Joiner v. Corrections CV-93-374-B 2/27/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harry R. Joiner, III

v. No. 93-374-B

Corrections Officer Lawrence Blackwood, et al.

O R D E R

Pending before me are motions by the plaintiff and the

defendants relating to discovery in this civil rights case.

I. DISCUSSION

Defendants move to compel more complete responses to

interrogatories and to compel plaintiff, who is appearing pro se,

to sign and return medical authorizations. Defendants also move

for an extension of time to disclose their expert witnesses.

Plaintiff moves to compel defendants to produce documents as

reguested, for a further postponement of his disclosure of expert

witnesses, for appointment of expert witnesses, and for

appointment of counsel. I address each of the motions beginning

with the plaintiff's motion for appointment of counsel.

A. Plaintiff's Motion for Appointment of Counsel

Plaintiff renews his motion for appointment of counsel to

represent him in this case. The court may ask counsel to represent a plaintiff proceeding in forma pauperis in a civil

case.

(d). Because no absolute constitutional

right to representation in a civil case exists, appointment of

counsel is within the discretion of the court. DesRosiers v.

Moran,

(1st Cir. 1991). Under the particular

circumstances of this case, I determine that appointment of

counsel to represent plaintiff is appropriate.

The plaintiff brings an action for damages under

alleging violations of his rights by a group of defendants

while he was a pretrial detainee at the Valley Street Jail of

Hillsborough County. Following review pursuant to

(d) of the plaintiff's complaint and several successive

amendments, the magistrate concluded that plaintiff stated

colorable claims based on allegations of insufficient procedural

safeguards in several disciplinary proceedings, an unreasonable

strip search, insufficient protection from cold and wet in his

living conditions, punitive restraint systems, and denial of his

right of access to the court. In the course of the proceedings,

the magistrate also has dismissed several of plaintiff's claims

and has dismissed certain defendants including the Hillsborough

County Commissioners.

2 Without passing further on the adequacy of plaintiff's

pleadings, his allegations describe sufficiently serious

mistreatment to require further proceedings. Plaintiff alleges

that he was denied bedding or warm clothing while cold air was

blown into his holding area and when he was denied dry clothing

after the cell fire sprinkler system soaked him. He alleges that

he was injured when he was tied down for a night first strapped

to a "boogie board" and then chained to the floor restricting

circulation to his hands and feet because officers repeatedly

tightened the straps despite his protests and the nurses'

instructions to loosen the straps. He also alleges that jail

staff removed his legal papers from his cell and never returned

them.

The plaintiff is currently incarcerated in Oklahoma. He

represents that the law library is inadequate, that he is unable

to locate or afford expert witnesses to support his claims, and

that he cannot adequately investigate and secure factual support

for his claims through witnesses and other information. He also

explains that he has limited education and understanding of law

and legal procedure. Despite plaintiff's commendable job in

presenting his case so far, I am convinced that exceptional

circumstances now exist justifying appointment of counsel to

3 represent him through the rigors of discovery, the complexities

of preparing and trying a § 1983 case. Accordingly, I exercise

my discretion to appoint counsel on plaintiff's behalf.

Plaintiff's motion to appoint expert witnesses on his

behalf is denied.

B. Plaintiff's and Defendants' Motions to Extend Deadline for Disclosure of Expert Witnesses

All present discovery deadlines are stayed pending

appointment of counsel to represent plaintiff. A pretrial

conference will be scheduled as soon as counsel enters an

appearance on behalf of plaintiff, and new discovery deadlines

will be set at that time. Thus, both plaintiff's and defendants'

motions to extend discovery deadlines are denied as moot.

_____ C . Defendants' Motion to Compel Interrogatory Responses

Defendants object to several of plaintiff's responses to

their interrogatories on the grounds that plaintiff's answers are

incomplete nor nonresponsive. After reviewing plaintiff's

answers specified by defendants, I order plaintiff to review his

answers and to supplement those objected to by the defendants as

necessary to comply with the Federal Rules of Civil Procedure.

See Fed. R. Civ. P. 33(b)(1). See, e.g., Morgan v. Massachusetts

Gen. H o s p .,

(D. Mass. 1989), aff'd in part,

4 vacated in part, remanded,

(1st Cir. 1990).

Rule 33 requires that "[e]ach interrogatory be answered

separately and fully in writing under oath, unless it is objected

to, in which event the objecting party shall state the reasons

for objection and shall answer to the extent the interrogatory is

not objectionable." The scope of discovery, including

interrogatories, is broad:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved int he pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1). When interrogatories ask for

information about the party personally, such as his employment

history, his prior residences, prior incarcerations, and his

medical history or requests for treatment, the response that he

does not have records documenting the requested information is

insufficient. References to allegations in the complaint are

also not sufficient answers to interrogatories. Instead, if the

request is not objectionable, the party shall answer to the

5 extent of his own personal knowledge, including any records

available to him, and explain the limits of his knowledge or

information if necessary. Objections to an interrogatory shall

be stated specifically in the response. Fed. R. Civ. P.

33(b) (4) . See Fed. R. Civ. P. 26(b) (2) .

In light of the standard summarized above for interrogatory

responses, plaintiff shall file supplemental answers to

interrogatories three, four, six, seven, thirteen, nineteen,

twenty, twenty-one, twenty-two, and twenty-three. Interrogatory

fifteen is not clear and apparently confused plaintiff.

Plaintiff is not ordered to supplement his response to

interrogatory fifteen, but defendants may propound a new

interrogatory on that subject if they wish which plaintiff shall

answer. Plaintiff shall sign and return to defendants the

medical authorizations reguested in interrogatory twenty-four or

notify defendants to provide new authorization forms which he

shall sign and return immediately. I also call plaintiff's

attention to New Hampshire Local Rule 1 4 (e) which reguires a

party to supplement certain interrogatory responses.

In interrogatory thirty, defendants ask for a list of all

witnesses whom plaintiff intends to call at trial and asks

plaintiffs to "specify" each witness's expected testimony.

6 Plaintiff responded that he had not yet compiled a list of

witnesses. Plaintiff is ordered to answer interrogatory thirty

directly -- that is, he shall list any witnesses he presently

intends to call to testify at trial and summarize the subject

matter of their expected testimony, or state that he does not

intend to call witnesses at trial. In addition to the

obligations of Local Rule 1 4 (e) noted above, I remind plaintiff

that discovery in this case is scheduled to close on May 1, 1995,

and that he is reguired to submit pretrial materials including a

list of his proposed witnesses by May 15, 1995. See Local Rule

1 0 (a) (1) .

Plaintiff shall serve his supplemental answers on defendants

no later than twenty days after the date of this order.

D. Plaintiff's Motion to Compel Discovery

Finally, plaintiff moves to compel defendants to provide

documents reguested in his previous motion. Defendants

acknowledge that their response was inadeguate having overlooked

the last page of plaintiff's reguest, but they also object to

many of plaintiff's reguests. The scope of discovery under

Federal Rule of Civil Procedure 34 is controlled by Rule 26(b)

guoted above. Therefore, documents that are not privileged, that

are relevant to the suit, and that are within the possession,

7 custody or control of the party requested are discoverable under

Rule 34. I resolve the disputed requests as follows.

1. Requests for Documents Denied

Plaintiff's requests four and five ask for law rather than

for evidence. Also, in qeneral, a party is not entitled to the

trial preparation materials of an adverse party. See Fed. R.

Civ. P. 26(b)(3). In requests nine and ten, plaintiff requests

copies of medical records from the New Hampshire State Prison and

Oklahoma County Jail Facility that are not in the possession,

custody or control of the defendants. See Fed. R. Civ. P. 34(a).

Plaintiff's request thirty-one asks for "[c]opies of any and all

records of E.L.S. . . ." Defendants state that "E.L.S." refers

to an inmate's status and no records are created concerninq an

inmate's status. In requests numbers thirty-two and thirty-

three, plaintiff asks for disciplinary records of another inmate

which defendants contend are confidential and privileqed

information. Accordinqly, plaintiff's motion to compel

production of documents pursuant to his requests numbered four,

five, nine, ten, thirty-one, thirty-two, and thirty three is

denied.

2. Recruests for Documents Granted

The plaintiff's motion to compel production as to the remaining requests is granted subject to the following

limitations. In response to requests numbers seven and thirty-

four, defendants are ordered to redact the identifying

information from the disclosed records. As to request number

eleven, the defendants are ordered to produce all records

concerning any complaints against any defendants that relate to

the defendants' treatment of other inmates and any portions of

records that directly or indirectly concern defendants' treatment

of the plaintiff. Plaintiff's request number twelve asks for a

list of all employees at the Valley Street Jail between January

14, 1992, and March 11, 1993, and defendants object that the

request is overly broad, unduly burdensome, and beyond the

permissible scope of discovery. The time period stated in the

request corresponds to the period when plaintiff alleges that he

was mistreated by the defendants at the jail. Although

plaintiff's request covers a period of more than a year and may

encompass employees who had no connection and no opportunity to

provide information leading to admissible evidence as to the

occurrences he alleges in his complaint, defendants have not

explained why the request is unduly burdensome to them. At a

minimum, defendants must explain the burdensome effect of the

request. Accordingly, the request is granted subject to defendants' further specification of their objection.

II. CONCLUSION

For the foregoing reasons defendants' motion to compel

answers to interrogatories (document number 58) is granted except

as to interrogatory fifteen; defendants' motion to extend

disclosure of experts deadline is denied (document number 61);

plaintiffs' motions for postponement, and to appoint expert

witnesses are denied (document number 62); plaintiff's motion to

appoint counsel is granted (document number 62); plaintiff's

motions to compel discovery are granted in part and denied in

part (documents number 60 and 62).

SO ORDERED.

Paul Barbadoro United States District Judge

February 27, 1995

cc. Harry Joiner, III, Esg. James Walker, Esg. Carolyn Kirby, Esg.

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