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Fuller v. Kerr

United States District Court, Eastern District of Michigan, Southern Division

April 8, 2015

THOMAS LEROY FULLER (#237590), Plaintiff,
v.
DAVID KERR, GARY DAVIS, JANET COCHRAN and JOHN HAWLEY, Defendants.

MATTHEW F. LEITMAN, JUDGE

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO COMPEL DISCOVERY (DE 20) AND GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER (DE 38)

ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE

A. Background and Relevant Procedural History

Thomas Leroy Fuller (#237590) is currently incarcerated at the MDOC’s Marquette Branch Prison (MBP). Fuller initiated this lawsuit on July 23, 2013 while incarcerated at the Carson City Correctional Facility (DRF). DE 1. He is proceeding in forma pauperis. See DE 2, DE 4.

The Court granted Plaintiff leave to file a first amended complaint (DE 7), which he did on October 21, 2013 (DE 6). Plaintiff was also given leave to file a second amended complaint. See DE 17, DE 19. The second amended complaint (“SAC”) was filed on September 23, 2014 and names as defendants Kerr, Davis, Cochran and Hawley. DE 26; see also DE 25. Each of these defendants has appeared. DE 11, DE 40. The SAC pleads five counts, namely: excessive force resulting in bodily injury by Defendant Kerr (Count I); assault and battery by Defendant Kerr (Count II); failure to administer adequate medical care (Count III); 42 U.S.C. §1983 civil conspiracy (Count IV); and, violation of 42 U.S.C. §1983 and the Eighth Amendment (Count V). For purposes of the instant motions, it is significant that Plaintiff alleges at the end of every count that one or more of the defendants’ conduct caused him to suffer some combination of mental anguish, humiliation, emotional distress, mortification, embarrassment, pain and suffering, and/or the lasting side effects from damage to his lungs. (DE 26, ¶¶ 37, 40, 43, 46, and 52) (emphasis added). He also alleges a loss of his liberty. (DE 26, ¶ 46).

B. Instant Matters, Analysis and Rulings

1. Motion to Compel (DE 20)

Defendants filed the instant motion to compel discovery (DE 20) on September 16, 2014 and supplemented that motion on September 24, 2014 (DE 30). Plaintiff filed his response to the motion on October 31, 2014 (DE 37). That motion is GRANTED IN PART AND DENIED IN PART, for the reasons appearing and in accordance with the direction given below.

Defendants’ motion to compel complains of two things: first, that Fuller failed to answer their first set of interrogatories; and, second, that Fuller failed to respond to their first request for production of documents. Defendants allege that these discovery requests were served upon Fuller on July 29, 2014 (DE 20, ¶ 3). These are discussed in turn.

a. Interrogatories

Fuller takes the position that he should not have to answer the interrogatories at issue, because they exceed the 25 question limit contained in Fed. R. Civ. P 33(a)(1) by a significant amount. By his calculation, the defendants propounded 43 numbered interrogatories, which included 134 parts and subparts (DE 37 at 8). In their motion to compel, Defendants specifically, “acknowledge that said Interrogatories exceed the limits set by the Federal Court Rules, ” but argue that they should somehow be given a pass from the requirements of the rule “due to the complex nature of plaintiff’s claims, and the relatively limited time allowed for discovery in this case.” (DE 30 at 2). It is noted, however, that despite whatever burdens Defendants may have faced due to the alleged complexities and limited time allowed for discovery, the Court did permit Defendants to take Plaintiff’s deposition (DE 34, 46 and 56), and that the deposition apparently did take place on November 13, 2014 (DE 48-8). The Court assumes, therefore, that Defendants had ample opportunity to explore whatever topics were contained in their original interrogatories…and then some…most likely in an even more efficient manner than interrogatories would have afforded, given the availability of immediate follow-up questions in the deposition setting. For this reason, the issue of whether the interrogatories should be answered ought to be moot.

For the sake of completeness, however, even if the subject of these interrogatories is not mooted by the occurrence of Plaintiff’s deposition, the Court will not compel responses, in light of Defendant’s blatant and unilateral violation of Rule 33(a)(1), which contains an unambiguous limitation on the number of interrogatories which can be propounded, and which expressly states that the 25 written interrogatory limitation is not to be exceeded “[u]less otherwise stipulated or ordered by the court, ” as correctly noted in Fuller’s response (DE 37 at 2). Plaintiff was entirely correct in expressing his “doubt that the Court will enforce a violation of the rules governing discovery.” (DE 30-2, Pg ID 156). It will not.

Notwithstanding the Court’s disinclination to condone Defendants’ disregard for Rule 33, the Court does recognize that its own delay in deciding this motion before the December 6, 2014 discovery deadline prevented Defendants from curing the defect through the issuance of a conforming set of interrogatories. Although the Court believes it to be unlikely that Defendants suffered any prejudice from this delay – in light of the fact that Plaintiff’s deposition was taken in the interim – if Defendants still believe that it is necessary to seek additional, follow-up discovery by way of interrogatory, they may serve Plaintiff with up to 10 additional interrogatories, including all discrete subparts, before May 13, 2015. ...


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