Adams v. Turkey et al
Filing
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MEMORANDUM OPINION AND ORDER denying 42 Motion to Compel Discovery.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
LARRY ADAMS,
TDCJ-CID #1582430,
VS.
MARK TURKEY, ET AL.
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Case No. 2:11cv118
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO COMPEL DISCOVERY
Pending is plaintiff’s motion to compel discovery with brief in support (D.E. 42, 43),
to which defendants have filed a response in opposition. (D.E. 44). For the reasons stated
herein, plaintiff’s motion to compel is denied.
I.
Procedural Background.
Plaintiff is an inmate in the Texas Department of Criminal Justice, Criminal
Institutions Division (“TDCJ-CID”), and is currently incarcerated at the Stringfellow Unit
in Rosharon, Texas, although his lawsuit involves events that occurred while he was a
pretrial detainee housed at the Nueces County Jail. He filed this lawsuit on April 11, 2011
claiming that, while he was confined at the Nueces County Jail pending trial on criminal
charges, certain Nueces County Sheriff deputies working at the Nueces County Jail used
excessive force against him on May 28, 2009, causing him serious bodily injury, and that
these same defendants failed to protect him from the excessive force. (D.E. 1). Plaintiff
identified by name three defendants, and alleged that at least five other John/Jane Doe
officers may have been involved in the use of force. Id.
A Spears1 hearing was conducted on May 25, 2011, following which plaintiff’s
excessive force and failure to protect claims were retained, and service ordered on the
identified defendants, as well as any and all Nueces County John Doe Officers that were
involved in the May 28, 2009 Use of Force (“UOF”). (D.E. 11, 12).
On July 29, 2011, plaintiff filed a “notice of intent to sue defendants in their
individual capacities.” (D.E. 27).
The following defendants have appeared and filed an answer to plaintiff’s complaint
in their individual and official capacities: (1) Alicia Bauer; (2) Rudy Cueva; (3) San Juan
Gonzales; (4) Gregorio Molina; (5) Jennifer Nunez; (6) Roger Rakes; (7) Paul Stewart; (8)
Zachary Williams; (9) Kristin Shick; (10) Juan D. Rodriguez; and (11) Mark Turley.2 (See
D.E. 28 - 35, 38, 47, 49).
On July 21, 2011,3 plaintiff sent interrogatories, requests for production, and “request
for previous statement,” directed to defendants Gregorio Molina and Paul Stewart. (See D.E.
42, Ex. A).
By letter dated August 11, 2011, defendants’ attorney advised plaintiff that she
represented multiple defendants and that his discovery request “... does not identify to whom
the request is made.” (Id. at Ex. B). In addition, plaintiff was advised that defendants had
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
These defendants are represented by Nueces County Attorney Alissa Anne Adkins.
3
Defendants point out that the certificate of service for plaintiff’s discovery request is
dated July 26, 2011, and it is postmarked as mailed the following day. (See D.E. 44,
Ex. A at 5, 6).
2
not obtained a copy of the Spears transcript, but that he could order one from the Clerk’s
office. Id.
On August 24, 2011, defendants Molina and Stewart filed their responses to plaintiff’s
discovery requests. (Id. at Ex. C).
II.
Instant Motion to Compel.
In his motion to compel, plaintiff contends that defendants Molina and Stewart have
failed to comply fully with his discovery requests, and he raises the following specific
objections:
(1)
Molina and Stewart failed to attest to their responses under oath and failed to
sign them, in violation of Rule 33, Fed. R. Civ. P.;
(2)
Defendants’ answers to interrogatories 2 - 5 are insufficient, and defendants
failed to produce documents that they are required to produce because plaintiff is proceeding
pro se and in forma pauperis; and
(3)
Defendants have failed to make a complete disclosure of plaintiff’s prior
statements. (See D.E. 42 at 1-2).
Plaintiff further details his objections in his accompanying brief. (D.E. 43).
III.
Discussion.
The Federal Rules of Civil Procedure detail the manner in which discovery is to be
conducted in this action. See generally, Fed. R. Civ. P. 26 - 37. In the Fifth Circuit, it is
well-established that discovery is not to be used as a fishing expedition. See Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1396 (5th Cir.
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1994).
In his first objection, plaintiff points out that defendants Molina and Stewart failed to
attest to their interrogatory responses, nor did they sign them, as required by Fed. R. Civ. P.
33(b)(1) (3) and (5). (D.E. 42 at 2). Defendants admit this error. (D.E. 44 at 2). However,
both Molina and Stewart have remedied this defect by verifying their answers and signing
the verification. (See D.E. 44, Ex. B, Molina responses at 8; Stewart responses at 8). Thus,
this objection has been rendered moot, and is denied as such.
Plaintiff objects to the fact that defendants “have consolidated their answers,”4 relying
on Nagler v. Admiral Corp., 167 F. Supp. 413, 415 (S.D.N.Y. 1958). In Nagler, in response
to multiple sets of interrogatories, the defendants offered both separate and consolidated
answers, and a blanket verification that their responses were “true to the best of the
deponent’s ‘knowledge, belief, and information.’” The New York district court criticized
the form of the answers and the verifications because it was not possible to determine which
defendant was swearing to what information.
Nagler is distinguishable, however, because in this case, plaintiff sent one set of
interrogatories and requests for production to both defendants, yet both Molina and Stewart
filed separate responses and verifications. (See D.E. 42, Ex. A, and D.E. 44, Ex. B). The
fact that defendants’ objections and responses are almost identical is not unusual given the
4
In this objection, plaintiff identifies defendants as “Turley and Stewart.” (D.E. 43 at 2).
However, the discovery at issue was propounded to defendants Stewart and Molina, and it is
assumed plaintiff identified “Turley” in this pleading in error.
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fact that they are represented by the same counsel, and, at this point in the litigation,
plaintiff’s allegations against them are identical.
Plaintiff objects to defendants’ failure to produce copies of defendants’ privilege log,
“use of force packet”, plaintiff’s medical records related to the UOF, and any and all incident
reports and videos from the May 28, 2009 incident. Defendants explain that they did not
produce these documents because, as individuals, they do not have use of force plans or
packets, or a privilege log. In addition, defendants have no authority to obtain plaintiff’s
medical records from either the Jail or Christus Spohn Hospital, nor do they have authority
to release Nueces County Jail records.
Municipal liability law can be difficult for lawyers, let alone a pro se plaintiff with
limited access to legal resources. However, defendants’ objections to the requested
document production on the grounds that, as individuals, they have neither the access to, nor
the authority over, certain institutional records, correctly reflects the law’s recognition of the
municipality as a separate entity that can be sued. See Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658 (1978). It is unlikely that, as employees of Nueces County, Molina or
Stewart would have possession of many of the documents plaintiff seeks, and they are under
no obligation to produce them.5
Moreover, although plaintiff complains that he has received insufficient documents,
he has received the following documentation:
5
To obtain that information, plaintiff could file a motion for leave to amend his
complaint to name Nueces County as a defendant.
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(1)
Use of Force (“UOF”) report for 5/28/09 (2 pages);
(2)
UOF Narrative by Molina;
(3)
UOF supplement signed by J.D. Rodriguez;
(4)
UOF supplement signed by Z. Williams;
(5)
Incident report dated 5/8/09;
(6)
Incident report dated 6/3/09;
(7)
Inmates Notification – Violation of Rules, dated 5/28/09;
(8)
Major Violation/In-House Probation Form dated 5/28/09;
(9)
Notice of Pending Disciplinary Action dated 5/29/09;
(10)
Waiver of 24 Hour Notification dated 5/29/09;
(11)
Inmate Rights at Disciplinary Committee Hearing check form dated 5/29/09;
and
(12)
Disciplinary Hearing Committee form dated 5/30/09.
(See D.E. 42, Ex. C).
In addition, in response to certain interrogatories, defendants have identified the
appropriate entity and/or individuals from whom plaintiff can seek certain documents. For
example, defendants relate that Christus Spohn Hospital Memorial has possession of
plaintiff’s medical records for any treatment rendered in Nueces County Jail. Further,
defendants have requested and will produce a list of the inmates who were in Unit 4P on May
28, 2009.
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IV.
Conclusion.
Defendants have adequately responded to plaintiff’s discovery requests. Accordingly,
plaintiff’s instant motion to compel (D.E. 42) is denied. However, to move this case forward,
it is requested that counsel for defendants produce to plaintiff within twenty (20) days of
entry of this order:
(1)
Copies of Nueces County Jail’s UOF plan, plus any other written rules,
policies, or procedures addressing the authorized use of physical force by officers at the
Nueces County Jail, and, if no such written policies exist, provide a statement to that effect
within the required time period; and
(2)
A release for medical records, addressed to the appropriate official, that
plaintiff may sign and then submit to obtain copies of his Nueces County Jail medical records
concerning and limited to the May 28, 2009 UOF and follow-up care, if any.
ORDERED this 25th day of January, 2012.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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