United States District Court, W.D. Oklahoma
CHARLES L. MOORE III, Plaintiff,
LT. PANTOJA et al., Defendants.
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the pro se Plaintiff's
amended motion to compel discovery responses and his second
motion for an extension of time to respond to Defendant
Pantoja's amended motion for summary judgment. Pl.'s
Am. Mot. to Compel (Doc. No. 52); Pl.'s Second Mot. for
Extension of Time (Doc. No. 59).
motion to compel, Plaintiff asserts that Defendant Pantoja,
who is the sole remaining defendant in this case, has failed
to “directly and fully” answer ten of the
fourteen interrogatories that Plaintiff attached to his
motion. Pl.'s Am. Mot. to Compel at 1-2 (citing
Interrogatories 1-6 and 8-11). On March 10, 2017, the Court
ordered Defendant Pantoja to respond to Plaintiff's
discovery motion within ten days, and stayed Plaintiff's
impending deadline to respond to Defendant Pantoja's
dispositive motion. Order of Mar. 10, 2017 (Doc. No. 57) at
1. Defendant Pantoja timely filed a response in which he
objects that Plaintiff's motion seeks “discovery on
information that has . . . already been provided via the
Special Report”; “is not relevant to the
[action's] subject matter”; or “will not
aid” Plaintiff in responding to Defendant's motion
for summary judgment, which includes Defendant's
assertion that he is entitled to qualified immunity on
Plaintiff's Eighth Amendment excessive-force claim.
Def.'s Resp. (Doc. No. 58) at 2-3; see also Id.
at 2 (Defendant Pantoja noting that the parties were supposed
to complete discovery by December 8, 2016, and that he
“sent responses to Plaintiff's discovery requests,
including proper responses and objections, ” within 30
days after Plaintiff mailed those requests on December 5,
has submitted copies of the Interrogatories that he asserts
Defendant failed to properly answer, see Pl.'s
Am. Mot. to Compel Ex. 1 (Doc. No. 56-1) at 1-3, but neither
Plaintiff nor Defendant has submitted a copy of
Defendant's actual responses. The Court therefore reviews
the Motion based on the summaries of Defendant's answers
and objections as provided by the parties. The Court finds
that none of the information sought in Interrogatories Nos.
1, 2, 3, 4, 5, 9, and 11 is relevant to Plaintiff's sole
remaining claim, which is based on alleged excessive force by
Defendant. In Interrogatory No. 6, Plaintiff requests the
names of “staff [who] were present in the A3 pod”
during the cell search that preceded the alleged use of
excessive force. Id. at 1. In Interrogatory No. 8,
Plaintiff requests the names of inmates and staff who were
interviewed regarding the events at issue in the course of
ODOC's preparation of the Special Report. Id. at
2. Both of these interrogatories seek identification of
persons who reasonably may have witnessed acts or
circumstances relevant to Plaintiff's remaining claim,
which is discoverable information. And while the Special
Report identifies some of these persons, it is not apparent
that all such persons have been named. In Interrogatory No.
10, Plaintiff asks whether Defendant during the cell search
“touch[ed] Plaintiff's naked right buttock with
boxers.” Id. Such information is arguably
relevant to the alleged excessive force incident following
the cell search. Moreover, although Defendant has now
asserted qualified immunity, allowing “limited
discovery” is appropriate because Defendant's
“characterization of his actions differ from the
[P]laintiff's characterization of those actions.”
Rome v. Romero, 225 F.R.D. 640, 643-44 (D. Colo.
2004) (citing Crawford-El v. Britton, 523 U.S. 574,
593 n.14 (1998)).
Plaintiff's Motion to Compel is GRANTED in part and
DENIED in part. Defendant shall respond to Interrogatories
Nos. 6, 8, and 10 consistent with the discussion above within
ten days of the date of this Order. No further action is
required of Defendant as to Interrogatories Nos. 1, 2, 3, 4,
5, 9, and 11.
for Extension of Time
Plaintiff broadly alleges that “all of the discovery is
germane to the instant action, ” Plaintiff does not
assert that he needs Defendant Pantoja's sworn answer to
any specific interrogatory in order to meaningfully respond
to Defendant's motion for summary judgment. Pl.'s Am.
Mot. to Compel at 2; see Fed. R. Civ. P. 33(b),
56(c)-(e). Moreover, despite the stay, Plaintiff has now
responded on the merits to Defendant Pantoja's motion for
summary judgment. Pl.'s Resp. to Def.'s Am. Mot. for
Summ. J. (Doc. No. 60) at 1-3; see Def.'s Reply
(Doc. No. 61) at 1-4. Plaintiff's “response brief
[does] not allude to the motion to compel” or otherwise
explain his “purported need for the evidence [he]
sought to compel.” Naifeh v. Ideal Homes of Norman,
L.P., 260 F. App'x 122, 124 (10th Cir. 2008);
see Pl.'s Resp. to Def.'s Am. Mot. for Summ.
J. at 1-3; see also Pl.'s Second Mot. for
Extension of Time at 1 (Plaintiff stating that he needs one
additional week to respond to Defendant Pantoja's motion
for summary judgment because the law library was closed for
ten days). Plaintiff also has not attempted to “show
by affidavit or declaration, that for specified reasons, [he]
cannot present facts essential to justify [his]
opposition” to Defendant Pantoja's motion for
summary judgment without the requested discovery.
Fed.R.Civ.P. 56(d); cf. Douglass v. United Auto Workers
Local Union 31, 188 F. App'x 656, 659 (10th Cir.
2006) (finding no error where district court granted summary
judgment in defendants' favor without resolving the pro
se plaintiffs non-specific discovery motion).
asserted fact that Plaintiff says he “does not have
sufficient information” to respond to concerns the
amount of pepper spray that Defendant Pantoja allegedly used
against Plaintiff on November 24, 2014. See
Pl.'s Resp. to Def's Am. Mot. for Summ. J. at 1
¶ 2; Def's Am. Mot. for Summ. J. (Doc. No. 49) at 9
¶ 5 (“[T]he amount of pepper spray used on
Plaintiff was determined to be ten (10) grams from one (1)
122-gram can.”). But Plaintiff did not submit any
interrogatories asking about pepper spray. See
Pl.'s Am. Mot. to Compel at 1-2; Pl.'s Am. Mot. to
Compel Ex. 1, at 1-3.
Plaintiff's second motion for an extension of time (Doc.
No. 59) is DENIED as moot and the limited stay ...