Sisney v. Kaemingk et al

Filing 56

ORDER granting in part and denying in part 51 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 12/11/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES E. SISNEY,

4:15-CV-04069-LLP

Plaintiff,
vs.
DENNY KAEMINGK, IN HIS OFFICIAL
CAPACITY AS THE SOUTH DAKOTA
SECRETARY OF CORRECTIONS;
DARIN YOUNG, IN HIS OFFICIAL
CAPACITY AS THE WARDEN OF THE
SOUTH DAKOTA STATE
PENITENTIARY; SHARON REIMANN,
IN HER OFFICIAL CAPACITY AS AN
SDSP DESIGNATED MAILROOM
OFFICER; AND CRAIG MOUSEL, IN
HIS OFFICIAL CAPACITY AS AN SDSP
DESIGNATED PROPERTY OFFICER;

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL
DOCKET NO. 51

Defendants.

This matter is before the court on plaintiff Charles E. Sisney’s pro se
complaint pursuant to 42 U.S.C. § 1983. On October 19, 2015, Mr. Sisney
served defendants with discovery requests. Defendants then filed a motion
asking the court to enter a protection order so that defendants need not
respond to Mr. Sisney’s discovery requests. See Docket No. 41. The court
denied that motion on October 30, 2015. See Docket No. 43.
After not receiving defendants’ responses, Mr. Sisney drafted a letter to
defense counsel attempting to confer in good faith about the discovery dispute.
Mr. Sisney’s letter was dated November 24, 2015, but postmarked November
30, 2015. Defense counsel received it December 2, 2015. On December 9,

2015, defense counsel sent a letter to Mr. Sisney indicating that he was
attempting to gather the information necessary from various state employees
and agents in order to respond to the discovery requests.
That same day, Mr. Sisney filed the instant motion to compel seeking an
order from the court directing defendants to respond to his discovery requests
and seeking monetary sanctions. See Docket No. 51. The motion is granted in
part and denied in part.
A party served with discovery requests has 30 days to respond to those
requests. See FED. R. CIV. P. 33(b)(2) & 34(b)(2). If service of the discovery
requests is accomplished by mailing, three additional days are added to
account for in-transit mail time. See FED. R. CIV. P. 6(d) and 5(b)(2)(C). Since
defendants immediately moved for a protective order after receiving
Mr. Sisney’s discovery requests, the court considers their 30-day response time
to have begun on the day the request for the protective order was denied,
which was October 30, 2015. Defendants had 33 days from that day to
respond to Mr. Sisney’s discovery requests, which date was December 3, 2015.
Obviously, by defendants’ response to Mr. Sisney’s motion to compel, they still
have not responded. However, Mr. Sisney’s letter attempting to resolve the
discovery dispute in good faith was premature—dated November 24, which was
a time during which defendants still had 9 days left in their response time.
Under the facts presented, the court believes an order compelling
defendants to respond is appropriate as their response is overdue. However,
sanctions are not appropriate. Accordingly, it is hereby
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ORDERED that plaintiff Charles Sisney’s motion to compel [Docket No.
51] is granted insofar as it seeks an order compelling defendants to respond to
his discovery requests. Defendants shall immediately or as soon as possible
serve Mr. Sisney with written responses to his October 19, 2015 discovery
requests. It is further
ORDERED that Mr. Sisney’s motion to compel is denied insofar as it
seeks an award of monetary sanctions.
DATED December 11, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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