Filed: Aug. 21, 2018
Latest Update: Aug. 21, 2018
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action against sole defendant Correctional Officer D. Murphy. Discovery closed on July 13, 2018, and the dispositive motion deadline is October 12, 2018. ECF No. 19. Prior to expiration of the discovery deadline, 1 plaintiff filed two discovery motions. See ECF Nos. 32, 33. Plaintiff seeks to compel the production of prior complaints against defendant Mur
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action against sole defendant Correctional Officer D. Murphy. Discovery closed on July 13, 2018, and the dispositive motion deadline is October 12, 2018. ECF No. 19. Prior to expiration of the discovery deadline, 1 plaintiff filed two discovery motions. See ECF Nos. 32, 33. Plaintiff seeks to compel the production of prior complaints against defendant Murp..
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ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action against sole defendant Correctional Officer D. Murphy. Discovery closed on July 13, 2018, and the dispositive motion deadline is October 12, 2018. ECF No. 19. Prior to expiration of the discovery deadline,1 plaintiff filed two discovery motions. See ECF Nos. 32, 33. Plaintiff seeks to compel the production of prior complaints against defendant Murphy, and the disclosure of a surveillance videotape of the alleged incident underlying this action. ECF No. 33. Plaintiff also seeks sanctions against defense counsel "for falsifying documents, misrepresentation of facts, perjury and slander." ECF No. 32 at 1. For the reasons that follow, plaintiff's motion to compel further discovery will be granted in part and denied in part, and plaintiff's motion for sanctions will be denied.2
Defense counsel has filed an opposition to each motion, see ECF Nos. 34, 35, and provided a copy of defendant's responses to plaintiff's production requests, ECF No. 34, Ex. A. The undersigned's review of the latter demonstrates that counsel reasonably construes the motion to compel as an effort to obtain documents and a videotape responsive to plaintiff's Request for Production Nos. One and Four. ECF No. 34, Ex. A.3 (In response to plaintiff's Request for Production Nos. Two and Three, defendant produced documents as well as a privilege log identifying responsive but confidential documents.) Defense counsel continues to maintain that there exist no responsive documents. ECF No. 34-1 at 2 (Shryock Decl. ¶ 6). Counsel also emphasizes that plaintiff made no attempt to inform counsel that defendant's responses were deficient before filing either motion, i.e., plaintiff declined defense counsel's invitation to discuss "any other issues" following his deposition on July 10, 2018, and failed to satisfy the "safe harbor" provision required under Rule 11, Federal Rules of Civil Procedure, by first notifying defendant of his intent to seek sanctions. Finally, in response to plaintiff's motion for sanctions, counsel accurately notes that the motion is inadequate because it "lacks any facts that might inform defense counsel what they are accused of doing or why it would warrant sanctions. . . . [Plaintiff does not] explain what documents were falsified, what facts were misrepresented, what sworn statements were perjurious, or what public statements were slanderous." ECF No. 35 at 1-2.
Significantly, plaintiff did not file a reply to defendant's opposing briefs, and the time for doing so has passed.
A party's statement that, after a reasonable and diligent search, there exist no responsive documents to a production request is an acceptable reply. Here, however, the challenged responses were provided by defense counsel alone, "according to Defendant's best knowledge at this time." ECF No. 34-2 at 2. So that both parties can rely on the subject responses, the court will direct defense counsel to serve plaintiff with a verification — signed under oath by both defendant and defense counsel — that a reasonable and diligent search has been conducted to locate all requested documents, videotapes and other materials responsive to Plaintiff's Request for Production Nos. One and Four, and that there exist no responsive materials.4 In all other respects, plaintiff's motion to compel will be denied for failure to demonstrate any inadequacy in the subject discovery responses.
Plaintiff's motion for sanctions will be denied for failure to demonstrate any inadequacy in the conduct of defendant or his counsel.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to compel discovery, ECF No. 33, is granted in part.
2. Within fourteen (14) days after the filing date of this order, defendant and his counsel shall serve plaintiff with a verification signed under penalty of perjury by both defendant and his counsel, that a reasonable and diligent search has been conducted to locate all documents, videotapes and other materials responsive to Plaintiff's Request for Production Nos. One and Four, but there exist no responsive materials.
3. Plaintiff's motion for sanctions, ECF No. 32, is denied.
IT IS SO ORDERED.
