Gard v. Dooley et al

Filing 178

ORDER denying 173 Motion for Discovery. Signed by US Magistrate Judge Veronica L. Duffy on 2/28/2017. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
REX GARD,

4:14-CV-04023-LLP
Plaintiff,

vs.
BOB DOOLEY, CHIEF WARDEN,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; SUSAN JACOBS,
ASSOCIATE WARDEN, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY;
MURIEL NAMINGA, LAUNDRY
SUPERVISOR, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY; ANDRA
GATES, SUPERVISOR, DOH,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; KELLY SWANSON,
SUPERVISOR, DOH, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY;
JENIFER BEMBOOM, CBM FOOD
SERVICE, INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY; JOHN
TREWIELLAR, CBM FOOD SERVICE,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; BARRY SCHROETER, CBM
FOOD SERVICE, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY; JENIFER
STANWICK, DEPUTY WARDEN,
INDIVIDUAL AND OFFICIAL CAPACITY;
REBECCA SCHEIFFER, ASSOCIATE
WARDEN, INDIVIDUAL AND OFFICIAL
CAPACITY; LELAND TJEERDSMA,
MAJOR, INDIVIDUAL AND OFFICIAL
CAPACITY; TRAVIS TJEERDSMA,
UNIT STAFF, INDIVIDUAL AND
OFFICIAL CAPACITY; TAMMY
DEJONG, UNIT STAFF, INDIVIDUAL
AND OFFICIAL CAPACITY; RANDY
STEVENS, PROPERTY OFFICER,

ORDER DENYING PLAINTIFF'S
MOTION TO COMPEL
DOCKET NO. 173

INDIVIDUAL AND OFFICIAL CAPACITY;
CORPORAL CROPPER, CORPORAL,
INDIVIDUAL AND OFFICIAL CAPACITY;
RANDY MILNE, CORRECTIONS
OFFICER, INDIVIDUAL AND OFFICIAL
CAPACITY; JESSICA LUKE, OFFICE
STAFF, DOH, INDIVIDUAL AND
OFFICIAL CAPACITY; DOC STAFF,
UNKNOWN AT THIS TIME, INDIVIDUAL
AND OFFICIAL CAPACITY; AND CBM
FOOD SERVICES EMPLOYEES,
UNKNOWN AT THIS TIME, INDIVIDUAL
AND OFFICIAL CAPACITY;
Defendants.

INTRODUCTION
This case is before the court on plaintiff Rex Gard's pro se amended
complaint alleging a claim pursuant to Title II of the Americans With
Disabilities Act (ADA), 42 U.S.C. § 12132. See Docket No. 55.1 Currently
pending is his motion for an order compelling defendants to provide certain
discovery. See Docket No. 173. Defendants oppose the motion. See Docket
No. 175. This matter has been referred to this magistrate judge for
determination pursuant to 28 U.S.C. § 636(b) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, district judge.
FACTS
Mr. Gard alleges he is an insulin-dependent diabetic. See Docket No. 55
at 2, 4. Although he never alleges this to be his disability for purposes of the
Mr. Gard originally asserted several other claims in his amended complaint,
but those claims were all dismissed on defendants' motion for summary
judgment. See Docket Nos. 134 & 149. The only remaining claim, Mr. Gard's
ADA claim, was not made a subject of defendants' motion for summary
judgment. Id.
1

2

ADA, the court assumes it to be. Mr. Gard alleges defendants have failed and
refused to provide him proper diabetic socks and a proper diabetic diet. Id. at
5-8, 9-12. He alleges the time set aside for him to visit the law library twice per
week is at the same time he must report for blood sugar checks and insulin
injections, so he misses out on the full time he could otherwise spend in the
law library. Id. at 13. He alleges his diabetes and medication require him to
urinate frequently. Id. at 12. He alleges defendants' policies that no visits to
the restroom are allowed during prisoner counts and visitation periods are a
hardship on him because of his need for frequent urination. Id. at 12-13.
Mr. Gard seeks injunctive relief requiring defendants "to comply with the
Americans with Disabilities Act" in unspecified ways, provide law library time
as necessary, proper meals, access to restrooms during all functions and
visitation, and to provide all [unspecified] programs and services as required by
the ADA and requiring defendants to provide the necessary staff to maintain all
programs and services that are scheduled and that plaintiff is entitled to. Id. at
23. Mr. Gard also seeks nominal and compensatory damages. Id. Finally, Mr.
Gard seeks an order withholding all federal funding from the South Dakota
Department of Corrections until such time as the SDDOC complies fully with
the ADA. Id. at 24. Mr. Gard requests punitive damages as well, but such
damages are not available under the ADA. Meagley v. City of Little Rock, 639
F.3d 384, 390 (8th Cir. 2011).
This current motion to compel is the second motion Mr. Gard has filed
concerning the same discovery requests. Mr. Gard served defendants with his
3

discovery requests on October 26, 2016. Although defendants requested an
extension of time to respond to these requests, Mr. Gard never informed
defendants whether he would grant an extension. He instead filed his first
motion to compel. See Docket No. 167.
The court denied Mr. Gard's first motion to compel for two procedural
reasons. First, Mr. Gard did not comply with the requirement of showing he
had made a good-faith effort to resolve the discovery dispute with defendants
before filing his motion to compel. See Docket No. 172. Second, Mr. Gard
raised new substantive objections to the defendants' responses in his reply
brief and did not file a copy of defendants' responses. Id. Because of this,
defendants had no opportunity to respond to the substantive objections and,
without having the defendants' responses before it, the court was unable to
evaluate whether defendants' responses were adequate. Id.
Mr. Gard then filed the now-pending motion to compel. See Docket
No. 173. He has again failed to file a certification that he conferred in good
faith with defendants about his substantive objections to defendants' discovery
responses. Id. He also again failed to provide the court with a copy of
defendants' responses. Id. The latter omission was cured by defendants—they
provided the court with their responses. See Docket No. 175-1.
DISCUSSION
A.

Good-Faith Certification

Federal Rule of Civil Procedure 37 provides in pertinent part as follows:

4

On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.
See FED. R. CIV. P. 37(a)(1). Similarly, this court’s local rules provide as follows:
A party filing a motion concerning a discovery dispute must file a
separate certification describing the good faith efforts of the parties
to resolve the dispute.
See DSD LR 37.1. Mr. Gard has not complied with either of these rules. He
never filed a separate certification of his good faith efforts to resolve this matter
without resort to a court motion, nor did he recite what efforts he made in the
body of his motion. See Docket No. 173.
One week after filing his motion to compel, Mr. Gard sent a letter
addressed to both the court and defendants' counsel. See Docket No. 174.
That document simply reiterated Mr. Gard's demands for the discovery as
initially requested. Id. This letter also does not satisfy the requirement of
conferring in good faith with opposing counsel before filing a discovery motion
as required by Rule 37 and Local Rule 37.1.
Nor is Mr. Gard's failure excusable. Although he is a lay person and is
representing himself, the court explained at length the requirement of
conferring in good faith with the other party to try to informally resolve
discovery disputes when the court ruled on Mr. Gard's first motion to compel.
See Docket No. 172 at 3-4. Mr. Gard had this information in his possession

5

prior to filing the instant motion to compel. Because Mr. Gard did not comply
with this prerequisite to filing a discovery motion, the court denies his motion.
B.

Mr. Gard's Motion Fails on the Merits
In an effort to move this case along, the court also addresses the merits

of Mr. Gard's motion. Although Mr. Gard served defendants with 21 requests
for the production of documents (see Docket No. 175-1), he outlines only 8
responses from defendants to which he objects. See Docket No. 173 at 2-4.
The court will address only those 8 objections.
The scope of discovery is set forth in Federal Rule of Civil Procedure 26:
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 out-weighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.
See FED. R. CIV. P. 26(b) (emphasis added).
When a party requests discovery and the opposing party objects to
producing the discovery, the burden is on the requesting party to first establish
the relevancy of the discovery requested.

E.E.O.C. v. Woodmen of the World

Life Ins. Society, 2007 WL 1217919 at *1 (D. Neb. March 15, 2007) (citing Hofer
v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). "Mere speculation
that information might be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of specificity, the information
6

they hope to obtain and its importance to their case." Id. (citing Cervantes v.
Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).
Once the requesting party has made a threshold showing of relevance,
the burden shifts to the party resisting discovery to show specific facts
demonstrating that the discovery is not relevant, or how it is overly broad,
burdensome, or oppressive. Penford Corp. v. National Union Fire Ins. Co., 265
F.R.D. 430, 433 (N.D. Iowa 2009); St. Paul Reinsurance Co. v. Commercial
Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). The articulation of
mere conclusory objections that something is Aoverly broad, burdensome, or
oppressive,@ is insufficient to carry the resisting party=s burdenBthat party must
make a specific showing of reasons why the relevant discovery should not be
had. Cincinnati Ins. Co. v. Fine Home Managers, Inc., 2010 WL 2990118, *1
(E.D. Mo. 2010); Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589,
593 (W.D.N.Y. 1996).
Several courts have determined that where the discovery requests are
relevant, the fact that answering them will be burdensome and expensive is not
in itself a reason for a court=s refusing to order discovery which is otherwise
appropriate. See In re Folding Carton Antitrust Litigation, 83 F.R.D. 260, 265
(N.D. Ill. 1979) (stating that A[b]ecause the interrogatories themselves are
relevant, the fact that answers to them will be burdensome and expensive >is
not in itself a reason for refusing to order discovery which is otherwise
appropriate= @); Alexander v. Parsons, 75 F.R.D. 536, 539 (W.D. Mich. 1977)
(stating that Athe mere fact discovery is burdensome . . . is not a sufficient
7

objection to such discovery, providing the information sought is relevant or
may lead to the discovery of admissible evidence@); and Burns, 164 F.R.D. at
593 (determining that the fact that answering interrogatories will require the
objecting party to expend considerable time, effort, and expense consulting,
reviewing, and analyzing huge volumes of documents and information is an
insufficient basis for an objection). Moreover, if discovery requests are
relevant, the fact that they involve work, which may be time consuming, is not
sufficient to render them objectionable. See United States v. Nysco Labs., Inc.,
26 F.R.D. 159, 161-62 (E.D.N.Y. 1960)and Rogers v. Tri-State Materials Corp.,
51 F.R.D. 234, 245 (N.D. W. Va. 1970) (stating that A[i]nterrogatories, otherwise
relevant, are not objectionable and oppressive simply on grounds [that] they
may cause the answering party work, research and expense@). The court may
limit the frequency and extent of discovery. See FED. R. CIV. P. 26(b)(2); see
also Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003)
(AThe rule vests the district court with discretion to limit discovery if it
determines, inter alia, the burden or expense of the proposed discovery
outweighs its likely benefit.@)
1.

ADA Law

In order to gauge whether Mr. Gard has met his burden to show the
relevance of his discovery requests, it is necessary to understand some basic
law regarding his sole remaining claim under Title II of the ADA. Title II of the
ADA prohibits “public entities” from excluding "qualified" disabled persons from
programs, activities, or services, or otherwise discriminating against disabled
8

persons. See 42 U.S.C. § 12132.2 A "qualified individual with a disability"
"means an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids
and services, meets the essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public
entity." See 42 U.S.C. § 12131(2).
The ADA defines "disability" to include any "physical or mental
impairment that substantially limits one or more major life activities."
Richards v. Minnesota, 2016 WL 7007487 *5 (D. Minn. Nov. 29, 2016). The
regulations promulgated by the Equal Employment Opportunity Commission
(EEOC) define "physical or mental impairment" to include "diabetes." Id. (citing
28 C.F.R. § 35.104). Major life activities include eating and the operation of the
digestive system. Id. (citing 42 U.S.C. § 12102(2)). Thus, even under the
EEOC regulations, one who has diabetes is not per se disabled. Instead, one
with diabetes has a physical or mental impairment. One would still need to
show that impairment substantially limits a major life activity.
The Eighth Circuit considers the EEOC's regulations interpreting the
ADA "instructive," but not binding. Gorman v. Bartch, 152 F.3d 907, 913 (8th

Section 12132 provides: “Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such
entity.” See 42 U.S.C. § 12132.
2

9

Cir. 1998).3 Numerous courts have held that diabetes, even when it requires
medication and dietary restrictions, is not necessarily a disability under the
ADA. See Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 223-24 (5th Cir.
2011) (collecting cases); Carreras v. Sajo, Carcia & Partners, 596 F.3d 25, 34
(1st Cir. 2010); Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1156 (11th
Cir. 2005); Montalvo v. Lamy, 139 F. Supp. 3d 597, 611 (W.D.N.Y. 2015).
In Sutton v. United Air Lines, Inc., 527 U.S. 471, 483-84 (1999), the
Court, in dicta, rejected the idea that diabetes was a disability where the
condition could be controlled by monitoring one's blood sugar level and
administering insulin. When diabetes is properly managed, the Court noted it
did not substantially limit one's major life activities. Id. However, Congress
specifically rejected the Court's interpretation of the ADA in Sutton and Toyota4
when it passed the 2008 ADA Amendments Act (ADAAA), which legislatively
In Federal Exp. Corp. v. Holowecki, 552 U.S. 389, 397 (2008), the court said
this about the EEOC's regulation interpreting the word "charge" under the Age
Discrimination in Employment Act: "we defer to an agency's reasonable
interpretations of the statute when it issues regulations in the first instance,"
and "the agency is entitled to further deference when it adopts a reasonable
interpretation of regulations it has put in force. . . .we accept the agency's
position unless it is plainly erroneous or inconsistent with the regulation."
(punctuation altered). However, in the subsequent case of Young v. United
Parcel Serv., Inc., 575 U.S. ___, 135 S. Ct. 1338, 1351-52 (2015), the Court
declined to give "special or controlling weight" to an EEOC guideline concerning
pregnancy-related disability because the timing, consistency and thoroughness
of the EEOC's consideration of the issue did not invoke the Court's confidence;
in particular, the Court was concerned that the guideline reversed—without
explanation—a position the government had long advocated for. The Court
concluded it could not "rely significantly" on the EEOC guideline. Id. at 1352.
The Eighth Circuit has described the question of how much deference to give
an EEOC regulation defining "disability" an "open question." Fenney v. Dakota,
Minnesota, & Eastern R. Co., 327 F.3d 707, 713-14 (8th Cir. 2003).
3

4

Toyota Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
10

overturned the Supreme Court’s previous decisions in Sutton and Toyota. See
ADAAA of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (expressly
overturning Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002); and
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)).
Congress found the Court’s decisions to be Ainconsistent with
congressional intent, by expressing too high a standard,@ for ADA plaintiffs to
meet. ADAAA § 2(a)(8). Congress declared that the holdings in Toyota, Sutton,
and other cases Anarrowed the broad scope of protection intended to be
afforded by the ADA, thus eliminating protection for many individuals whom
Congress intended to protect.@ Id. § 2(a)(4). Congress specifically instructed
the EEOC to modify its regulations concerning the definitions of "substantially
limits a major life activity" and "disability," the two issues interpreted by the
Court in Sutton and Toyota. See Morriss v. BNSF Ry. Co., 817 F.3d 1104,
1110-11 (8th Cir. 2016). However, Congress did not alter the definition of
"physical impairment" and the EEOC regulation concerning this term remained
the same as before the enactment of the ADAAA. Morriss, 817 F.3d at 1111.
A “public entity” under Title II of the ADA is defined in part as “any State
or local government” and “any department, agency, special purpose district, or
other instrumentality of a State or States or local government.”5 See 42 U.S.C.
§ 12131(1)(A) and (B). Although a state and any department of a state are
“public entities” under Title II of the ADA (see Klingler v. Director, Dept. of
The other part of the definition of “public entity,” not relevant here, is “the
National Railroad Passenger Corporation, and any commuter authority.” See
42 U.S.C. § 12131(1)(C).
5

11

Revenue, 433 F.3d 1078, 1080 (8th Cir. 2006)), defendants in their individual
capacities do not constitute “public entities” subject to suit under Title II of the
ADA.
Congress’ designation of liability for “public entities” under Title II of the
ADA necessarily implies that there is no liability for individuals under that
statute. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir.
1999) (en banc) (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S.
11, 19 (1979)). But, a plaintiff may assert a Title II claim for injunctive relief
against a state employee in his or her official capacity. The Eleventh
Amendment does not bar the granting of injunctive relief. Missouri Child Care
Assn. v. Cross, 294 F.3d 1034, 1037 (8th Cir. 2002); Bradley v. Arkansas Dept.
of Educ., 189 F.3d 745, 753 (8th Cir. 1999), rev’d in part, Jim C. v. Arkansas
Dept. of Educ., 235 F.3d 1079 (8th Cir. 2000).
To state a prima facie claim under Title II of the ADA, a plaintiff must
show (1) he is a qualified individual with a disability, (2) he was denied the
benefits of a public entity's service or program, or otherwise discriminated
against; and (3) the denial or discrimination was based on his disability.
Folkerts v. City of Waverly, Iowa, 707 F.3d 975, 983 (8th Cir. 2013); Randolph
v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). Once a plaintiff has
demonstrated a prima facie case, defendants may assert an affirmative defense
that the requested accommodation would be an undue burden. Mason v.
Correctional Medical Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009); Randolph,
170 F.3d at 858 (citing Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)).
12

"Terms like 'reasonable' and 'undue' are relative to circumstances, and the
circumstances of a prison are different from those of a school, an office, or a
factory . . . " Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 487 (7th
Cir. 1997), abrogated on other grounds, Erickson v. Bd. of Governors of State
Colleges, 207 F.3d 945 (7th Cir. 2000). In the prison context, whether the
requested accommodation poses a safety or security concern is relevant to the
undue burden inquiry. Randolph, 170 F.3d at 858 (citing Duffy v. Riveland, 98
F.3d 447, 456 (9th Cir. 1996)); Onishea v. Hopper, 171 F.3d 1289, 1300 (11th
Cir. 1999) (en banc). Cost is also a legitimate penological concern. Onishea,
171 F.3d at 1300. In general, although the Turner6 analysis does not supplant
the ADA statutory analysis, the Turner legitimate penological factors come into
play in determining whether the accommodation is reasonable or an undue
burden. Id.
Defendant CBM Food Services may not be a "public entity" as defined by
Title II of the ADA. See Johnson v. Neiman, 504 Fed. Appx. 543 *2 (8th Cir.
May 6, 2013) (per curiam) (citing Edison v. Douberly, 604 F.3d 1307, 1310
(11th Cir. 2010)); Dinkins v. Correctional Medical Services, 743 F.3d at 633,
Turner v. Safley, 482 U.S. 78 (1987). Turner outlines four factors to
determine whether the prison policy or regulation is reasonably related to a
legitimate penological interest: (1) is there a valid rational connection between
the regulation and the governmental interest justifying it; (2) is there an
alternative means available to the inmate to exercise the right; (3) would the
accommodation have a significant ripple effect on the guards, other inmates,
and prison resources; and (4) is there an alternative that fully accommodates
the prisoner at de minimis cost to valid penological interests. Id. at 90-91.
6

13

634-35 (8th Cir. 2014) (per curiam). Neither party has briefed this issue to the
court, but the Second and Eleventh Circuits have issued decisions cited
favorably by the Eighth Circuit holding that even when a private company
contracts with a government to perform traditional and essential governmental
functions, it remains a private company and not a "public entity" under Title II
of the ADA. Edison, 604 F.3d at 1309-10 (citing Green v. New York, 465 F.3d
65, 79 (2d Cir. 2006)). Numerous district courts in the Eighth Circuit have so
held. See, e.g. Hahn v. Linn County, 191 F. Supp. 2d 1051, 1055 n.2 (N.D.
Iowa 2000); O'Connor v. Metro Ride, Inc., 87 F. Supp. 2d 894, 900 (D. Minn.
2000).
Disabled individuals are entitled to receive "meaningful access" to "a
public entity's services, not merely limited participation." Loye v. County of
Dakota, 625 F.3d 494, 496 (8th Cir. 2010) (quoting Randolph, 170 F.3d at
858). An ADA plaintiff must prove the agency's discrimination was intentional
in order to obtain compensatory damages; no showing of intent is necessary for
injunctive or declaratory relief. Meagley, 639 F.3d at 389. Discriminatory
intent is demonstrated by showing the agency was deliberately indifferent "to
the strong likelihood that . . . its questioned policies will likely result in a
violation of federally protected rights." Id. (quoting Barber ex rel. Barber v.
Colo. Dep't of Revenue, 562 F.3d 1222, 1228-29 (10th Cir. 2009)). As indicated
above, punitive damages are not available under Title II of the ADA. Meagley,
639 F.3d at 390.

14

Claims based on medical treatment decisions, including claims that a
defendant failed to properly diagnose or treat a condition, cannot form the
basis of an ADA claim under Title II. Dinkins 743 F.3d at 634; Burger v.
Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (per curiam). However, claims
that meals, medical services, and adequate housing were denied based on a
plaintiff’s disability can form the basis for viable Title II ADA claims. Dinkins,
743 F.3d at 634-35 (citing Pa. Dept. of Corr. V. Yeskey, 524 U.S. 206, 210
(1998); Jaros v. Ill. Dept. of Corr., 684 F.3d 667, 672 (7th Cir. 2012)).
2.

Request for Production No. 27

Mr. Gard's request for production (RFP) number 2 states as follows:
Any and all medical notes, e-mails, memos, informationals,
between medical staff and unit staff or security staff, which refer to
Plaintiff, Rex Gard.
Defendants object to RFP No. 2 because they previously provided to
Mr. Gard 2,912 pages of double-sided copies consisting of the entirety of
Mr. Gard's medical records. See Docket No. 175-1 at 5. Furthermore,
defendants object on the basis that Mr. Gard may, upon request, and has in
the past, reviewed his medical records. Id. at 6. Therefore, defendants argue
Mr. Gard has confused the record by renumbering his requests for
documents in his currently-pending motion to compel. By examining the
original requests, see Docket No. 170-1, and comparing it with defendants'
responses thereto, see Docket No. 175-1, and then comparing those two
documents to the wording of the discovery request discussed in Mr. Gard's
current motion to compel, see Docket No. 173 at 2-4, the court discerned the
true original number of each discovery request. Thus, the request Mr. Gard
identifies as "1" in his motion, is really Request for Production of Documents
No. 2. Compare Docket No. 173 at p. 2, with Docket No. 170-1 at p. 1 and
Docket No. 175-1 at p. 5. To avoid further confusion, the court addresses each
of the 8 discovery requests at issue herein by their original request number as
propounded in Mr. Gard's request for the discovery of documents.
7

15

Mr. Gard's request is cumulative, duplicative, unduly burdensome and
unnecessary. Id. Furthermore, defendants assert the burden and expense of
providing these requested documents outweighs any marginal additional
benefit to be gained by Mr. Gard. Id.
Mr. Gard's only defense of this request is his assertion that the request
will show that staff are aware of the violations of the ADA and do nothing to
stop the violations or improve their implementation. Mr. Gard's request is not
limited to "notes, e-mails, memos, informationals" dealing only with the ADA.
The request is also not limited to only his ADA claims herein—the issues of
socks, visitation, law library use, counts, and his diet. For that reason, his
request overbroad. Furthermore, Mr. Gard does not recite whether the
voluminous nearly 6,000 pages of medical records he has already received from
defendants includes the "notes, e-mails, memos, informationals" requested in
RFP No. 2.
The court concludes Mr. Gard has failed to demonstrate the relevance of
this discovery request as is his initial burden. For that reason, the court
denies Mr. Gard's motion to compel as to RFP No. 2.
3.

Request for Production No. 3

Mr. Gard's RFP No. 3 states as follows:
Any and all policies or rules, written or customary, formal or
informal, public or private, that refer to the ADA or that contain
reference to, or make exceptions to the rules, for the
implementation of, or compliance with the ADA, from January 1,
2010, to present.

16

Defendants did not object to RFP No. 3. Instead, they responded that, to
counsel's knowledge, there are no documents responsive to this request. See
Docket No. 175-1 at 6. The court will not order defendants to produce
documents that do not exist. Mr. Gard's motion to compel as to RFP No. 3 is
therefore denied.
4.

Request for Production of Documents No. 4

Mr. Gard's RFP No. 4 states as follows:
Any and all notes, informationals, memos, e-mails, or
communications between CBM Food Services employees, the CBM
Dietician, and medical staff, DOC Security Staff, and DOC Unit
Staff and Administration, that refer to Rex Gard, or diabetic diets,
from January 1, 2010, to present.
Defendants object to RFP No. 4 because, among other reasons, it is not
relevant. See Docket No. 175-1 at 7. Mr. Gard offers no rationale at all in
support of this request. See Docket No. 173 at 2. Because he does not
address this request, Mr. Gard has not carried his burden to show the
threshold relevance necessary to entitle him to the discovery. Furthermore,
given the above law regarding the probability that CBM is not properly named
as a defendant under Title II of the ADA, the court denies Mr. Gard's motion to
compel as to RFP No. 4.
5.

Request for Production of Documents No. 5

Mr. Gard's RFP No. 5 states as follows:
A copy of all CBM Food Service menus that contain diabetic menus
from January 1, 2010, to present.
Defendants object to RFP No. 5 because producing the documents would be
unduly burdensome, oppressive, and would produce too much interference
17

with prison administration. See Docket No. 175-1 at 8. Mr. Gard states he
wants the requested menus to show he was "prescribed a diabetic diet, but
none was provided for him." See Docket No. 173.
Neither party illuminates this issue for the court. How often are CBM
menus generated: daily? weekly? monthly? Also, does CBM generate separate
menus for specialty diets among inmates such as diabetic, kosher, halal,
vegetarian, heart-healthy? Even if such menus exist, how would they show
that Mr. Gard never received food consistent with a diabetes diagnosis?
Mr. Gard has not shown the relevancy of the documents he requests. Since
that is the first stage of the analysis, and the analysis fails at that stage, the
court does not rule on the obviously conclusory nature of defendants'
objection. The motion to compel RFP No. 5 is denied.
6.

Request for Production of Documents No. 6

Mr. Gard's RFP No. 6 states as follows:
A copy of the work schedule that details the CBM Food Services
employee(s) that were/are responsible for the preparation and
service of any and all diabetic meals, from January 1, 2010, to
present.8
Defendants object to RFP No. 6 because, among other reasons, it is not
relevant. See Docket No. 175-1 at 8. Mr. Gard argues that production of these
work schedules will show that the diabetic menu was never implemented and

The language of the original RFP (see Docket No. 170-1 at 2), is different from
the language Mr. Gard represents in his motion to compel (see Docket No. 173
at 3). The court recites the original language of the discovery request because
that was what was served on defendants and it is that request to which
defendants' response is made.
8

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that CBM never implemented the ADA. See Docket No. 173 at 3. Given the
above law regarding the probability that CBM is not properly named as a
defendant under Title II of the ADA, the court agrees that Mr. Gard has not
articulated the necessary threshold relevance to grant this discovery.
Accordingly, the court denies Mr. Gard's motion to compel as to RFP No. 6.
7.

Request for Production No. 7

Mr. Gard's RFP No. 7 states as follows:
A copy of any and all policies and procedures and unit rules that
concern recreation for disabled inmates, along with a recreation
schedule (availability) for disabled inmates, from January 1, 2010,
to present.9
Defendants did not object to RFP No. 7. Instead, they responded that there are
no documents responsive to this request that have been in existence since
October, 2013. See Docket No. 175-1 at 8. Defendants provided the policy
which existed prior to October, 2013. Id. The court cannot order defendants
to produce documents that do not exist nor to create documents where none
exist. Accordingly, the court denies Mr. Gard's RFP No. 7.
8.

Request for the Production of Documents No. 10

Mr. Gard's RFP No. 10 states as follows:
A copy of any and all policies or rules written or customary, that
concern restroom use for inmates, as it applies to religious
functions, inmate visit room, inmate library, inmate living areas
including count time, and the medical waiting room.

Again, Mr. Gard in his motion to compel does not recite the original language
of the RFP. The court analyzes the issue based on the language of the actual
RFP that Mr. Gard served on defendants.
9

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Defendants identified three documents dealing with policies as to inmate visits
and inmate counts and provided these to Mr. Gard. See Docket Nos. 175-1 at
9, 173 at 3. Defendants also indicated there are various other written policies
having to do with inmate movements and count procedures which are designed
to ensure round the clock accountability for each inmate. See Docket No. 1751 at 9. These latter policies are designed to ensure security at the prison and
defendants refuse to produce them without a court order. Id.
Mr. Gard argues none of the documents he received address restroom
use by inmates. See Docket No. 173 at 3. Mr. Gard does not address
defendants' position that it would pose a security risk to disclose the additional
policies regarding inmate movements and inmate counts.
The court will not require disclosure of documents that potentially could
pose a security risk for the prison without some showing by Mr. Gard that such
documents are relevant—i.e. do the documents even address restroom use?—
and that there is no other way to obtain the discovery. Other methods of
discovery would likely give Mr. Gard the information he seeks. For example,
Mr. Gard could serve defendants with an interrogatory that would have to be
signed under oath. That interrogatory could ask defendants to describe their
policy for restroom use during visitation and count, the two areas identified by
Mr. Gard in his complaint. Presumably, merely stating whether an inmate will
or will not be allowed to use the restroom during these times would not cause
defendants to reveal confidential policies relative to prison security.

20

Because Mr. Gard never addresses defendants' asserted security reasons
for not providing the discovery, and because the court believes the discovery
can be obtained through other means that do not pose a security risk, the
motion to compel RFP No. 10 is denied.
9.

Request for the Production of Documents No. 20

Mr. Gard's RFP No. 20 states as follows:
A listing of all legal materials that concern the ADA, its
implementation or authority, and their whereabouts in the law
library.
Defendants did not object to this RFP. Instead, defendants responded that
there are no legal materials specifically addressing the ADA in the law library.
See Docket No. 175-1 at 13-14. Defendants note that additional legal authority
may be requested by inmates through the legal assistance attorney and
paralegal. Id. at 14. The court cannot order defendants to produce documents
that do not exist. Nor can the court order defendants, through a discovery
order, to stock materials in its law library that are not currently there.
Mr. Gard has his answer. There is nothing to compel. Accordingly, the court
denies Mr. Gard's motion to compel as to RFP No. 20.
CONCLUSION
Based on the foregoing facts, law and analysis, it is hereby
ORDERED that plaintiff Rex Gard's second motion to compel [Docket No.
173] is denied.

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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV.
P. 72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED February 28, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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