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Gard v. Dooley

United States District Court, D. South Dakota, Southern Division

February 28, 2017

REX GARD, Plaintiff,
v.
BOB DOOLEY, CHIEF WARDEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; SUSAN JACOBS, ASSOCIATE WARDEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; MURIEL NAMINGA, LAUNDRY SUPERVISOR, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; ANDRA GATES, SUPERVISOR, DOH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; KELLY SWANSON, SUPERVISOR, DOH, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JENIFER BEMBOOM, CBM FOOD SERVICE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JOHN TREWIELLAR, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BARRY SCHROETER, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JENIFER STANWICK, DEPUTY WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; REBECCA SCHEIFFER, ASSOCIATE WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; LELAND TJEERDSMA, MAJOR, INDIVIDUAL AND OFFICIAL CAPACITY; TRAVIS TJEERDSMA, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY DEJONG, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY STEVENS, PROPERTY OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; CORPORAL CROPPER, CORPORAL, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY MILNE, CORRECTIONS OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; JESSICA LUKE, OFFICE STAFF, DOH, INDIVIDUAL AND OFFICIAL CAPACITY; DOC STAFF, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; AND CBM FOOD SERVICES EMPLOYEES, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DOCKET NO. 173

          VERONICA L. DUFFY United States Magistrate Judge.

         INTRODUCTION

         This case is before the court on plaintiff Rex Gard's pro se amended complaint alleging a claim pursuant to Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132. See Docket No. 55.[1] Currently pending is his motion for an order compelling defendants to provide certain discovery. See Docket No. 173. Defendants oppose the motion. See Docket No. 175. This matter has been referred to this magistrate judge for determination pursuant to 28 U.S.C. § 636(b) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district judge.

         FACTS

         Mr. Gard alleges he is an insulin-dependent diabetic. See Docket No. 55 at 2, 4. Although he never alleges this to be his disability for purposes of the ADA, the court assumes it to be. Mr. Gard alleges defendants have failed and refused to provide him proper diabetic socks and a proper diabetic diet. Id. at 5-8, 9-12. He alleges the time set aside for him to visit the law library twice per week is at the same time he must report for blood sugar checks and insulin injections, so he misses out on the full time he could otherwise spend in the law library. Id. at 13. He alleges his diabetes and medication require him to urinate frequently. Id. at 12. He alleges defendants' policies that no visits to the restroom are allowed during prisoner counts and visitation periods are a hardship on him because of his need for frequent urination. Id. at 12-13.

         Mr. Gard seeks injunctive relief requiring defendants "to comply with the Americans with Disabilities Act" in unspecified ways, provide law library time as necessary, proper meals, access to restrooms during all functions and visitation, and to provide all [unspecified] programs and services as required by the ADA and requiring defendants to provide the necessary staff to maintain all programs and services that are scheduled and that plaintiff is entitled to. Id. at 23. Mr. Gard also seeks nominal and compensatory damages. Id. Finally, Mr. Gard seeks an order withholding all federal funding from the South Dakota Department of Corrections until such time as the SDDOC complies fully with the ADA. Id. at 24. Mr. Gard requests punitive damages as well, but such damages are not available under the ADA. Meagley v. City of Little Rock, 639 F.3d 384, 390 (8th Cir. 2011).

         This current motion to compel is the second motion Mr. Gard has filed concerning the same discovery requests. Mr. Gard served defendants with his discovery requests on October 26, 2016. Although defendants requested an extension of time to respond to these requests, Mr. Gard never informed defendants whether he would grant an extension. He instead filed his first motion to compel. See Docket No. 167.

         The court denied Mr. Gard's first motion to compel for two procedural reasons. First, Mr. Gard did not comply with the requirement of showing he had made a good-faith effort to resolve the discovery dispute with defendants before filing his motion to compel. See Docket No. 172. Second, Mr. Gard raised new substantive objections to the defendants' responses in his reply brief and did not file a copy of defendants' responses. Id. Because of this, defendants had no opportunity to respond to the substantive objections and, without having the defendants' responses before it, the court was unable to evaluate whether defendants' responses were adequate. Id.

         Mr. Gard then filed the now-pending motion to compel. See Docket No. 173. He has again failed to file a certification that he conferred in good faith with defendants about his substantive objections to defendants' discovery responses. Id. He also again failed to provide the court with a copy of defendants' responses. Id. The latter omission was cured by defendants-they provided the court with their responses. See Docket No. 175-1.

         DISCUSSION

         A. Good-Faith Certification

         Federal Rule of Civil Procedure 37 provides in pertinent part as follows:

On 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.

See Fed.R.Civ.P. 37(a)(1). Similarly, this court's local rules provide as follows:

A party filing a motion concerning a discovery dispute must file a separate certification describing the good faith efforts of the parties to resolve the dispute.

See DSD LR 37.1. Mr. Gard has not complied with either of these rules. He never filed a separate certification of his good faith efforts to resolve this matter without resort to a court motion, nor did he recite what efforts he made in the body of his motion. See Docket No. 173.

         One week after filing his motion to compel, Mr. Gard sent a letter addressed to both the court and defendants' counsel. See Docket No. 174. That document simply reiterated Mr. Gard's demands for the discovery as initially requested. Id. This letter also does not satisfy the requirement of conferring in good faith with opposing counsel before filing a discovery motion as required by Rule 37 and Local Rule 37.1.

         Nor is Mr. Gard's failure excusable. Although he is a lay person and is representing himself, the court explained at length the requirement of conferring in good faith with the other party to try to informally resolve discovery disputes when the court ruled on Mr. Gard's first motion to compel. See Docket No. 172 at 3-4. Mr. Gard had this information in his possession prior to filing the instant motion to compel. Because Mr. Gard did not comply with this prerequisite to filing a discovery motion, the court denies his motion.

         B. Mr. Gard's Motion Fails on the Merits

         In an effort to move this case along, the court also addresses the merits of Mr. Gard's motion. Although Mr. Gard served defendants with 21 requests for the production of documents (see Docket No. 175-1), he outlines only 8 responses from defendants to which he objects. See Docket No. 173 at 2-4. The court will address only those 8 objections.

         The scope of discovery is set forth in Federal Rule of Civil Procedure 26:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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 out-weighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

See Fed.R.Civ.P. 26(b) (emphasis added).

         When a party requests discovery and the opposing party objects to producing the discovery, the burden is on the requesting party to first establish the relevancy of the discovery requested. E.E.O.C. v. Woodmen of the World Life Ins. Society, 2007 WL 1217919 at *1 (D. Neb. March 15, 2007) (citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). "Mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case." Id. (citing Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).

         Once the requesting party has made a threshold showing of relevance, the burden shifts to the party resisting discovery to show specific facts demonstrating that the discovery is not relevant, or how it is overly broad, burdensome, or oppressive. Penford Corp. v. National Union Fire Ins. Co., 265 F.R.D. 430, 433 (N.D. Iowa 2009); St. Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). The articulation of mere conclusory objections that something is ''overly broad, burdensome, or oppressive, '' is insufficient to carry the resisting party's burden-that party must make a specific showing of reasons why the relevant discovery should not be had. Cincinnati Ins. Co. v. Fine Home Managers, Inc., 2010 WL 2990118, *1 (E.D. Mo. 2010); Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 593 (W.D.N.Y. 1996).

         Several courts have determined that where the discovery requests are relevant, the fact that answering them will be burdensome and expensive is not in itself a reason for a court's refusing to order discovery which is otherwise appropriate. See In re Folding Carton Antitrust Litigation, 83 F.R.D. 260, 265 (N.D. Ill. 1979) (stating that ''[b]ecause the interrogatories themselves are relevant, the fact that answers to them will be burdensome and expensive >is not in itself a reason for refusing to order discovery which is otherwise appropriate' ''); Alexander v. Parsons, 75 F.R.D. 536, 539 (W.D. Mich. 1977) (stating that ''the mere fact discovery is burdensome . . . is not a sufficient objection to such discovery, providing the information sought is relevant or may lead to the discovery of admissible evidence''); and Burns, 164 F.R.D. at 593 (determining that the fact that answering interrogatories will require the objecting party to expend considerable time, effort, and expense consulting, reviewing, and analyzing huge volumes of documents and information is an insufficient basis for an objection). Moreover, if discovery requests are relevant, the fact that they involve work, which may be time consuming, is not sufficient to render them objectionable. See United States v. Nysco Labs., Inc., 26 F.R.D. 159, 161-62 (E.D.N.Y. 1960)and Rogers v. Tri-State Materials Corp., 51 F.R.D. 234, 245 (N.D. W.Va. 1970) (stating that A[i]nterrogatories, otherwise relevant, are not objectionable and oppressive simply on grounds [that] they may cause the answering ...


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