James E. Skinner, Plaintiff,
Charles L. Ryan, et al., Defendants.
LAWRENCE O. ANDERSON, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion to Compel Discovery in which Plaintiff requests that the Court compel Defendant Ryan to produce documents responsive to his requests for production. (Doc.48) Defendant Ryan has filed a Response and Plaintiff has filed a Reply. (Docs. 58, 63) On December 29, 2013, Plaintiff filed a Supplemental Pleading in Support of His Motion to Compel Discovery. (Doc. 92)
Plaintiff, a frequent filer and proceeding pro se, commenced this prisoner civil rights action pursuant to 42 U.S.C. § 1983 on August 14, 2012, by lodging a Complaint. (Docs. 1-2) Plaintiff also requested leave to proceed in forma pauperis, which was granted. (Docs. 3, 6) On September 21, 2012, the assigned District Judge denied Plaintiff's request to exceed the page limit and file the Complaint, but granted Plaintiff leave to file an amended complaint within thirty days thereafter. (Doc. 6)
Plaintiff filed a First Amended Complaint on October 2, 2012. (Doc. 8) Plaintiff raised two grounds for relief against seventeen separate defendants. In Count I, Plaintiff alleged he is being deprived of basic necessities in violation of the Eighth Amendment, including inadequate plumbing in his cell, unsanitary conditions in his cell and other areas, and the failure to provide cleaning supplies to address the unsanitary conditions. In Count II, Plaintiff alleged prison officials retaliated against him in violation of the First Amendment for filing a previous federal civil rights lawsuit. The District Judge screened the First Amended Complaint in accordance with 28 U.S.C. § 1915A(a) on February 19, 2013. (Doc. 9) The District Judge dismissed Count II for failure to state a claim, along with three defendants, but ordered fourteen defendants to answer the allegations in Count I. (Doc. 9 at 15)
II. Motion to Compel
In the Motion to Compel, Plaintiff asks the Court to order Defendant Ryan to produce documents responsive to his eight requests for production. Defendant Ryan's Responses to Plaintiff's First Request for Production, a copy of which is attached to the Motion to Compel, reflect that, while Defendant objected to all of the requests for various reasons, Defendant produced 19 documents that he claims are responsive to two of Plaintiff's requests. (Doc. 48 at 9-32)
Defendant contends, inter alia, the Motion to Compel should be denied because Plaintiff failed to comply with Rule 37(a)(1) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") and Rule 7.2(j) of the Local Rules of Civil Procedure ("LRCiv"). Rule 37(a)(1), Fed.R.Civ.P., provides that a motion to compel "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." The Local Rules reiterate this certification requirement and further provide that "[a]ny discovery motion brought before the Court without prior personal consultation with the other party and a sincere effort to resolve the matter, may result in sanctions." LRCiv 7.2(j).
Regarding his obligation to confer in good faith, Plaintiff attaches to his Motion to Compel a letter to Defendant's counsel, dated September 19, 2013, in which he expresses his dissatisfaction with Defendant's responses to the requests for production. (Doc. 48-1 at 20) Plaintiff also requests a teleconference with Defendant's counsel to "confer in good faith and attempt to resolve the dispute." ( Id. )
Plaintiff's Motion to Compel also includes a certification pursuant to LRCiv 7.2(j), explaining his attempt to confer with Defendant's counsel. (Doc. 48-1 at 18) Plaintiff asserts Defendant's counsel failed to respond to his request to confer. ( Id. ) Defendant's counsel apparently failed to review these attachments because he argues in the Response that Plaintiff failed to comply with the certification and conferral requirements. (Doc. 58 at 6) Moreover, Defendant's counsel presents nothing to show he did respond to Plaintiff's attempt to confer about the dispute. For these reasons, Defendant's argument that Plaintiff failed to comply with Fed.R.Civ.P. 37(a)(1) is without merit.
Nevertheless, Plaintiff, an experienced pro se litigant, has not demonstrated compliance with a different requirement pertaining to motions to compel. LRCiv 37.1 provides that a motion to compel discovery shall "set forth, separately from a memorandum of law, the following in separate, distinct, numbered paragraphs:
(1) the question propounded, the interrogatory submitted, the designation requested or the inspection requested;
(2) the answer, designation or response received; and
(3) the reason(s) why said answer, designation, or ...