Merrick v. Linderman

          ORDER

          David C. Bury Judge.

         The discovery matters now being fully briefed, the Court allows 30 days for discovery to be completed as described below, with any dispositive motions to be filed by January 15, 2019, and the Joint Pretrial Order due by February 15, 2019. THERE SHALL BE NO FURTHER EXTENSIONS OF TIME FOR DISCOVERY.

         The Plaintiff has filed three Motions to Compel/Sanctions and Defendants have filed one Motion to Compel and a Motion for Protective Order. The Plaintiff has filed a Motion for Clarification regarding the Court's dismissal of Defendant Monson. Both parties agree the reinstatement of Defendant Monson in Count IV. See (Response (Doc. 199) at 1 (no objection to Defendant Monson in Count IV)).

         The Court denies the Plaintiff's request for sanctions, grants in part and denies in part the motions to compel, denies the Motion for Protective Order, and grants the Motion for Clarification.

         Motions for Sanctions

         Both sides complain that the other has failed to comply with Rule 37 of the Federal Rules of Civil Procedure, which requires 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. Fed. R. Civ. P.37(a)(1). Plaintiff seeks sanctions against the Defendants, which the Court denies.

         This Court directed that in the event of a dispute over discovery matters, the parties should first “engage in personal consultation regarding the dispute and [] make a sincere effort to resolve the conflict. The parties should act to resolve discovery disputes quickly.” (Scheduling Order (Doc. 43) at 2.) As this Court noted when it considered a previous Motion to Compel from the Plaintiff, the Defendants may communicate with the Plaintiff in writing or call him, whichever form of communication they believe will be the most efficient way to expeditiously resolve [disputes].” (Order (Doc. 114) at 4.) To be clear, both parties, Plaintiff and Defendants, may confer in writing or by telephone as long as each side “present[s] to each other the merits of their respective positions with the same candor, specificity, and support during the informal negotiations as during the briefing of discovery motions.” Cardoza v. Bloomin' Brands, Inc., 141 F.Supp.3d. 1137, 1145 (Nevada 2015)). In respect to the pending discovery disputes, the parties have now conferred in writing. Below, the Court resolves the remaining discovery disputes.

         Defendants' Motion for Protective Order (Doc. 149)

         On July 16, 2018, the Defendant filed an objection to Requests for Admissions served by the Plaintiff on Defendants on June 13 and June 15, 2018, because the discovery deadline was July 5, 2018. Rule 36 of the Federal Rule of Civil Procedure allows a matter to be admitted or denied within 30 days of service. Defendants argued the Requests for Admissions were untimely. On review of the record, it appears that the Motion for Protective Order was in response to the Plaintiff's decision to file a Motion to Enlarge Time for Discovery (Doc. 145), but this was not entirely clear until the Defendants filed the Reply in Support of the Motion for the Protective Order. (Reply (Doc. 155) at 1.) In ruling on the Motion to Enlarge the Time for Discovery, the Court denied it without prejudice to be decided based on the outcome of the then pending discovery motions being ruled on here.

         In addition to reviewing the briefs related to the Motion for Protective Order, the Court has reviewed the briefs related to the Motion to Enlarge Time for Discovery, including the Defendants' Response. The Court finds that Defendant made two objections: 1) untimeliness and 2) the sheer volume of discovery requests to which Defendants had already responded. The Court finds that the evidentiary value of admissions cannot be duplicated by other discovery requests. The Court has now determined that pending resolution of Plaintiff and Defendants' discovery disputes, it will allow the parties a 60 day extension of time to complete any remaining discovery. (Order (Doc. 200) at 2.) Accordingly, the Motion for Protective Order is DENIED. The Defendants shall answer the June 13 and 15, 2018, Requests for Admissions.

         Plaintiff's Motion to Compel and Motion/Sanctions (Doc. 157)

         Request for Production No. 1: Plaintiff challenges production of two mail policies, DO 914.08.21 dated 2/26/2010 and DO 914.07.1.3 dated 3/4/2016, as inconsistent with Defendant Warford's response to Interrogatory No. 18. Interrogatory No. 18 asked: “After Plaintiff's lawsuit herein was filed in January 2017, were you told by authorities at Central Office to stop seizing material from online pen pal services.” Warford answered: “No. DO 914 was subsequently amended to allow inmates to receive mail from on line pen pal services, subject to the publication review process.” (emphasis added). Plaintiff notes that both policies disclosed by Defendant predate his law suit. He believes that Defendant has failed to disclose the amendment of DO 914, referenced by Warford in answer to Interrogatory 18 that was made subsequent to the filing of his law suit. Use of the term “subsequently” by Warford appears to have inaccurately described the timing of the amendments. The mail at issue in Plaintiff's law suit was seized June 25 and 27, 2015, under the 2010 DO 914.08 policy, which was amended March 4, 2016 after the seizure but prior to the January 2017 filing of the law suit. DENIED.

         Request for Production No. 6: Plaintiff is willing to compromise on this request to lessen the burden on Defendant to search records where there is no central data base. He seeks production of ASPC-Tucson records for contraband notices and/or for Office of Publication Review (OPR) decisions that reflect that Prison Inmate Online (PIO) sent their brochure to other inmates besides the Plaintiff and mailroom Defendants contrabanded the PIO brochure for any such prisoners and sent it back to PIO. (Reply (Doc. 172) at 8.) Defendant argues that Plaintiff's mail was seized because of inmate visitation photographs that had been altered and sent back into the institution through the mail. (Response, Ex. A (Doc. 166-1) at 2.) The Plaintiff argues the records are relevant to prove the Count Four allegations that Defendant adhered to an unofficial policy and kept returning mail sent from PIO to the Plaintiff to PIO. (Screening Order (Doc. 161) at 5-6); (Fourth Amended Complaint (Doc. 162) at 17-23, ¶ 39) (alleging that PIO sent a message to Plaintiff via his parents that it was able to correspond with other ADC prisoners but not him-Defendants Frame, Warford, and other mailroom staff were intentionally targeting him). Plaintiff does not allege that Defendant returned PIO mail to PIO for other inmates. Therefore, records for other inmate PIO correspondence is of limited, if any, evidentiary value and does not warrant the burden of the search on the Defendant even if limited to ASPC-Tucson. DENIED.

         Plaintiff's Motion to Compel/Sanctions (Doc. 178)

         Irby Request for Production No. 6: See Order (Doc. 196) (granting in part and denying in part Defendants' Motion for Protective Order for disclosure of Arizona Department of Corrections (ADC) Authorized Religious Property Lists from 2015, 2016, and 2017).

         Irby Interrogatory No. 5: Plaintiff asks Irby to “identify any and all agreements signed by Plaintiff that show he agreed to ‘abstain from purchasing food items at the inmate store that [the ADC and its agents allege] are not Kosher certified.'” (Motion (Doc. 137) at 5.) Irby responded by identifying the Restricted Diet Order signed by Merrick on December 30, 2015 and the settlement agreement in Merrick I. The remainder of both parties' responses contain argument as to whether or not these two things are agreements and/or what these documents say. Accordingly, the interrogatory has been answered. DENIED.

         Irby Interrogatory No. 6: Defendant Irby answered that he did not have access to information pertaining to the cost of a Kosher Diet compared to a regular inmate diet. Defendant has produced records showing the relative costs in the First Supplemental Disclosure Statement Bates No. 00137-00192. DENIED.

         Irby Interrogatory No. 8: “What ADC official would be responsible for authorizing policy that states inmates must abstain from purchasing food items at the inmate store that does not have a certified kosher mark while on the diet?” Irby responded that the Director of the ADC has delegated to the Pastoral Administrator the responsibility to authorize and implement its inmate religious diets, and Plaintiff inquired as to whether there is someone else responsible for policies. According to Defendant, “There is no one else. Irby's response merely indicated that the Director delegates various aspects of his authority over the ADC's policies to other staff and one of those is the Pastoral Administer, [Defendant Linderman].” (Response (Doc. 188) at 4.) GRANTED: The Defendant shall clarify whether Linderman has policy making authority ...