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Johnson v. Runnels

March 4, 2010

VANCE EDWARD JOHNSON, PLAINTIFF,
v.
D.L. RUNNELS, WARDEN, ET. AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants have moved for summary judgment. Dckt. No. 146. Plaintiff opposed that motion, Dckt. No. 160, and also responded with requests to continue it pursuant to Fed. R. Civ. P. 56(f) and with requests to modify the March 31, 2009 order establishing the time frame for completion of discovery and for leave to conduct additional discovery. He also requested sanctions for defendants' alleged failure to comply with the court's March 31, 2009 order partially granting plaintiff's motion to compel (i.e., an inspection of plaintiff's wounds under Fed. R. Civ. P. 35). Dckt. Nos. 149-154.

In response to the order to compel, defendants provided plaintiff with supplemental responses and produced additional documents and a privilege log. However, defense counsel inadvertently failed to provide the court with certain documents for in camera review.

Following inquiry by the court, the error was addressed by counsel with the filing of a motion for protective order, which was accompanied by the documents for in camera review and a proposed protective order. Dckt. Nos. 164, 165.

The court denies defendants' motion for summary judgment without prejudice, grants plaintiff's requests for reconsideration of the limited time frame of permissible discovery set out in the court's March 31, 2009 order, and denies the rest of the parties' motions and requests.

I. Plaintiff's Request for Sanctions

Plaintiff asks that defendants be sanctioned for failure to comply with the court's March 31, 2009 order. See Dckt. No. 142 (order denying in part and granting in part plaintiff's motion to compel discovery responses). The court ordered defendants to supplement their discovery responses and prepare a privilege log for any documents that were not produced, as well as submit any allegedly privileged documents for in camera review.

Plaintiff asserts that defendants did not submit a proper privilege log or submit withheld documents for in camera review. Dckt. No. 150 at 4. He also asserts that defendants' supplemental discovery responses are evasive. Plaintiff asks the court to impose sanctions under Rule 37.

Defendants did provide plaintiff with a privilege log of withheld documents. See Dckt. No. 150, Attach. B. Additionally, plaintiff is mistaken in his claim that defendants' supplemental responses to plaintiff's discovery requests are evasive. He might question the veracity of the response, but defendants have responded. The court ordered defendants to supplement their responses to plaintiff's requests for production of documents, set one, numbers 2 through 5 and set two, numbers 1 and 3.*fn1 Plaintiff's set one requests asked for personnel records and records of disciplinary actions, disciplinary reprimands, and "critical incident reports," relevant to the defendants' "track record reputation and specific instances of conduct."

Dckt. No. 150 at 27-39. Defendants' supplemental responses to set one stated that they "do not have any record of adverse action or disciplinary actions in their personnel files for the time period [set out in the court's order]." Id. at 37-39. In other words, defendants assert that they have no documents responsive to the requests. The court finds that defendants' responses to the first set of discovery are not evasive, and that they have complied with the court's order in this respect.

However, it is undisputed that defendants failed to submit the withheld documents for in camera review within 30 days of the court's March 31, 2009 order, as required by that order. It was only in response to the court's inquiry that defendants realized the error and submitted copies of the withheld documents on January 29, 2010. Dckt. No. 165. Defendants' counsel explained that she "only recently became aware that during her extended leave of absence, the submission of documents to the Court for in camera review was never completed." Id.

Fed. R. Civ. P. 37(b)(2) provides that if a party disobeys a discovery order, the court must order the disobedient party to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. In this case, defendants failed to produce allegedly privileged documents for in camera review in a timely fashion. The court finds that defendants' oversight was not substantially justified, as defendants' only explanation is that counsel did not know that the task was not completed. Accordingly, an award of expenses incurred to compel compliance with the order is appropriate. However, plaintiff is proceeding pro se and has not incurred any attorney's fees; nor has he submitted any evidence showing he incurred any actual expenses as a result of the motion. Kay v. Ehrler, 499 U.S. 432, 435 (1991). Accordingly, his request for sanctions is denied.*fn2

II. Plaintiff's Request to Photograph Wounds

On June 9, 2009, plaintiff requested that the court grant an extension of time to respond to defendants' summary judgment motion so that, with the court's assistance, he could photograph his scars, wounds and lacerations to use as exhibits in his opposition. Dckt. No. 151. Plaintiff makes this request under Fed. R. Civ. P. 35(a).

Rule 35 provides that a court may "order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." But Rule 35 does not give the court authority to appoint an expert to examine a party on his own motion. Brown v. United States, 74 Fed. App'x 611, 614 (7th Cir. August 11, 2003), Adams v. Epps, 2008 WL 4861926 at *1 (S.D. Miss. 2008) ("Rule 35 'does not vest the court with authority to appoint an expert to examine a party wishing an examination of himself.'"). See also Cabrera v. Williams, 2007 WL 2682163 at *2 (D. Neb. Sept 7, 2007) (denying prisoner's request for medical examination under Rule 35); Lindell v. Daley, 2003 WL 23111624 at *1-2 (W.D. Wis. June 30, 2002) (Rule 35 allows the court to ...


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