STEPHANIE K. BOWMAN, Magistrate Judge.
On June 30, 2016, the undersigned entered an Order and a Report and Recommendation ("R&R") that recommended the dismissal of claims against one Defendant, while permitting Plaintiff's Eighth Amendment claims to proceed against Defendants Gifford, Dillow, and Tipton. (Doc. 6). Since then, Plaintiff has filed a number of motions. Plaintiff recently filed three more discovery-related motions, as well as a motion seeking to amend/correct his complaint. (Docs. 30, 33, 34, 36). For the following reasons, one of Plaintiff's motions to compel discovery will be granted in part, but his remaining three motions will be denied.
A prior motion by Plaintiff to compel the Defendants to respond to his written discovery requests was denied in a written Order filed on November 21, 2016. (Docs. 24, 29). However, in explaining that the denial was "without prejudice to renew," the Order clarified that some of the Defendants' objections to production appeared to be without merit.
(Doc. 29 at 2-3).
On December 30, 2016, Plaintiff filed a second motion to compel discovery from the Defendants, asserting that the Defendants have continued to fail to respond to his requests for production despite multiple requests. Attached to Plaintiff's motion are two pieces of correspondence from defense counsel, dated October 4, 2016 and November 22, 2016. The October letter indicates that defense counsel is working on interrogatory responses which may "take a week or two." (Doc. 30 at 5). As to the requests for production of documents, defense counsel states that his paralegal is "out until next week," but will work on the production upon her return. (Id.) The November 22, 2016 letter similarly reassures Plaintiff that the paralegal, who is "out [again] this week" is continuing to gather responses to Plaintiff's discovery requests. Defense counsel explains that support staff have "inquired" to obtain records from the institution, suggesting that they are continuing to "work[] on your request." (Id. at 6).
In a formal response to Plaintiff's second motion to compel, counsel represents that two Defendants (Gifford and Dillow) have provided interrogatory responses, but admits that Nurse Tipton still has not completed her responses.
With all due respect to defense counsel, Defendants' response is insufficient. The Federal Rules of Civil Procedure generally impose 30-day time limits for parties to respond to discovery requests. While those time periods frequently are extended by agreement, in this case Defendants offer no explanation sufficient to explain the length of delay about which Plaintiff complains. Defendants were expressly warned by this Court more than three and a half months ago that responses to Plaintiff's discovery requests then appeared to be overdue. In light of the prior dispute and acceptance of prior representations that the overdue discovery would be produced, the Court cannot continue to ignore the failure to provide Plaintiff with discovery.
The Court is not without sympathy for the predicament of counsel who appears to be short-staffed,
The Court will deny Plaintiff's request for a monetary sanction of $800 as a sanction under Rule 37 for Defendants' failure to respond to his discovery requests. Plaintiff is a pro se prisoner-litigant and not an attorney; therefore, there were no attorney's fees or any significant costs incurred by Plaintiff in filing his motion. Moreover, while Defendants' response is not adequate to preclude a grant of Plaintiff's motion to compel, counsel does provide sufficient justification to avoid the imposition of a formal sanction. Plaintiff's own statements in one of his later filed motions, (Doc. 33), underscore the same point. There, Plaintiff references counsel's attempts to provide the requested discovery by providing a replacement disc for a DVR disc that was damaged or unreadable, and by providing numerous written documents responsive to Plaintiff's requests. (Id. at 2). Based on Plaintiff's statements in this motion, it is not clear whether there is any discovery left to compel Defendants to produce, other than Defendant Tipton's responses to Plaintiff's interrogatories.
On March 1, 2017, Plaintiff filed what was docketed as a third motion to compel. (Doc. 33). Examination of this motion reveals it to be more in the nature of correspondence expressing Plaintiff's intention to file another motion to compel discovery. On March 6, Plaintiff filed a "motion for default judgment" in which he seeks entry of default against Defendant Tipton based upon her failure to serve her longoverdue responses to Plaintiff's interrogatories. (Doc. 36). The undersigned will deny both of these discovery-related motions without awaiting Defendants' response, because they are both rendered moot with the relief provided in this Order.
The last matter requiring the Court's review is a document that was docketed as a "motion to amend/correct complaint." (Doc. 33). Defendants failed to file any response, and their time for doing so has now expired.
Review of this document reveals that it is not in fact a motion to amend Plaintiff's complaint, but instead a letter from Plaintiff that provides additional information about the same overdue discovery responses that form the basis for Plaintiff's other three motions. In fact, most of the 2-page letter advises the Court of discovery recently received from defense counsel and expresses Plaintiff's willingness to wait "for another week or so ... [for defense counsel] to produce defendant Nurse Tipton's answers to my interrogatories." (Doc. 33 at 2).
In a loosely related query in the same letter, Plaintiff asks whether this Court views "any and all digital data for a case that contains evidence before it is sent to the [Plaintiff] ... for viewing?" (Id.)
In a small portion of the letter, Plaintiff expresses a future desire "to amend my original complaint, and add several more defendants because the staff at SOCF where I was previously at are obviously trying to cover it up." (Doc. 33 at 1). Plaintiff asks: "Is there a process in which I can do that?" (Id. at 2). A motion to amend a complaint may be filed under Rule 15, but the proposed amended complaint must be attached to any such motion. See infra at note 4. Plaintiff has not attached the proposed amended complaint.
Any proposed amendment to Plaintiff's complaint would be subject to the same initial screening standards under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(B)(1) that led to the dismissal of a portion of Plaintiff's original claims. (Doc. 6). Plaintiff does not identify the names of the proposed defendants or any basis for a claim based upon his conclusory assertion that the unidentified Defendants are trying to "cover ... up" the incident(s) of force about which he complains. In addition, while leave to amend is liberally granted, amendment may be denied for procedural reasons including undue delay.
Based upon the lack of information provided concerning the proposed future amendment, the failure to state any claim against any new defendant, and the fact that the document appears to be a letter improperly documented as a motion which concerns discovery issues fully addressed by this Order, the "motion to amend" will be denied.
