Harris v. Sowers

LIONEL HARRIS, Plaintiff, v. AARON SOWERS, et al., Defendants.

Civil Action 2:16-cv-888

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 11, 2020

Judge James L. Graham

Chief Magistrate Judge Elizabeth P. Deavers

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, Lionel Harris, an Ohio inmate who is proceeding without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendants, employees of Madison Correctional Institution ("MaCI"). This matter is before the Court for consideration of several pending motions. (ECF Nos. 132, 133, 139, 142, 144, 154.) For the reasons that follow, Plaintiff's Motion to Compel (ECF No. 132), Plaintiff's Motion to Disqualify Counsel (ECF No. 133), and Plaintiff's Motion for Sanctions (ECF No. 144) are DENIED and Plaintiff's Motion to Strike Summary Judgment Affidavit (ECF No. 154) is DENIED AS MOOT. It is RECOMMENDED that Defendants' Motion for Summary Judgment (ECF No. 139) be GRANTED IN PART and DENIED IN PART and that Plaintiff's Motion for Partial Summary Judgment (ECF No. 142) be DENIED.

I.

At all times relevant to the Verified Amended Complaint ("Am. Compl.") (ECF No. 57), Plaintiff was incarcerated at MaCI.¹ (See generally Am. Compl.) Plaintiff, an African-Americaninmate, alleges that Defendants Aaron Sowers (MaCI mailroom screener), Melanie Futz (MaCI's secretary / notary public), Jacob Hays (MaCI mailroom screener),² Julia Chamberlin (MaCI Lieutenant),³ Cynthia Ricker (MaCI financial associate supervisor), Mary McCrary (MaCI mailroom screener),⁴ and Michelle Lovette (MaCI cashier)⁵ violated his constitutional rights in connection with their handling of and/or destruction and/or theft of his mail and his use or attempted use of the prison grievance system. (See generally Am. Compl.) The Court addresses in turn Plaintiff's claims and relevant evidence when addressing the various motions.

II.

Plaintiff has filed a Motion to Compel, seeking to compel responses to discovery requests served in March and May 2019. (ECF No. 132.) Defendants oppose the Motion to Compel (ECF No. 135; see also ECF No. 137), and Plaintiff has filed a reply memorandum (ECF No. 146).

A. Standard

"District courts have broad discretion over docket control and the discovery process." Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations omitted). "'It is well established that the scope of discovery is within the sound discretion of the trial court.'" Id. (quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). Federal Rule of Civil Procedure 26(b) identifies the acceptable scope of discovery:

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 outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 33(a)(2) ("An interrogatory may relate to any matter that may be inquired into under Rule 26(b)."), 34(a) ("A party may serve on any other party a request within the scope of Rule 26(b)[.]"). In short, "a plaintiff should have access to information necessary to establish her claim, but [] a plaintiff may not be permitted to 'go fishing'; the trial court retains discretion." Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017) (citing Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)); see also Superior Prod. P'ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 320-21 (6th Cir. 2015) ("In sum, '[a]lthough a plaintiff should not be denied access to information necessary to establish her claim, neither may a plaintiff be permitted to 'go fishing' and a trial court retains discretion to determine that a discovery request is too broad and oppressive.'" (quoting Surles ex rel. Johnson, 474 F.3d at 305)).

"[T]he movant bears the initial burden of showing that the information is sought is relevant." Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19,2017) (citing Gruenbaum v. Werner, 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant makes this showing, "then the burden shifts to the non-movant to show that to produce the information would be unduly burdensome." Id. (citing O'Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment (stating that a party claiming undue burden or expense "ordinarily has far better information—perhaps the only information—with respect to that part of the determination" and that a "party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them").

Finally, a party moving for an order compelling discovery 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." Fed. R. Civ. P. 37(a); see also S.D. Ohio Civ. R. 37.1 ("[M]otions . . . relating to discovery shall not be filed in this Court . . . unless the parties have first exhausted among themselves all extrajudicial means for resolving the differences."). Here, Plaintiff includes an affidavit certifying he made a good faith effort to resolve this dispute by corresponding with defense counsel. (ECF No. 132 at PAGEID # 1356.) The Court is satisfied that Plaintiff satisfies this prerequisite.

Plaintiff's Motion to Compel does not identify the responses to the specific discovery requests he seeks an order compelling. (See generally ECF No. 132.) However, after reviewing the attached Exhibit C (ECF No. 132-2 (copy of Plaintiff's objections to Defendants' discovery responses) and Defendants' opposition (ECF No. 135), the Court understands that the disputed discovery requests are Document Request Nos. 2, 3, 5, 7, and 9, served in March 2019, and fourdiscovery requests served in May 2019. The Court addresses these requests in turn.

B. Discovery Request No. 2 (March 2019)

This request seeks "[a]ll documents that refer to allegations of misconduct or other improper conduct by Defendants Ricker, Lovette, Hayes, McCrary, Chamberlin, Fultz, and Sowers whether such allegations are made by an inmate or by a member of the prison staff." (ECF No. 132-2 at PAGEID # 1360.) Defendants respond as follows:

OBJECTION: Defendants object to this discovery request to the extent that it is beyond the scope of Plaintiff's complaint and allegations. Further, Defendants object to the extent that the information sought is confidential. Inmates are not allowed to possess complaints submitted by other inmates because they are confidential. See Ohio Admin. Code 5120-9-31. Additionally, Defendants object to the extent that Plaintiff's request is irrelevant. Plaintiff seeks documents wholly unrelated to his case.

RESPONSE: Your grievances and complaints were provided in a previous discovery response. See documents Bates Stamped 0009-0051.

(Id.)

Plaintiff contends that Defendants' employment files are discoverable and are relevant to the claims. (ECF No. 132-3; ECF No. 146 at PAGEID ## 1625-26.) The Court disagrees. The Court is not persuaded that this overbroad request is relevant to whether Defendants took the actions described in the First Amended Complaint. See Brooks v. Yates, No. 1:09-cv-922, 2011 WL 6257684, at *1 (S.D. Ohio Dec. 15, 2011) (sustaining correction officers objection to inmate's request for production of officer's disciplinary records on grounds of relevancy and overbreadth where inmate sought records to demonstrate that the officers had a history of violent acts). While Plaintiff contends that "Defendants have a record of dishonesty in this matter[,]" ECF No. 146 at PAGEID # 1625, Plaintiff is not permitted to "go fishing[.]" Anwar, 876 F.3d at 854. Finally, even if the requested information had some relevance, Plaintiff has not persuadedthis Court that this degree of relevance outweighs the security concerns triggered in the production of such records in this case. See Perry v. Rousseau, No. 18-cv-12914, 2019 WL 3561920, at *3 (E.D. Mich. Aug. 6, 2019) (denying prisoner plaintiff's motion to compel where the defendants' disciplinary records "could contain information not within the general knowledge of the prison population, such as specific prison policies or protocols violated by an employee, the disclosure of which could undermine the security of the prisons" and "could also contain information about Defendants that could make them vulnerable to prisoner threats or manipulation. Plaintiffs' [sic] general assertion of relevance does not outweigh the security and safety concerns associated with production of Defendants' disciplinary records"). Accordingly, as it relates to Plaintiff's Discovery Request No. 2 (March 2019), the Motion to Compel (ECF No. 132) is DENIED.

C. Discovery Request No. 3 (March 2019)

Plaintiff requested "[a]ny Video footage of the Ma.C.I. administration building on 02/09/16 that specifically shows defendant Fultz entering and/or exiting the building — and access to equipment to view the footage." (ECF No. 132-1 at PAGEID #1358.) Defendants responded that "[n]o video footage of Defendant Sowers entering the MaCI administration building on February 9, 2016 exists." (ECF No. 132-2 at PAGEID # 1361.) Plaintiff objected to Defendants' response because he asked for video footage regarding Defendant Fultz, not Defendant Sowers. (ECF No. 132-3 at PAGEID # 1365.)

Defendants now clarify as follows:

The video footage Plaintiff requested was not retained under the retention policy. Video footage is maintained for a

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