to which factual investigation will be necessary and the ability of the
plaintiff to pursue investigation;

4.

the plaintiffs capacity to retain counsel on his or her own behalf;

5.

the extent to which a case is likely to tum on credibility determinations, and;

6.

whether the case will require testimony from expert witnesses.

Montgomery, at 499 (quoting Tabron at 155-157).
The Third Circuit has also recognized that there are significant practical restraints on the
district court's ability to "appoint" counsel, including: "the ever-growing number of prisoner
civil rights actions filed each year in the federal courts; the lack of funding to pay appointed
counsel; and the limited supply of competent lawyers who are willing to undertake such
representation without compensation." Tabron, 6 F.3d at 157. Additionally, there are many cases
in which district courts attempt to appoint counsel but find no attorney willing to accept the
appointment:

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[T]he frequent unwillingness of lawyers to accept appointment in
such cases is not only a function of the time pressures lawyers face
in trying to earn a living in an increasingly competitive filed, but
also by circulating knowledge of the indignities that some lawyers
have been subjected to by certain litigants, including verbal and
written abuse, excessive demands and complaints, and malpractice
suits. We trust the district judges will be sensitive to such problems
in making discretionary decision in the area.

Id. at 157 n. 7. The Tabron Court also recognized that volunteer lawyer time is extremely
valuable and a district court should not request counsel under§ 1915 indiscriminately:
Volunteer lawyer time is a precious commodity ... Because this resource is available in only
limited quantity, every assignment of a volunteer lawyer to an undeserving client deprives
society of a volunteer lawyer available for a deserving cause. We cannot afford that waste.

Id. at 157.
While this Court would undoubtedly benefit from having capable, experienced counsel
available to assist and advise all prisoners before they file suit and to represent all prisoner ·
plaintiffs who survive dismissal (under 28 U.S.C. § 1915(e) or for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure), there are simply not enough attorneys in
this District who are willing to undertake such representation. In addition to the factors
discussed by the Court of Appeals, this Court recognizes other factors that dissuade attorneys
,,

from representing prisoners. Simply interviewing a prisoner client requires a trip to a prison,
sometimes at a great distance from the lawyer's office, and frequently a long wait at the prison
until the prisoner can be produced for the interview.
The number of attorneys in this District who are available to volunteer to represent
prisoners is limited while the number of prisoners who request counsel is high. Moreover, the
Erie division of this District does not have a referral system in place, as does the Pittsburgh

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division, and few attorneys in the local Bar have expressed a willingness to handle these cases;
Therefore, this Court must carefully consider all the factors identified by the Court of Appeals as
well as any other considerations related to the specific case in exercising its discretion when
considering a motion for the "appointment" of counsel.

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B.

Analysis

In his pro se complaint, Plaintiff alleges claims of deliberate indifference in violation of
the Eighth Amendment, as well as claims under the Fourteenth Amendment. At this stage of the
litigation, it is too early to tell whether these claims have any merit. For purposes of this motion,
however, the Court will assume that Plaintiff's claims are potentially meritorious and address his
request pursuant to the six Tabron factors.
1.

Ability to Present His Case

The first factor - the plaintiffs ability to present his own case - weighs against
appointment of counsel. Plaintiff's submissions to the Court demonstrate that he is both literate
and articulate. He reads, writes, and understands English very well, as evidenced by his
numerous filings. His Complaint is handwritten in neat, legible script, demonstrates an
understanding of the basis for his claims, and cites the constitutional rights which he believes
have been violated. Although not a professional ·or expert in the law, his filings evidence a basic
understanding of the law and an ability to write cogently and coherently. Moreover, there is no
evidence that Simmons was not the person responsible for drafting the filings currently on the
docket.
As concerns the instant motions and as noted above, Simmons has filed numerous and
detailed motions relating to discovery disputes he has with the Defendants. Each of these filings
suggests that Simmons possesses the ability to present his own case, particularly at this stage in
the lit~gation. See Montgomery, 294 F.3d at 501 (identifying several factors to consider with
respect to a plaintiff's ability to present his case, including: "the plaintiffs education, literacy,
prior work experience, and prior litigation experience, along with a plaintiff's ability to

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understand English and the restraints placed upon a prisoner plaintiff by confinement."). There
is no indication from the quality of his filings to date that he will be unable to present his case.
2.

Difficulty of Legal Issues

In cases involving complicated issues, courts should be "more inclined to appoint
counsel." Tabron, 6 F.3d at 156. Although it is early in this litigation, Simmons's claims do not
appear to present any particularly difficult legal issues. Indeed, Simmons raises standard claims
within the context of prison litigation. The issues not necessarily complex. Consequently, the
second Tabron factor also weighs against appointment of counsel.
3.

Remaining Tabron Factors

Any concern on Simmons's part about the need for counsel to assist in discovery is
premature at this time in light of the pending motion to dismiss. Accordingly, his motion for
appointment of counsel will be denied, but without prejudice. Should future proceedings
demonstrate the need for counsel, the matter can be reconsidered, either sua sponte or upon a
motion properly filed. Further, the Court notes that practically every case that proceeds to
discovery involves a reasonable amount of factual investigation. See Tabron, 6 F.3d at 156-57.
On the other hand, it is not yet known whether the case is likely to tum on credibility
determinations. Id.
In light of the foregoing, the Court concludes that the Tabron factors weigh against the
appointment of counsel at this stage in the litigation. Plaintiffs Motion for Appointment of
Counsel (ECF No. 68) is therefore DENIED, without prejudice to reexamining this issue as the
litigation progresses.

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/
VI.

Conclusion

\

In light of the foregoing the Plaintiffs Motions to Compel (ECF Nos. 65, 66, and 67) are
DENIED. Plaintiffs Motion for the Appointment of Counsel (ECF No. 68) is also DENIED.
So ordered.

Entered this

sl-.2/

day of August, 2019.

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