The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
By order, filed on October 25, 2011, this court vacated the filing date of plaintiff's then pending motion to compel discovery as amended and deemed the amended motion as plaintiff's notice of motion, filed on October 25, 2011, pursuant to L.R. 251(a). See docket # 54. Discovery was re-opened for the limited purpose of adjudicating this motion and defendants' counsel was directed to meet and confer with plaintiff to resolve discovery disagreements, and if matters remained unresolved, to submit a joint statement re: discovery disagreement, per L.R. 251(c), within twenty-one days. See, id. Defendants' counsel submitted a joint statement timely, evidently following a telephonic meet-and-confer with plaintiff. See docket # 57. Plaintiff's Allegations
Plaintiff now proceeds against defendants Correctional Officer (C/O) Beyer; C/O Carter; and Correctional Sergeant Fowler in the remaining allegations of the first amended complaint. On April 29, 2009, defendant C/O Beyer ordered plaintiff to pack his property for a move to a different housing unit despite plaintiff's explanation to him that he had physical limitations and qualifying disabilities under the Americans With Disabilities Act (ADA) and that he had been ordered by the chief medical officer not to lift more than two pounds. First Amended Complaint (FAC), p. 3. Plaintiff tried to move several boxes to show defendant Beyer the chrono showing he had had recent surgery on the ulnar nerve in his left hand, which had caused atrophy of the muscle. Id. In doing so, he re-injured his ulnar nerve causing extreme pain and more muscle atrophy. Id. at 4. Plaintiff asked to speak to a lieutenant or sergeant; instead, defendant Beyer hand-cuffed him, placed him in Administrative Segregation and issued false misconduct charges against him alleging he was delaying a peace officer and refusing to move. Id., at 3-4, 15, 25-29.
Plaintiff claims that the day before, on April 28, 2010, defendant C/O Carter had made false allegations against him (plaintiff) to defendant Corr. Sgt. Fowler which had led to defendant Fowler's threatening to move plaintiff if he were disrespectful toward any C/O. FAC, p. 4. Defendant Carter accused plaintiff of "snitching on the C/O's" by writing inmate grievances and Men's Advisory Council (MAC) Reports to the associate warden. Id. Plaintiff therefore alleges retaliation against him by these three defendants for his grievances, resulting in false disciplinary charges in violation of his First Amendment rights. Id. He also alleges that defendant Beyer violated his rights under the ADA. Id., at 4-5. Plaintiff seeks injunctive relief and money damages. Id., at 11.
Motion to Compel- Joint Statement
As correctly identified in the joint statement, plaintiff's motion to compel is directed to each defendant's responses to plaintiff's requests for admissions, interrogatories, requests for production of documents and to defendants' failure to respond to plaintiff's deposition of defendants by written questions. Joint Statement (JS), p. 2.
Defendant Beyer As to defendant Beyer, plaintiff propounded twelve requests for admission upon him. JS, p. 2, Attachment 1. Although it is posited by counsel that defendant denied each request and stands by each denial, as to request for admission (RFA) no. 7, it appears that the defendant, objecting on the basis that the request was compound, actually denied and admitted different portions. Id. As to RFA no. 9, defendant Beyer does not admit or deny having thrown plaintiff's property, including legal documents, into the trash, but avers that he cannot recall, recounting his custom and practice as being only to throw away contraband. Id. The court will deem this response a denial. With those caveats, the court's review demonstrates that, notwithstanding objections raised as to some requests, defendant Beyer expressly denied each of the other requests. Id.
Although plaintiff does not believe that defendant Beyer's denials are truthful and that they contradict statements this defendant made at plaintiff's disciplinary hearing (which gives rise to the gravamen of plaintiff's claims against this defendant), the court cannot compel a further response. Attachment no. 13 is a copy of the disciplinary hearing at issue and it is not readily apparent that defendant Beyer's responses to the RFA contradicts his testimony there. Plaintiff may seek to impeach this defendant in any declaration or testimony he offers with any perceived contradictions; however, since it is evident that defendant Beyer stands by his responses, the court cannot compel any further response from him as to the requests for admission.
Plaintiff propounded eight requests for admission upon defendant Carter. JS, p. 2, Attachment 4. The court's review shows that as to RFA nos. 1, 2, 3, 6, defendant Carter asserts that he "lacks sufficient knowledge or information to admit or deny this request."
RFA no. 1: You did have an encounter or confrontation with the plaintiff Harpool on or about April 27, 2009 and/or April 28, 2009?
RFA no. 2: On or about April 27, 2009 and/or April 28, 2009, you was [sic] never disrespected by the plaintiff Harpool?
RFA no. 3: On April 27th and/or April 28, 2009, you did contact defendant Fowler via institutional telephone and ask for guidance, instruction for a confrontation you had with plaintiff Harpool? RFA no. 6: On April 27th and/or April 28, 2009, you did contact defendant Fowler who came and spoke with you about the log book that a [sic] inmate was keeping concerning the yard/dayroom releases?
As to each of these RFA, the response is simply "responding party lacks sufficient knowledge or information to admit or deny this request for admission."
Fed. R. Civ. P. 36(a)(4) states, in relevant part:
An answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can ...