Douty v. Rubenstein et al
Filing
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MEMORANDUM OPINION AND ORDER denying Plaintiff's 40 MOTION for Compelling Discovery and Sanctions. Signed by Magistrate Judge R. Clarke VanDervort on 12/8/2014. (cc: pro se Plaintiff; attys) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
FRED D. DOUTY,
)
)
)
)
)
)
)
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Plaintiff,
v.
JIM RUBENSTEIN, et al.,
Defendants.
Civil Action No. 2:13-32832
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s “Motion and Brief in Support for Compelling
Discovery and Sanctions” (Document No. 40.), filed on November 7, 2014. Having thoroughly
considered the issues raised by this Motion, the undersigned concludes that Plaintiff’s Motion
(Document No. 40.) should be denied.
PROCEDURAL BACKGROUND
On December 20, 2013, Plaintiff, acting pro se, filed his Motion to Proceed Without
Prepayment of Fees and Complaint claiming entitlement to relief pursuant to Title 42 U.S.C. § 1983.
(Document Nos. 1 and 2.) In his Complaint, Plaintiff first alleges that Defendants violated his, and
other similarly situated inmates’, rights under the Eighth Amendment by applying excessive force
through use of chemical agents and other “riot-type” instruments while inmates were housed in
segregation. (Document No. 1.) Plaintiff also alleges that Defendants violated his First Amendment
rights by retaliating against him for filing grievances. (Id.) On December 31, 2013, Plaintiff filed
his Motion for Preliminary Injunction, Declaration, and Memorandum in Support. (Document Nos.
5 - 7.)
On February 7, 2014, Plaintiff filed his Amended Complaint. (Document No. 8.) In his
Amended Complaint, Plaintiff recognized that he could not pursue this matter as a class action and
stated that he wished to proceed only on his own behalf. (Id.) In his Amended Complaint, Plaintiff
named the following as defendants: (1) Jim Rubenstein, Commissioner of the West Virginia
Division of Corrections; (2) David Ballard, Warden of Mount Olive Correctional Complex
[“MOCC”]; (3) Paul Perry, Associate Warden of Security; (4) Ronnie Williams, Captain; (5) Daniel
Hahn, Lieutenant; (6) Andrew Hudson, Corporal; (7) Joshua Hypes, Correctional Officer II; (8)
Chris Hess, Corporal; (9) Nicholas Boychuck, Correctional Officer; and (10) Sergeant Joe Wimmer.
(Id.) Plaintiff complains that on September 2, 2013, Defendants subjected him to excessive force by
spraying him with chemical agents when he was not a threat to security and was locked in his
isolated segregation cell. (Id.) Plaintiff further alleges that Defendants’ conduct constituted
deliberate indifference to his health and safety, and resulted in an assault and battery under West
Virginia law. (Id.) As relief, Plaintiff requests monetary damages and declaratory and injunctive
relief. (Id.)
By Order entered on August 7, 2014, United States Magistrate Judge Dwane L. Tinsley
granted Plaintiff’s Motion to Proceed Without Prepayment of Fees and directed the Clerk to issue
process in this case by preparing and serving a Summons and a copy of Plaintiff’s Amended
Complaint upon the Defendants. (Document No. 15.) By Proposed Findings and Recommendation
also entered on August 7, 2014, Judge Tinsley recommended that Plaintiff’s Motion for Preliminary
Injunction be denied. (Document No. 16.) Plaintiff filed his Objections on August 25, 2014.
(Document No. 28.) Defendants filed their Answer on August 28, 2014. (Document No. 29.) By
Memorandum Opinion and Order entered on August 29, 2014, United States District Judge John T.
Copenhaver, Jr., adopted Judge Tinsley’s recommendation and denied Plaintiff’s Motion for
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Preliminary Injunction. (Document No. 30.)
On November 7, 2014, Plaintiff filed his “Motion and Brief in Support for Compelling
Discovery and Sanctions.” (Document No. 40.) Plaintiff contends that Defendants have failed to
respond to his First Request for Production of Documents and his “First Set of Interrogatories and
Second Request for Production of Documents.” (Id., pp. 1 - 2.) Plaintiff explains that he served
Defendants with his First Request for Production of Documents and Request for Admissions for
Defendant Andrew Hudson on September 2, 2014. (Id., p. 1.) Plaintiff states that on September 25,
2014, he served Defendants with his “First Set of Interrogatories and Second Request for Production
of Documents” and Request for Admissions for Defendants Rubenstein, Ballard, Perry, Williams,
Hahn, Hess, Hypes, Boychuck, and Wimmer. (Id., pp. 1 - 2.) Plaintiff claims that Defendants
responded to the Request for Admissions for Defendant Hudson on October 2, 2014, but Defendants
failed to respond to his First Request for Production of Documents. (Id.) Plaintiff acknowledges that
on October 28, 2014, Defendants Responded to his Request for Admissions for Defendants
Rubenstein, Ballard, Perry, Williams, Hahn, Hess, Hypes, Boychuck, and Wimmer. (Id., p. 2.)
Plaintiff, however, complains that Defendants did not respond to his “First Set of Interrogatories and
Second Request for Production of Documents.” (Id.) Plaintiff contends that he properly conferred
with Defendants prior to filing this Motion. (Id., p. 6.) Therefore, Plaintiff requests that this Court
enter an “order compelling discovery” and imposing sanctions. (Id., pp. 6 - 7.)
As Exhibits, Plaintiff attaches the following: (1) A copy of Plaintiff’s “First Request for
Production of Documents, Electronically Stored Information, or Tangible Things” dated September
2, 2014 (Document No. 40-1.); (2) A copy of Plaintiff’s “First Set of Interrogatories and Second
Request for Production of Documents, Electronically Stored Information, or Tangible Things” dated
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September 24, 2014 (Document No. 40-2.); and (3) A copy of a letter addressed to defense counsel
dated October 13, 2014, regarding Defendants’ failure to respond to Plaintiff’s Request for
Production of Documents dated September 2, 2014 (Document No. 40-3.).
On November 14, 2014, Defendants filed their Response in Opposition to Plaintiff’s “Motion
and Brief in Support for Compelling Discovery and Sanctions.” (Document No. 44.) First,
Defendants state that they received Plaintiff’s First Request for Production of Documents on or
about September 8, 2014, and Defendants filed their Responses on October 14, 2014. (Id., p. 1.)
Defendants explain that they mailed Plaintiff an additional copy of their Response upon receipt of
Plaintiff’s above Motion. (Id.) Second, Defendants acknowledge that they were late filing their
Responses to Plaintiff’s First Set of Interrogatories and Second Set of Requests for Production of
Documents. (Id.) Defendants explain that they were acting in “good faith” and “were assembling
all of the documents that were responsive to Plaintiff’s requests.” (Id., pp. 1 - 2.) Defendants note
that they “did not file any objections to these particular discovery requests, and the Plaintiff now has
all of the documents which are responsive to these particular discovery requests.” (Id.) Finally,
Defendants contend that Plaintiff is incorrect when he suggests that he “‘in good faith conferred or
attempted to confer’ with his adversary in an attempt to resolve this dispute.” (Id., p. 2.) Although
Defendants acknowledge that Plaintiff sent a letter inquiring about the responses to his First Set of
Requests for Production of Documents, Defendants contend they had already electronically filed
their Response prior to the receipt of the letter. (Id.) Defendants state that Plaintiff never attempted
to confer regarding his First Set of Interrogatories and Second Request for Production of Documents.
(Id.) Defendants, therefore, argue Plaintiff’s Motion should be denied because Plaintiff “now has
the discovery responses to all of the Interrogatories, Requests for Production and Admissions he has
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filed to date.” (Id.)
As Exhibits, Defendants attached the following: (1) A copy of a letter addressed to Plaintiff
from defense counsel dated November 10, 2014 (Document No. 44-1, p. 1.); (2) A copy of
“Defendants’ Responses to Plaintiff’s First Request for Production of Documents” which were
attached to the letter dated November 10, 2014 (Id., pp. 2 - 7.).
By Order entered on November 12, 2014, the above civil action was transferred from Judge
Tinsley to the undersigned for total pretrial management and submission of proposed findings of fact
and recommendations for disposition. (Document No. 42.) By Scheduling Order filed on November
19, 2014, the undersigned directed that all discovery requests be completed by March 19, 2015, and
all dispositive motions be filed by April 20, 2015. (Document No. 46.)
STANDARD
The Federal Rules of Civil Procedure contemplate that in conjunction with disclosure, civil
discovery is a process of elucidation and clarification of facts and circumstances relevant to claims
and defenses as presented in pleadings through which the claims and defenses are validated, defined
and shaped and issues are sharpened and refined for consideration at the dispositive motion stage
and trial of a civil case. The civil discovery process is to be engaged in cooperatively. Violation of
the Rules undermines the process.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense – including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
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Discovery is generally limited therefore to nonprivileged information which is relevant to any
party’s claims or defenses, and relevant information is information which is admissible at trial or
might reasonably lead to the discovery of information which is admissible at trial. See State ex rel.
Erie Ins. Property and Cas. Co. v. Mazzone, 218 W.Va. 593, 596, 625 S.E.2d 355, 358 (2005)(“A
threshold issue regarding all discovery requests is relevancy. This is so because ‘[t]he question of
the relevancy of the information sought through discovery essentially involves a determination of
how substantively the information requested bears on the issues to be tried.’” quoting Syllabus Point
4 of State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).)
When parties request relevant nonprivileged information in Interrogatories under Rules 33,
their request “must be answered:(A) by the party to whom they are directed.” Fed.R.Civ.P. 33(b)(1).
Federal Rule of Civil Procedure 33(b)(3) through (5) state further as follows:
(3) Answering Each Interrogatory. Each Interrogatory must, to the extent it is not
objected to, be answered separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with
specificity. Any ground not stated in a timely objection is waived unless the court,
for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and the attorney
who objects must sign any objections.
“Generic non-specific objections will not suffice when posed in response to reasonable
Interrogatories. Objections to reasonable Interrogatories must be specific to each Interrogatory and
explain or demonstrate precisely why or how the party is entitled to withhold from answering.” Vica
Coal Co., Inc., v. Crosby, 212 F.R.D. 498, 503 (S.D.W.Va. 2003). The Court requires strict
adherence to these Rules. Saria v. Massachusetts Mutual Life Insurance Company, 228 F.R.D. 536,
538 (S.D.W.Va. 2005).
When parties request relevant nonprivileged information in a Request for Production or
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Inspection of Documents under Rule 34, “[t]he party to whom the request is directed must respond
in writing . . ..” Fed.R.Civ.P. 34(b)(2)(A). Federal Rule of Civil Procedure 34(b)(2)(B) and (C)
provide as follows:
(B) Responding to Each Item. For each item or category, the response must either
state that inspection and related activities will be permitted as requested or state an
objection to the request, including the reasons.
(C) Objections. An objection to part of a request must specify the part and permit
inspection of the rest.
Objections to Rule 34 requests must be stated specifically, and boilerplate objections regurgitating
words and phrases from Rule 26 are completely unacceptable. Frontier-Kemper Constructors, Inc.,
v. Elk Run Coal Company, Inc., 246 F.R.D. 522, 528 - 529 (S.D.W.Va. 2007).
The Rules anticipate that each objection to a discovery request will state precisely why the
request is objectionable in view of the claims and defenses presented in the litigation. In most if not
all cases, an objection to a discovery request in conformity with the Rules will contain (1) a recital
of the parties’ claims and defenses, (2) a summary of the applicable statutory and/ or case law upon
which the parties’ claims and defenses are predicated including the elements of each claim or
defense, (3) a discussion of Court decisions considering the breadth or scope of discovery and any
limitations upon discovery in the same or a similar type of case and (4) a statement respecting how
and/or why the request seeks information which is irrelevant or will not likely lead to the discovery
of relevant information or is vague, overly broad, burdensome or interposed for an improper
purpose. Failure to state objections specifically in conformity with the Rules will be regarded as a
waiver of those objections. Sabol v. Brooks, 469 F.Supp.2d 324, 328 (D.Md. 2006).
Pursuant to Rule 36, “[a] party may serve on any other party a written request to admit, for
purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)
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relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness
of any described documents.” Fed.R.Civ.P. 36(a)(1). Federal Rule of Civil Procedure 36(a)(4) and
(5) provide as follows:
(4) Answer. If a matter is not admitted, the answer must specifically deny it or state
in detail why the answering party cannot truthfully admit or deny it. A denial must
fairly respond to the substance of the matter; and when good faith requires that a
party qualify an answer or deny only a part of a matter, the answer must specify the
part admitted and qualify or deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party
states that it has made reasonably inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be stated. A party must
not object solely on the ground that the request presents a genuine issue for trial.
Additionally, Rule 36(a)(6) allows a party who has served a request for admission to move the court
“to determine the sufficiency of an answer or objection. Unless the court finds an objection justified,
it must order that an answer be served.” Fed.R.Civ.P. 36(a)(6).
Federal Rule of Civil Procedure 37(a)(1) provides that if a party fails to cooperate in
discovery, “[o]n 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.” Rule 37(a)(4) provides that an incomplete
answer or response “must be treated as a failure to . . . answer, or respond.” Rule 37 (a)(5)(A) – (C)
provide as follows:
(A) If the Motion is Granted (or Disclosure or Discovery is Provided After Filing).
If the motion is granted – or if the disclosure or requested discovery is provided after
the motion was filed – the court must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees. But the court must not order this
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payment if:
(i)
(ii)
(iii)
the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
the opposing party’s nondisclosure, response, or objection was
substantially justified; or
other circumstances make an award of expenses unjust.
(B) If the Motion is Denied. If the motion is denied, the court may issue any
protective order authorized under Rule 26(c) and must, after giving an opportunity
to be heard, require the movant, the attorney filing the motion, or both to pay the
party or deponent who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees. But the court must not order this
payment if the motion was substantially justified or other circumstances make an
award of expenses unjust.
(C) If the Motion is Granted in Part and Denied in Part. If the motion is granted in
part and denied in part, the court may issue any protective order authorized under
Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable
expenses of the motion.
ANALYSIS
First, the undersigned will consider Plaintiff’s claim that Defendants failed to respond to his
First Request for Production of Documents. In Response, Defendants contend that they properly
Responded to Plaintiff’s above discovery request. A review of the record reveals that Defendants
filed their Certificate of Service regarding their Responses to Plaintiff’s First Request for Production
of Documents on October 14, 2014. (Document No. 38.) Furthermore, Defendants mailed Plaintiff
an additional copy of their Responses after receiving Plaintiff’s Motion to Compel. (Document No.
44-1.) The undersigned, therefore, finds Defendants have appropriately responded to Plaintiff’s First
Request for Production of Documents.
Second, Plaintiff claims that Defendants failed to respond to his First Set of Interrogatories
and Second Request for Production of Documents. The Court will consider whether Plaintiff made
a good faith effort to resolve the discovery dispute before filing his above Motion. The record
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reveals that Plaintiff mailed defense counsel a letter dated October 13, 2014, requesting that
Defendants respond to his First Request for Production of Documents. (Document No. 40-3.) There
is no evidence, however, that Plaintiff attempted in good faith to confer with Defendants regarding
his First Set of Interrogatories and Second Request for Production of Documents. Rule 37 requires
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.” Fed.
R. Civ. P. 37(a)(1). The penalty for failing to meet and confer is the inability to recover fees and
costs, including attorney’s fees. See Fed. R. Civ. P. 37(a)(5)(i); also see Frontier-Kemper
Constructors, Inc., 246 F.R.D. at 526(“[T]he sanction for failing to meet and confer is the denial of
a request for expenses incurred in making a motion, including attorney’s fees.”). Based upon a
review of the record, the Court finds that the parties never met and conferred as to Plaintiff’s First
Set of Interrogatories and Second Request for Production of Document regarding the actual issues
in dispute in an attempt to obtain the discovery material without Court action. The undersigned
further notes that Defendants filed their Certificate of Service regarding their Responses to
Plaintiff’s First Set of Interrogatories and Second Request for Production of Documents on
November 13, 2014. (Document No. 43.) Although Defendants acknowledge that their Response
was late, Plaintiff does not dispute that he received Defendants’ Response subsequent to the filing
of his Motion. Accordingly, it is hereby ORDERED that Plaintiff’s “Motion and Brief in Support
for Compelling Discovery and Sanctions” (Document No. 40.) is DENIED.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the parties are hereby
notified that the rulings set forth above may be contested by filing objections to this Order within
14 days. If objections are filed, the District Court, United States District Judge John T. Copenhaver,
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Jr. presiding, will consider the objections and modify or set aside any portion of the Order which
it finds to be clearly erroneous or contrary to law.
The Clerk is hereby directed to mail a copy of this Order to Plaintiff, who is acting pro se,
and to counsel of record.
ENTER: December 8, 2014.
R. Clarke VanDervort
United States Magistrate Judge
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