STANLEY A. BOONE, Magistrate Judge.
Plaintiff Thurman Gaines, a state prisoner, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendant Horowitz's motion to compel and motion to modify the scheduling order.
Plaintiff filed a complaint in this action on April 16, 2015. (ECF No. 1.) Plaintiff's complaint and first amended complaint were dismissed for failure to state a claim on September 11, 2015, and February 11, 2015, respectively. (ECF Nos. 10, 16.) On April 14, 2016, Plaintiff's second amended complaint was screened, and this action is proceeding against Defendant Horowitz for deliberate indifference. (ECF No. 20.) Defendant Horowitz filed an answer to the complaint on August 18, 2016. (ECF No. 27.)
On August 18, 2016, the scheduling order issued setting the pretrial deadlines in this action. (ECF No. 28.) On September 9, 2016, a modified scheduling order was filed. (ECF No. 30.) On November 1, 2016, Defendant filed a motion to compel and a motion for a thirty day extension of time to file a motion for summary judgment for failure to exhaust. (ECF Nos. 32, 33.) Defendant's motion for an extension of time to file a motion for summary judgment was granted on November 3, 2016. (ECF No. 34.) Defendant's motion for failure to exhaust is due thirty days after Plaintiff files his supplemental responses to Defendant's discovery requests. On December 13, 2016, Defendant filed a declaration stating that Plaintiff had not served an opposition to the motion to compel. (ECF No. 35.) On December 14, 2016, the undersigned was assigned as the magistrate judge in this matter. (ECF No. 36.) On February 17, 2017, Defendant filed a motion to modify the scheduling order. (ECF No. 37.)
Rule 26 of the Federal Rules of Civil Procedure provides that a party "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 outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). Information need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).
Generally, if the responding party objects to a discovery request, the party moving to compel bears the burden of demonstrating why the objections are not justified.
Discovery is not limited to the issues raised in the pleadings but encompasses any matter that bears on or reasonably could lead to other matter that bears on any issues that is or may be in the case.
Defendant propounded discovery requests regarding Plaintiff's failure to exhaust administrative remedies on September 8, 2016. (Dec. of A. De La Torre-Fennell ¶ 4, ECF No. 33-1.) Plaintiff served responses to the discovery requests on October 20, 2016. (
Defendant contends that Plaintiff's responses to interrogatory nos. 3, 4, 5, 7, and 8 generally states that he has previously responded to these interrogatories in his response to interrogatory no. 2 or that the information requested is included in the complaint and such responses are inadequate. Defendant argues that Plaintiff should be compelled to supplement his responses.
Interrogatory no 3 states "[f]or each appeal you identified in response to Interrogatory No. 1, describe in detail all specific steps you have taken to exhaust the appeals you contend you filed that are relevant to the allegations in your First Amended Complaint, including any inquiries regarding the status of the appeal. (Defendant Horowitz's Request for Responses to Interrogatories Re: Exhaustion of Administrative Remedies, ECF No. 33-1 at 5.
In response to interrogatory number 3, Plaintiff responded:
(Pl.'s Response to Def. Horowitz's Request for Interrogatories RE: Exhaustion of Administrative Remedies, ECF No. 33-1 at 16-17.)
Defendant sought the steps Plaintiff took to exhaust his administrative remedies and Plaintiff responded with the specific appeals that he contends exhausted his administrative remedies in this action. As the moving party, it is Defendant's burden to describe why a particular discovery response is inadequate.
Interrogatory no. 4 requests Plaintiff to "[i]dentify each and every person by name and ADDRESS who you contend has knowledge of any fact supporting your contention that you filed an administrative appeal on July 21, 2014, relevant to the allegations in your complaint." (ECF No. 33-1 at 6.) Plaintiff responded that this information was previously provided in response to interrogatory no. 2. (ECF No. 33-1 at 17.)
Interrogatory no. 2 asks Plaintiff to identify each person who he contends has knowledge of any fact supporting his contention that he filed an inmate appeal relevant to the allegations in his complaint. (ECF No. 33-1 at 6.) In response, Plaintiff identified Victor Cooper. (ECF No. 33-1 at 16. Although these interrogatories are closely related, interrogatory no. 4 requests more specific information than interrogatory no. 2. Interrogatory no. 4 is seeking information in general, while interrogatory no 4 is seeking individuals with knowledge regarding specific events. Rule 33 of the Federal Rules of Civil Procedure requires that each interrogatory "be answered separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). Therefore, Plaintiff is required to answer each of the interrogatories separately.
Defendant's motion to compel further response to interrogatory no. 4 is granted. Plaintiff is required to provide a supplemental response to interrogatory no. 4.
Interrogatory no 5 requires Plaintiff to "[d]escribe in detail all specific steps you have taken to exhaust the appeal you contend you filed on July 21, 2014, as alleged in your First Amended Complaint, including any inquiries regarding the status of the appeal." (ECF No. 33-1 at 6). Plaintiff responded that the information was previously produced in response to interrogatory no. 3. (ECF No. 33-1 at 17.)
While Plaintiff replies that the information was produced in response to interrogatory no 3, Plaintiff's response to interrogatory no 3 was that "[o]n 7-21-14, Plaintiff filed Health Care Appeal (No Log Number) pertaining to actor Horowitz and Doctor Rudas failure to initiate paper-work to change my housing status to Ground-floor." (ECF No. 33-1 at 16.) Stating that he filed an appeal does not describe in detail the steps Plaintiff took to exhaust the appeal filed on July 21, 2014. In responding to this interrogatory Plaintiff needs to set forth the specific steps he took in regards to this appeal, such as who he gave the appeal to, who he spoke with, any requests he made to follow up on the appeal, etc. Defendant's motion to compel further response to interrogatory no. 5 is granted. Plaintiff is required to provide a supplemental response to interrogatory no. 5.
Interrogatory no. 7 requests that Plaintiff "[i]dentify each and every person by name and ADDRESS who you contend has knowledge of any fact supporting your contention that you could not locate your CDC 602 Inmate Appeal concerning Defendant Horowitz that you allege you filed on July 21, 2014." (ECF No. 33-1 at 6.) Plaintiff responded that this information was previously produced in response to interrogatory no. 2. (ECF No. 33-1 at 18.)
As in interrogatory no. 4, the information requested by interrogatory no. 7 is more specific than the information requested by interrogatory no. 2. Defendant is not asking who is aware that Plaintiff filed an appeal but seeks to discover who has knowledge of facts to support Plaintiff's contention that he could not locate the appeal. Defendant's motion to compel further response to interrogatory no. 7 is granted. Plaintiff is required to provide a supplemental response identifying any individual that he contends has knowledge of any fact that supports his contention that he could not locate the inmate appeal he filed on July 21, 2014.
Interrogatory no. 8 seeks for Plaintiff to "[d]escribe all steps you took to locate your CDC 602 Inmate Appeal concerning Defendant Horowitz, that you allege you filed on July 21, 2014, including the date and identification of all individuals you spoke with concerning access to your appeal and the date and identification of all written requests you submitted for access to your appeal." (ECF No. 33-1 at 7.) Plaintiff objected on the ground that the information sought is included in the complaint which states that "Plaintiff filed the appeal on July 21, 2014, and that Defendant Horowitz accommodated plaintiff's request for Ground-Floor-Housing on July 23, 2014. (ECF No. 33-1 at 18.) Plaintiff states that he therefore did not need to pursue the whereabouts of the appeal. (
Plaintiff's response is not responsive to the request. Plaintiff needs to either state the steps he took to locate his appeal or state that he did not attempt to locate the appeal. Defendant's motion to compel further response to interrogatory no. 8 is granted and Plaintiff is required to provide a supplemental response to interrogatory no. 8.
Defendant contends that Plaintiff objected to the request for production of documents and states that discovery is on-going. Defendant propounded three requests for documents.
Request for production no. 1 seeks "[a]ll DOCUMENTS supporting your contention that you filed an administrative appeal on July 21, 2014, relating to Defendant Horowitz's failure to initiate paper-work to change your housing assignment as you allege in the First Amended Complaint. (ECF 15.)" (Defendant Horowitz's Request for Production of Documents Re: Exhaustion of Administrative Remedies, ECF No. 33-1 at 11.) Plaintiff responded that he will produce a declaration by inmate Victor W. Cooper stating that inmate Cooper composed and filed the appeal on Plaintiff's behalf. (Plaintiff's Response to Request for Production of Documents Propounded to Plaintiff by Defendant, ECF No. 33-1 at 22.)
Request for production no. 2 seeks "[a]ll DOCUMENTS supporting your contention that an appeal you filed on July 21, 2014, "disappeared," as you allege in the First Amended Complaint. (ECF 15.)" (ECF No. 33-1 at 11.) Plaintiff responded that he will produce a declaration attesting to the disappearance of the administrative appeal filed on July 21, 2014. (ECF No. 33-1 at 22.)
Request for production no. 3 seeks "[a]ll DOCUMENTS evidencing, referring to, or relating to each step you took to locate your inmate appeal which you allege you filed on July 21, 2014." (ECF No. 33-1 at 11.) Plaintiff states that he will produce his own declaration dated 10-11-16. (ECF No. 33-1 at 23.)
Plaintiff's response that he will have responsive documents produced is not responsive to these requests. "A party must make a reasonable inquiry to determine whether responsive documents exist, and if they do not, the `party should so state with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence.'"
Defendant's motion to compel further response to Defendant's request for production of documents is granted. Plaintiff is required to provide supplemental responses to the requests for production of document. If the only documents that exist are those Plaintiff had created after receiving the request for production he must so state and indicate that no other documents exist.
Defendant seeks modification of the scheduling order in order to allow Plaintiff to respond to the discovery requests and file a motion for summary judgment on failure to exhaust. Further, Defendant seeks to modify the scheduling order to allow the parties to engage in merits discovery should the motion for summary judgment for failure to exhaust be denied.
Amendments of the scheduling order are governed by Rule 16 of the Federal Rules of Civil Procedure which provides that a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The district court has broad discretion in supervision of the pretrial phase of litigation.
Defendant timely filed the current motion to compel which has been pending while the dates set in the current scheduling order expired. Defendant has been unable to file a motion for summary judgment on exhaustion while waiting for the Court to decide the motion to compel. The Court finds that good cause exists to issue an amended scheduling order resetting all dates in this action. Defendant's motion to amend the scheduling order is granted.
The scheduling order in this action was issued while this action was assigned to District Judge Ralph Beistline. Subsequently the action was reassigned to the dockets District Judge Lawrence J. O'Neil and Magistrate Judge Stanley A. Boone. Accordingly, the Court shall issue the appropriate judge specific scheduling order.
Based on the foregoing, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
