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Brent Jacoby v. J. Conway

June 25, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott



Before the Court is plaintiff's motion to compel (Docket No. 17). Plaintiff is an inmate proceeding pro se and is currently incarcerated outside of this District, housed at the Baldwin, County, Alabama, Jail. Responses to this motion were due by May 23, 2012, and any reply by June 4, 2012 (Docket No. 18). Defendants responded (Docket No. 19) and plaintiff replied (Docket No. 21). Defendants then submitted a sur-reply (Docket No. 23)*fn1 . The parties consented to proceed before the undersigned as Magistrate Judge on December 14, 2011 (Docket No. 7).


Plaintiff alleges use of excessive force against him by defendants while he was incarcerated at the Attica Correctional Facility on July 7, 2010 (see Docket No. 16, Am. Compl.). Plaintiff warned inmates that corrections officers were on his floor when an unnamed Hispanic inmate on the same floor was allegedly beaten by officers (id. Claim # 1, ¶¶ 1-4). Later that evening, plaintiff was stopped on his way to recreation, called names for helping the Hispanic inmate and punched by an officer causing injuries (id., ¶¶ 5-10). He was then advised to remain in his cell but on July 15, 2010, plaintiff went outside and was beaten by other corrections officers (id., ¶¶ 13-16). On July 20, 2010, plaintiff was patted down again and had his legs and boots grabbed causing pain (id., ¶ 18) and was slammed into a wall after he was told to go (id., ¶ 19). He alleges infringement on his First, Eighth, and Fourteenth Amendment rights for retaliation, cruel and unusual punishment, and harassment (id. at page 8).

Defendants answered the Amended Complaint (Docket Nos. 20, 22). This Court then entered a Scheduling Order (Docket No. 9, Order of Feb. 6, 2012).

Plaintiff's Motion to Compel

On May 4, 2012, plaintiff moved for an Order to compel production (Docket No. 17). There, he seeks defendants to produce disciplinary records and grievances lodged against them for assault, excessive use of force, and harassment. He also seeks the Incident Report arising from a use of force against a Hispanic inmate that plaintiff witnessed, missing eye examinations, and his medical records regarding being prescribed glasses for damage to his right eye. (Id.)

Defendants argue that plaintiff has not served discovery demands and therefore this motion to compel must be denied (Docket No. 19, Defs. Atty. Decl. ¶ 3). Treating the motion as such a demand, however, defendants intend to respond and make such objections as they may find appropriate (id. ¶ 3).

In reply, plaintiff argues that his motion should be granted because he did "file" his discovery requests with defense counsel, but counsel declined to respond to them as being untimely under this Court's rules (Docket No. 21, Pl. Reply ¶¶ 3, 4, 6).

In their counsel's sur-reply, defense counsel acknowledged receiving (and returning) plaintiff's discovery requests on March 9, 2012, since ordered initial disclosure was not due until April 5, 2012 (Docket No. 23, Defs. Sur-Reply ¶ 4). Defendants deemed plaintiff's demands duplicative of the initial disclosure of all relevant documents (id.). They declined to respond to the request for admissions or the Interrogatories because they were not addressed to a particular person (id. ¶ 5). Instead of serving discovery demands after receipt of the initial disclosure (Docket No. 12, filed Apr. 4, 2012), defendants conclude that plaintiff filed this motion to compel (Docket No. 23, Defs. Sur-Reply ¶ 6). Defendants then raised various objections to the objectionable documents sought by plaintiff (id. ¶¶ 7, 8-10). Plaintiff's medical records were also filed under sealed with this Court (id. ¶ 11; Docket No. 13, medical records filed under seal on Apr. 9, 2012).


I. Plaintiff's Motion to Compel

As defendants note (Docket No. 19, Defs. Atty. Decl. ¶ 4), in order to move to compel discovery, the movant first has to seek that discovery, see Fed. R. Civ. P. 37(a)(3)(B). But from defendants' sur-reply, they acknowledge that plaintiff tried to serve discovery demands, but deemed them premature since initial disclosures had yet to be served and plaintiff did not serve demands in light of the materials he received in that initial disclosure (Docket No. 23, Defs. Sur-Reply ¶¶ 4, 6). Thus, what plaintiff received from defendants in the initial disclosure (see Docket No. 12; see also ...

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