United States District Court, E.D. Wisconsin
SONNIEL R. GIDARISINGH, Plaintiff,
BRITTANY MCCUTCHEON and NATHAN HAYNES, Defendant.
ADELMAN UNITED STATES DISTRICT JUDGE
Sonniel R. Gidarisingh is a pro se Wisconsin state
prisoner, who filed this action under 42 U.S.C. § 1983.
He was allowed to proceed on Eighth Amendment medical care
claims against defendants Brittany McCutcheon and Nathan
Haynes, and a First Amendment retaliation claim against
defendant McCutcheon. (Docket No. 7, at 4.) Since I issued my
scheduling order on October 10, 2017, the parties have filed
several motions: plaintiff's motion to compel (Docket No.
15), defendants' motion for an extension of time of the
dispositive motion deadline (Docket No. 18), defendants'
second motion for extension of time of dispositive motion
deadline (Docket No. 19), plaintiff's motion for leave to
file additional proposed findings of fact (Docket No. 32),
defendants' motion to strike plaintiff's additional
proposed findings of fact (Docket No. 35), and
plaintiff's motion to strike defendants' reply in
support of their motion for summary judgment (Docket No. 37).
Because plaintiff's renewed motion for counsel is
dependent on the outcome of defendants' motion for
summary judgment and additional filing regarding
plaintiff's proposed findings of fact is still required
for that defendants' summary judgment motion, I will not
address plaintiff's renewed motion for counsel and
defendants' summary judgment motion at this time in this
order. I will discuss the remaining motions in turn.
MOTION TO COMPEL
has filed a motion seeking an order compelling defendants to
produce several documents for discovery. (Docket No. 15) In
particular, he seeks to compel defendants to respond to his
request for specific documents, interrogatories, and
admissions. Id. Defendants contend that some of the
documents requested for production are irrelevant or, at
most, the request is premature; that plaintiff's request
for his medical records should not be compelled because
plaintiff can get copies of his medical records at his own
expense; and that plaintiff's requests for responses to
his interrogatories and admissions have all been sufficiently
addressed. Under Federal Rule of Civil Procedure 37, a party
is permitted to file a motion to compel discovery where
another party fails to respond to a discovery request or
where the party's response is evasive or incomplete.
See Fed. R. Civ. P. 37(a)(2) and (3). A motion to
compel discovery pursuant to Rule 37(a) is addressed at the
sound discretion of the trial court. E.E.O.C. v. Klockner
H & K Machines, Inc., 168 F.R.D. 233, 235 (E.D. Wis.
1996). In exercising its discretion, the court must be
mindful that parties are permitted to obtain discovery
“regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending
action[.]” Fed.R.Civ.P. 26(b)(1).
Fed.R.Civ.P. 37 permits me to compel discovery, the party
seeking such discovery must complete several steps before
court intervention is appropriate. The party seeking
discovery must first direct his request to the opposing
party. See Civ. L. R. 37.1 (E.D. Wis. 2010). If the
opposing party fails to provide the materials, the party must
then “personal[ly] consult” with the opposing
party and “attempt to resolve their
differences.” Id. If the party is still unable
to obtain discovery, he may file a motion to compel discovery
with the court pursuant to Fed.R.Civ.P. 37(a). Such a motion
must be accompanied by a written statement that the parties
were unable to resolve their differences after personal
consultation and a statement of the “date and time of
such conference and the names of all the parties
participating in it.” Id.
motion to compel includes a statement indicating that he
attempted to resolve his discovery dispute with defendants
but they did not respond to all of his disputes.
Defendants' response to plaintiff's motion further
shows that the parties have conferred but a dispute regarding
plaintiff's discovery requests still remains.
Accordingly, I find that plaintiff has demonstrated that my
intervention is appropriate.
previously stated, parties may obtain discovery
“regarding any subject matter, not privileged, that is
relevant to the claim or defense of any party.”
Fed.R.Civ.P. 26(b)(1). A court may, on its own initiative,
limit discovery where the burden or expense of the proposed
discovery outweighs its likely benefit, taking into account
the importance of the proposed discovery in resolving the
issues before the court. Fed.R.Civ.P. 26(b)(2). I will now
determine whether plaintiff's requests are relevant and
to what extent.
seeks to have defendants produce all of their disciplinary
records as well as all of the personnel investigations done
against them. (Docket No. 15-1 at 5.) Plaintiff states that
this information will aid in negating defendants'
credibility. Defendants contend that releasing this
information would breach the security of the institution and
that plaintiff's request for it is premature given the
purpose in which he intends to use it.
position regarding the security risk posed if the information
is released is significant. “Disclosing personnel
information to inmates could lead to misuse of that
information by the inmate-it could be used to obtain power
over the correctional officer or to obtain favorable
treatment or contraband.” Sherman v. Jess, No.
13-CV-1355, 2015 WL 1966688, at *2 (E.D. Wis. Apr. 30, 2015).
Although the information may be relevant for the purpose
plaintiff asserts and thus I may consider, as the parties
suggest, an in camera review of the material at a later time
if necessary, it is not relevant at the summary judgment
stage. Accordingly, defendants shall not be compelled to
respond to this request for production at this time.
also requests defendants provide him with the current address
and location of former inmate Jerry Meeks. He states that
Meeks is a material witness and crucial to his case, but that
he was released from prison before plaintiff could secure a
declaration from him regarding the case. Defendants assert,
however, that they do not have Meeks' current address.
Fed.R.Civ.P. 34 requires production of a relevant
discoverable document that is in the “possession,
custody or control” of a party. Plaintiff has provided
no reason for me doubt defendants' statement that they do
not have Meeks' current address. Thus, defendants will
not be compelled to respond to this request.
next requests defendants provide him with copies of his
medical records and other specific medical files created by
the Waupun Correction Institution Health Services Unit (HSU).
Id. at 8-10. He has been allowed to proceed on
Eighth Amendment claims that defendants were deliberately
indifferent to his serious medical needs. Thus, the request
is relevant to his medical claim. However, defendants have
indicated the plaintiff can obtain his medical records and
specific medical files from the HSU directly. Although
“the fact that documents are available from another
source is not a valid basis, by itself, for refusing to
produce such documents, ” Gabby v. Maier, No.
04-C-0476, 2006 WL 2794316, at *3 (E.D. Wis. Sept. 27, 2006),
defendants also state and the record reflects that plaintiff
was informed that defendants did not yet have possession of
his medical records. Although defendants now note that they
do have possession of plaintiff's medical records,
plaintiff has not filed a reply stating that he is still in
need of the documents and that he was unable to secure them
on his own. Thus, I will not compel defendants to respond to
these requests at this time.
plaintiff requests defendants respond to several
interrogatories and admissions. With regard to his
interrogations, he ask defendants to state defendant
McCutcheon's height and weight and whether she is related
to any other staff at Waupun Correctional Institution.
Plaintiff states that this height and weight query is
relevant to refute defendants' assertion that he was
being disrespectful to defendant McCutcheon when he called
her a “little girl.” (Docket No. 15 at 4.)
Notwithstanding and without waiving their objection to the
query, defendants' response to plaintiff's
interrogatory was that “defendant McCutcheon could be
described as having a petite physical build.”
Id. For the purposes noted by plaintiff regarding
the use of this information, I find defendants' response
sufficient. Additionally, plaintiff's request to know
whether defendant McCutcheon is related to another staff
member to show she can violate “D.O.C. work
rules” without repercussion is irrelevant. Id.
at 5. Rather, it is whether she violated plaintiff's
Eighth and First Amendment rights that is at issue.
next asserts that defendants were being evasive with their
response to his requests for admissions numbers 14, 15, 16,
and 19. These requests essentially ask defendants to admit
whether inmate Jerry Meeks testified and made specific
statements during his testimony at plaintiff's
disciplinary hearing for his conduct report issued by
defendant McCutcheon. Answers to requests for admissions must
“fairly respond to the substance of the matter.”
Fed.R.Civ.P. 36(a)(6). Such answers are considered sufficient
if they also reference material the opposing party already
possesses. See Glover v. Dickey, No. 14-CV-87, 2015
WL 3397740, at *3 (E.D. Wis. May 26, 2015). For each
admission request, defendants admit for the most part that
Meeks testified at the hearing. Further, defendants assert
that they provided plaintiff with the full Conduct Report
packet, which included Meeks' testimony. Thus, they
essentially assert that the document speaks for itself with
regard to what Meeks may have stated during his testimony.
See Id. Therefore I find that defendants have
adequately responded to these requests for admissions.
also states that defendants were being evasive in their
response to his request for admission number 17, which asks
defendants to admit defendant McCutcheon conducted cell
search for extra linen on J-tier during the second shift on
January 11, 2017, with Sergeant Klemmer, COI Wink, COI
Bolden, and COII Schneider. (Docket No. 15 at 7.) Not only
must a party responding to a request for admissions
“fairly respond to the substance of the matter, ”
but a party responding to a request for admissions “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 reasonable inquiry and that the information it knows or
can readily obtain is insufficient to enable it to admit or
deny.” Fed.R.Civ.P. 36(a)(4). Defendants' response
to this request was that defendant McCutcheon performed the
cell search. In response to plaintiff's motion to compel,
they further state that upon reasonable inquiry they have
found that they have no record confirming all of the staff
who conducted the extra line search and that defendant
McCutcheon can only speak for her personal whereabouts.
Although defendants failed to initially substantively respond