Norton v. Parsons et al

Filing 71

MEMORANDUM DECISION and Order: Plaintiff's 18 motion for preliminary injunctive relief is DENIED as moot. Plaintiff's 44 Motion to Compel Discovery is GRANTED in part and DENIED in part. Defendants' 47 Motion to Seal is GRANTED. Defendants' 56 motion to strike Plaintiff's untimely reply to state defendants' response to Plaintiff's motion for TRO or PI is DENIED. Plaintiff's motion has since been denied as moot. Plaintiff's [5 8] Motion to Add Second Supplemental Exhibits is DENIED. Plaintiff's Supplemental 61 Motion to Compel Discovery is DENIED. Defendants' 34 summary-judgment motion is DENIED. Except for the two filings (of not more than ten pages ) authorized by the Court in this Order--(a) after receiving any additional discovery from Defendants, Plaintiff's document indicating whether he would like to amend the Complaint and (b) Plaintiff's reply to Defendant's response--Plai ntiff must suspend further filings of any kind. Any further filings not invited by the Court shall be returned to sender by the Clerk of Court. Any other filings would be irrelevant and distracting at this stage of the litigation. Signed by Judge David Nuffer on 03/28/2023. (jl)

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THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
LONNIE NORTON,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
Case No. 4:20-CV-38 DN

MICHAEL PARSONS et al.,

District Judge David Nuffer

Defendants.

As a pro se inmate, Plaintiff filed a complaint attacking his conditions of confinement,
mainly under 42 U.S.C.S. § 1983 (2022).1 He generally alleges Central Utah Correctional
Facility (CUCF) defendants Parsons and White provided constitutionally inadequate dental
treatment, while other CUCF defendants McNeill and Romero violated his constitutional rights
by rejecting certain publications mailed to Plaintiff. (Compl., ECF No. 5.)
More specifically, Plaintiff's Complaint states his claims and allegations as follows:
(1) From August 5, 2018 to March 20, 2019, Defendants Parsons and White provided
constitutionally inadequate dental care regarding his teeth numbers four and twelve, resulting in
those teeth breaking and permanently lacking viability. (ECF Nos. 5, at 4-7; 5-2, at 2, 15; 21-2,

1

The federal civil-rights statute reads, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . ., subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C.S. § 1983 (2022).
Section 1983 creates the right of action only; it does not create any substantive rights, which must derive
from the Constitution or federal statute. See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002).

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at 13; 21-9, at 7; 35, at 17.) During this time, there were CUCF staff members who did not
timely schedule dental appointments at Plaintiff's request, and there were two specific times, on
November 26, 2018 and December 12, when unknown housing officers did not allow Plaintiff to
attend dental appointments; all of this led to permanent damage of the teeth. (ECF No. 5, at 5-7.)
(2) Three publications addressed to Plaintiff were unconstitutionally returned to sender:
(a) On June 26, 2018, Defendant McNeill rejected the Disciplinary Self Help Litigation Manual
from Human Rights Defense Center AKA Prison Legal News; (b) On March 6, 2019, Defendant
Romero rejected a publication from "Hamiltonbook.com."; and, (c) on March 20, 2019,
Defendant Romero rejected a publication from "Hamiltonbook.com." (ECF No. 5, at 9-10.)2

2

Throughout his materials, Plaintiff appears to impermissibly try to expand his claims, plaintiffs, or
defendants beyond those found in the Complaint. (ECF No. 5.) Plaintiff may not bring other claims, plaintiffs, or
defendants into this action by referring to them in other post-Complaint documents and, either subtly or overtly,
indicating a wish for them to be litigated here.
Federal Rule of Civil Procedure clearly states that initial pleadings past the service-of-process stage, which
ended almost two years ago in this case, may be amended "only with the opposing party's written consent or the
court's leave." Fed. R. Civ. P. 15(a)(2). This has not happened here. So, the following potentially attempted claims,
or new plaintiffs and defendants, will not be considered further in this case in any way:
• "I declare that UDOC policies, as applied to [Defendant] McNeill to my book DSHLM, violated my
friend's constitutional right to correspond through the sending of this publication from the vendor PLN and my
constitutional right to receive it as well as PLN's right to sell and ship it to me." (ECF No. 35, at 29 (emphasis
added).)
• August 15, 2021, Warden Blood retaliated against Plaintiff, for pursuing legal claims as to rejected
publications, by going "back to allowing [Plaintiff] to only buy books off commissary." (ECF No. 35, at 38.)
• On January 31, 2020, Defendant Romero denied incoming books. (Id.)
• On August 19, 2021, property staff member, Sara Nelson, rejected incoming books. (ECF No. 35, at 41.)
• "I declare that Forrest McNeill, Jason Romero, Shane Nelson, Steve Gehrke, and Warden Blood did not
follow policies . . . [and] thus violated my constitutional rights." (ECF No. 35, at 43.)
• "I declare that the prison library was unavailable to me from March 2020 through July 2021, and UCI
Commissary book ordering has been unavailable to me from March 2020 through July 2021." (ECF No. 35, at 45.)
• "Along with the claims charged in [Plaintiff's] original complaint, circumstances have developed
subsequent to filing which will require supplemental pleadings setting out transactions, occurrences, or events that
happened after the date of the pleading." (ECF No. 36.)
• Unconstitutional policies, customs or practices.

2

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Defendants waived service of process, and filed answers, a Martinez report, a summaryjudgment motion, a motion for sealing of certain documents, and a motion to strike a document
Plaintiff filed. (ECF Nos. 10-17, 20-21, 31, 34, 47, 56.)
Plaintiff has pending motions for preliminary injunctive relief, (ECF No. 18); to compel
discovery, (ECF Nos. 44, 61); and to file supplemental exhibits, (ECF No. 58).
Each pending motion is examined in turn below.
I. MOTION FOR PRELIMINARY INJUNCTION
Plaintiff's Complaint raises claims under the Federal Constitution and Utah law, alleging
Defendants Parsons and White inadequately treated his teeth, numbers four and twelve. (ECF
No. 5.) These two teeth "broke," after incomplete root-canal therapy failed to save them. (ECF
Nos. 5, at 6-7; 5-2, at 14; 21-9, at 5; 35, at 17.) Defendant Parsons recommended the teeth be
extracted, but Plaintiff has declined that recommendation. (ECF No. 5, at 4; Parsons 2d Decl.,
ECF No. 49-5, at 5.) Instead, he seeks preliminary injunctive relief for the Court to require
Defendants to provide "permanent dental implants." (ECF No. 18.)
In the meantime, Plaintiff has transferred to a different facility, where Defendants
Parsons and White3 are not the dentists. (ECF No. 65.) "An inmate's transfer from a prison
facility generally moots claims for . . . injunctive relief related to conditions of confinement."
Mitchell v. Estrada, 225 F. App'x 737, 741 (10th Cir. 2007) (unpublished). Plaintiff's motion for
preliminary injunction to receive permanent dental implants is thus denied as moot. Other claims
for relief survive.

3

Defendant White left CUCF in April 2019 and so, for that reason too, is unavailable to provide injunctive
relief. (White Decl., ECF No. 21-9, at 2.)

3

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II. MOTIONS TO COMPEL DISCOVERY
As ordered, Defendants filed a Martinez report. (ECF Nos. 9, 20, 21, 31.) Such a report is
named after the Tenth Circuit case, Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), approving
the district court’s practice of ordering prison administrators to prepare a report to be included in
pleadings in cases when an inmate has filed suit alleging constitutional violations against
institution officials.
In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature
and function of a Martinez report, saying:
Under the Martinez procedure, the district judge or a United States
magistrate [judge] to whom the matter has been referred will direct
prison officials to respond in writing to the various allegations,
supporting their response by affidavits and copies of internal
disciplinary rules and reports. The purpose of the Martinez report
is to ascertain whether there is a factual as well as a legal basis for
the prisoner's claims. This, of course, will allow the court to dig
beneath the conclusional allegations. These reports have proved
useful to determine whether the case is so devoid of merit as to
warrant dismissal without trial.
Id. at 1007. The Martinez report then is a form of discovery in prisoner civil-rights cases. See
Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) ("A Martinez report is treated like an
affidavit . . . ."). The report here met its purpose by "allow[ing] assembly of a record 'necessary
for the orderly consideration of the issues.'" Adulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th
Cir. 2010) (quoting Martinez, 570 F.2d at 319).
In fact, this Martinez report produced a trove of admissible evidence, in the form of
prison records and policies, and declarations. (ECF Nos. 20, 21, 31.) Plus, before and after the
Martinez report, Plaintiff also filed admissible evidence, as follows: Verified Civil Rights

4

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Complaint,4 to which he attached copies of prison records and policies, and correspondence,
(ECF No. 5); a "supplemental exhibit," with a copy of prison policy, (ECF No. 7); "Declaration
of Lonnie Norton," (ECF No. 35); and, Plaintiff's Martinez Response, to which he attached more
copies of prison records and policies, and correspondence, (ECF No. 36). These filings have
resulted in a fair amount of duplication.
Despite availability of these hundreds of pages of evidence, Plaintiff moves for more
discovery. (ECF Nos. 44, 51, 61.) Together, Plaintiff's discovery motions are construed "as
motions for relief under Federal Rule of Civil Procedure 56(d)," stating,
[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition [to a summary judgment motion], the court may: (1)
defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.
Fed. R. Civ. P. 56(d). Such a Rule56(d) affidavit or declaration must describe: "(1) the probable
facts not available, (2) why those facts cannot be presented currently, (3) what steps have been
taken to obtain these facts, and (4) how additional time will enable the party to obtain those facts
and rebut the motion for summary judgment." Valley Forge Ins. Co. v. Health Care Mgmt.
Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (quotation marks and brackets omitted).
And one of Plaintiff's discovery documents is actually entitled, "Verified Memorandum
Regarding Need for Discovery," explicitly referencing Rule 56(d). (ECF No. 51.)

4

Because Plaintiff's complaint was verified, it is treated as a "sworn affidavit." See Ali v. Dinwiddie, 437 F.
App'x 695, 697 n.4 (10th Cir. 2011) (unpublished) (citing Hall, 935 F.2d at 1111 (stating plaintiff's complaint is
treated like affidavit so long as it "alleges facts based on the plaintiff's personal knowledge and has been sworn
under penalty of perjury")).

5

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Indeed, "[b]ecause pro se litigants may be unfamiliar with the requirements to sustain a
cause of action, they should be provided an opportunity to controvert the facts set out in the
Martinez report." Hall, 935 F.2d at 1109. "[A] prison litigant may fend off summary judgment
by producing evidence conflicting with that in the Martinez report, or by alleging contradictory
facts in a verified complaint based on personal knowledge." Graham v. Van Dycke, 318 F. App'x
654, 657 (10th Cir. 2009) (unpublished). After all, inmates asserting violations by prison
officials "will rarely suffer from information asymmetry. Not only do prisoners ordinarily know
what has happened to them; but they will have learned how the institution has defended the
challenged conduct when they pursue the administrative claims that they must bring as a
prerequisite to filing suit." Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010).
That being said, the guiding tenet for reviewing Plaintiff's discovery requests is that
"[d]iscovery [is a] matter[] within the district court's broad discretion." Adulhaseeb, 600 F.3d at
1310. In probing these requests, though, the Court is mindful that "[a] pro se litigant's pleadings
are to be construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers." Hall, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Defendants apparently did not attempt to answer any of Plaintiff's discovery requests.
A. Generally Applicable Discovery Rule
Rule 26(b)(1) states:
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
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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).
Plaintiff should very clearly keep in mind that the only evidence relevant to this action
concerns his discrete claims and allegations against the defendants in his Complaint, and
numbered one through two in this Order's second paragraph. (ECF No. 5.) Plaintiff should also
remember that, as part of its Rule 26(b) inquiry, the Court has done a deep dive into all evidence
filed thus far, in identifying as closely as possible just any potential gaps to be filled, based on
the Court's understanding of the specific elements of, and allegations regarding, each cause of
action asserted in the Complaint.
B. Plaintiff's Motion to Compel Discovery
Here, Plaintiff asks the Court, under Federal Rules of Civil Procedure "33(a), 34(b),
36(a), and 37(a), for an order compelling the defendants to (1) produce for inspection and
copying [certain documents]; (2) answer [certain] interrogatories; and (3) make [certain]
admissions." (ECF No. 44.)
i. "Plaintiff's First Request for Production of Documents"
In "Plaintiff's First Request for Production of Documents," he seeks (a) every UDOC
document as to Defendants Parsons or White or anyone at UDOC that concerns Parsons or
White's "mistreatment of prisoners"; (b) every UDOC document for any UDOC inmate grieving
"dental services from April 1, 2015 to date of your response"; (c) all staff instructions and
policies for root canals done by UDOC personnel; (d) Plaintiff's "entire dental file, including, but
not limited to, dentists' and assistant's notes, treatment records, memos, emails, text messages, x7

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rays, meta-data, photos, diagrams, etc., from Plaintiff's arrival at the prison on . . . April 10, 2015
to date of your response"; (e) every UDOC document for scheduling dental appointments for
Plaintiff from his arrival at CUCF to response date; (f) every UDOC grievance document for
Plaintiff's dental care and denial of his packages; (g) every UDOC document as to CUCF staff
keeping Plaintiff from dental appointments on November 26 and December 12, 2018; (h) most
recent UDOC policies for mail and property; and (i) all UDOC policies, practices, and customs
regarding third-party purchases and approved vendors' lists. (ECF No. 44-2, at 2-7.)
Out of these requested documents, the only items that may be relevant and proportionate
to Plaintiff's claims are root-canal instructions; Plaintiff's full dental file as to Defendants Parsons
and White's treatment of his teeth numbers four and twelve, between August 5, 2018 through
March 20, 2019; every UDOC document with information about CUCF staff (with names)
handling Plaintiff's dental-care requests and scheduling Plaintiff's dental appointments, for
treatment of teeth numbers four and twelve, between August 5, 2018 through March 20, 2019;
and, every UDOC document as to CUCF staff (especially those that identify the staff members
involved) rejecting Plaintiff's attendance at dental appointments on November 26 and December
12, 2018. These items must be provided by Defendants now, or Defendants must provide
citations, with page numbers, to documents on file where this information has already been
provided. If Defendants are unable to identify names of staff members, they must explain their
efforts and why they failed.
Because the other items requested lack relevance to the claims and defendants at issue in
the Complaint, and are out of proportion to the discovery actually needed, discovery of all other
items not listed in the above paragraph is denied. See Fed. R. Civ. P. 26(b)(1).
8

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ii. Plaintiff's Interrogatories and Requests for Production of Documents
Having reviewed the possible relevance to the claims and defendants in the Complaint,
the Court sees but one interrogatory that suggests relevance (as tailored by the Court) and fills a
gap not already found in the evidence on file here--i.e., state names, titles, and duties of all
CUCF staff members, except Defendants Parsons and White, with responsibility for responding
to Plaintiff's dental-care requests and scheduling Plaintiff's dental appointments, for teeth four
and twelve, between August 5, 2018 through March 20, 2019. (ECF No. 44-4, at 3.)
This must be answered by Defendants now. But, because all other requested items under
this section, (ECF No. 44-4), lack relevance to the claims and defendants in the Complaint and
are out of proportion to the discovery needs in the case, discovery on those subjects is denied.
See Fed. R. Civ. P. 26(b)(1).
iii. Plaintiff's First Requests for Admisssions
Having reviewed the possible relevance to the claims and defendants at issue in the
Complaint, the Court rejects all requests for admission, as none seems relevant or fills a gap in
the evidence already on the docket. (See ECF No. 44-5.)
iv. Summary
In summary, Plaintiff's Motion to Compel Discovery is granted in part and denied in part,
as identified in the above paragraphs. (ECF No. 44.) Any requested discovery items regarding
matters outside the exact dates and events involved in the specific allegations and causes of
action raised in the Complaint are rejected by the Court as irrelevant. Any requested discovery
items that appear to duplicate the evidentiary items already on the docket are rejected by the
Court. The Court also considers that grievance documents--many of which already appear on the
9

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docket--do not appear particularly relevant because this affirmative defense has not been relied
upon in the summary-judgment motion. Generally speaking, most of what Plaintiff has sought is
irrelevant. See Brigden ex rel. Brigden v. Oklahoma ex rel. Okla. Dep't of Corr., No. 96-6339,
1997 U.S. App. LEXIS 29876, at *24-25 & n.7 (10th Cir. Oct. 29, 1997) (unpublished)
("Clearly, the plaintiff hopes and believes that further discovery will turn something up. It takes
some showing greater than that [general and conclusory references], however, to prevail at this
point."); Hanson v. Smith, No. 93-3129, 1993 U.S. App. LEXIS 32621, at *5 (10th Cir. Dec. 6,
1993) (unpublished) (holding district court did not err in denying discovery when "Plaintiff
apparently wished to pursue a fishing expedition without any basis or foundation").
B. Plaintiff's "Verified Memorandum Regarding Need for Discovery"
This document was filed to meet Plaintiff's need to allege "by affidavit or declaration
that, for specified reasons," he "cannot present [some] facts essential to justify . . . opposition" to
Defendants' summary-judgment motion, (ECF No. 51.) Fed. R. Civ. P. 56(d). Plaintiff's
arguments primarily address the validity of his discovery requests. The Court has carefully
reviewed this document and considered all its statements and arguments in deciding on the
discovery requests evaluated above.
C. Plaintiff's Supplemental Motion to Compel Discovery
Here, Plaintiff asks the Court to order Defendants "to produce for inspection and
copying" UDOC "policy and procedure" as "altered, amended, or removed in 2022, after
Defendants' Martinez report." (ECF No. 61.) However, such documents have no relevance to the
claims here--occurring in 2018 and 2019. The Court therefore denies this motion.

10

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The only relevant UDOC policy and procedure is what was in place during the exact
times of the allegations and claims in the Complaint. It appears from the Court's review of the
docket that much of that relevant policy and procedure was already filed.
III. MOTION TO SEAL
Under District of Utah Local Rule 5-3(b)(7), Defendants move "for an order to file under
seal any records marked Private and Protected under the Utah Records Access and Management
Act, without filing redacted versions of the Exhibits." (ECF No. 47.) Defendants argue that "[t]he
Exhibits marked Private and Protected are highly confidential, and include information such as
protected prison policies, health records and witness declarations," warning that "[a]ccess to
these records is subject to specific controls, including both public and inmate restrictions" and
"redactions would essentially nullify Exhibits at issue in their entirety." (Id. at 2.)
Defendants' arguments apply to their response, (ECF No. 48), to Plaintiff's motion for
preliminary injunctive relief, (ECF No. 18), with the "under seal" designation requested for
Defendants' exhibits marked "Private": Exhibits B (Plaintiff's patient progress notes), G (UDOC
dental director's declaration about Plaintiff's dental health), and H (Defendant Parsons'
declaration about Plaintiff's dental health); and Defendants' exhibits marked, "Protected":
Exhibits C (UDOC Dental Services policy) and E (UDOC Health Care Services policy).
Defendants contend these exhibits are prohibited from disclosure to the public under Utah Code
§§ 63G-2-302, -305, so sealing them would "provide a secure way to communicate the sensitive
information to the Court without compromising prison security" and "honor State Defendants'
[Utah Records Access and Management Act (GRAMA)] obligations." (ECF No. 47, at 4.)

11

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Defendants further urge that a redaction requirement would result in "the documents at issue
essentially . . . containing no information and . . . no practical value." (ECF No. 47, at 5.)
Plaintiff opposes Defendants' motion. (ECF No. 54.) In deciding this motion, the Court
has reviewed all the parties' arguments.
The District of Utah's Local Rules recognize that "records of the court are presumptively
open to the public," and so "sealing [documents] . . . is highly discouraged." DUCivR 5-3(a)(1).
However, "[o]n motion of a party and a showing of good cause, a judge may order that a
Document be sealed." Id.
Based on Defendants' arguments and the Court's review of these exhibits, the Court sees
the sensitive nature of information on Plaintiff's private medical records and the need for security
regarding UDOC's policies on medical care for inmates in its custody. Concluding that good
cause exists to seal the documents, without requiring redacted copies, the Court finds
Defendants' request narrowly tailored in the protection it seeks; the duration of the seal shall be
permanent; and, at the very least, Utah's GRAMA supports the sealing. See DUCivR 5-3(b)(2).
IV. ORDER
IT IS ORDERED that:
(1) Plaintiff's motion for preliminary injunctive relief is DENIED as moot. (ECF No. 18.)
(2) Plaintiff's Motion to Compel Discovery is GRANTED in part and DENIED in part.
(ECF No. 44.)
(a) The motion is granted as follows: Within thirty days, Defendants must provide
to the Court and Plaintiff--

12

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(i) copies of every UDOC document regarding • instructions about root
canals; • Plaintiff's dental file as to Defendants Parsons and White's treatment of his teeth
numbers four and twelve, between August 5, 2018 through March 20, 2019; • handling of
Plaintiff's dental-care requests and scheduling of Plaintiff's dental appointments (especially those
identifying the involved staff members), for treatment of teeth numbers four and twelve, between
August 5, 2018 through March 20, 2019; and, • CUCF staff (especially those that identify the
staff members involved) who denied Plaintiff's attendance at dental appointments on November
26 and December 12, 2018; and,
(ii) an answer to one interrogatory that requests the names, titles, and
duties of all CUCF staff members, other than Defendants Parsons and White, who had
responsibility for responding to Plaintiff's dental-care requests and scheduling Plaintiff's dental
appointments, regarding teeth four and twelve, between August 5, 2018 through March 20, 2019.
If Defendants have already provided any of this information, they must provide
citations to relevant documents and pages.
(b) The motion is denied as follows: Any items not identified in section (2)(a),
directly above, need not be provided in discovery. The Court has concluded that such items lack
relevance to the specific claims and defendants in the Complaint. See Fed. R. Civ. P. 26(b)(1).
(3) Defendants' Motion to Seal is GRANTED. (ECF No. 47.) Exhibits B, C, E, G, and H,
attached to State Defendants' Response to Plaintiff's Request for a TRO or Preliminary
Injunction, (ECF No. 48), are to remain sealed, with no need to provide redacted copies.

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(4) Defendants' motion to strike Plaintiff's untimely reply to state defendants' response to
Plaintiff's motion for TRO or PI is DENIED. (ECF No. 56.) Plaintiff's motion has since been
denied as moot.
(5) Plaintiff's Motion to Add Second Supplemental Exhibits is DENIED. (ECF No. 58.)
What Plaintiff seeks to add is a copy of an article, entitled, "The Difference Between Dental
Crowns and Dental Implants," that was apparently taken from a particular dentist's website. This
article appears to be promotional material, lacking indices of relevant, admissible evidence.
(6) Plaintiff's Supplemental Motion to Compel Discovery is DENIED. (ECF No. 61.)
(7) Within thirty days of receiving any of the possible discovery required of Defendants
here, Plaintiff must file only a document of fewer than ten pages--not an amended complaint--in
which he states whether any of that specific new discovery causes him to want to amend his
Complaint. Plaintiff must keep in mind that he may not expand the dates or claims beyond where
they stand now. For instance, if Plaintiff suggests he would like to add actual defendant names to
replace the "Doe" defendants in the Complaint--linking them to the specific allegations about
teeth four and twelve, between August 5, 2018 through March 20, 2019--the Court will entertain
his request under Federal Rule of Civil Procedure 15.
(8) Within thirty days of receiving Plaintiff's document indicating whether he would like
to amend the Complaint, Defendants shall file a response.
(9) Within thirty days of receiving Defendants' response, Plaintiff shall file a reply, not to
exceed ten pages.
(10) Within sixty days of receiving Plaintiff's reply, the Court will issue an Order
regarding whether Plaintiff may amend his Complaint.
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(11) Pending these developments, Defendants' summary-judgment motion is DENIED,
(ECF No. 34.) Fed. R. Civ. P. 56(d) ("If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may . . . deny
[the motion]."). After all, Plaintiff has shown here that some relevant facts may not be available
and he tried but failed to obtain those facts from Defendants. See Valley Forge Ins. Co., 616 F.3d
at 1096. Of course, based on how the litigation takes shape in coming months, Defendants may
choose to renew their summary-judgment motion in the future.
(12) Except for the two filings (of not more than ten pages) authorized by the Court in
this Order--(a) after receiving any additional discovery from Defendants, Plaintiff's document
indicating whether he would like to amend the Complaint and (b) Plaintiff's reply to Defendant's
response--Plaintiff must suspend further filings of any kind. Any further filings not invited by the
Court shall be returned to sender by the Clerk of Court. Any other filings would be irrelevant and
distracting at this stage of the litigation.
DATED this 28th day of March, 2023.
BY THE COURT:

_________________________________________
JUDGE DAVID NUFFER
United States District Court

15