The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Judge
Stephen C. Belcher ("Plaintiff"), an inmate presently confined at the Federal Medical Center, Lexington, Kentucky ("FMC-Lexington") filed this pro se civil action. The remaining Defendant is the United States of America.
By Memorandum and Order dated January 26, 2005, Plaintiff's amended complaint was construed as a combined civil rights/Federal Tort Claims Act (FTCA) action and Defendants' motion to dismiss or in the alternative for summary judgment was partially granted. Specifically, Belcher's civil rights allegations were dismissed for failure to exhaust administrative remedies and as being time barred. However, the FTCA portion of Plaintiff's amended complaint was permitted to proceed and the United States of America was deemed the sole remaining Defendant.
In his amended complaint (Record document no. 13) Plaintiff states that during December, 2000, he was placed in the USP-Lewisburg Special Housing Unit (SHU) on the grounds that there was "an immediate threat to the Plaintiff's safety." See Record document no. 13, ¶ 13. On December 26, 2000, Belcher was physically assaulted by fellow inmate Robert Dorsey in the SHU shower room.
Dorsey allegedly struck Plaintiff with his metal prosthetic arm causing a fracture to the orbital bone of Belcher's right eye and permanent damage to the optic nerve.*fn1 The amended complaint alleges that Defendants "had the necessary information and knowledge to prevent the attack that took place." Id. at ¶ 20. However, they purportedly conspired to "create a situation where a violent predator was left unsupervised." Id. at p. 7, ¶ 5.
Belcher concludes that his injury was the result of "gross negligence." Id. at p. 7. Furthermore, the Defendants' alleged negligent conduct was purportedly the proximate cause of his injuries. The amended complaint also sets forth the procedural history of his unsuccessful administrative FTCA claim.
Presently pending is the remaining Defendant's motion to compel discovery. The motion asserts that Belcher has failed to provide full responses to the Defendant's request for production of documents. Specifically, it is alleged that Belcher has not provided an expert report from Doctor Atkins, who has been identified by Plaintiff as being his expert witness. Other documents previously referenced by the Plaintiff which were purportedly requested but not produced are:
(1) a Bureau of Prisons memorandum concerning shower protocol in the SHU; (2) a signed witness statement; and (3) documents stating that Belcher was determined to be totally disabled while confined at FCI-Ray Brook.*fn2 Plaintiff's response to the motion indicates that he has been unable to fully participate in the discovery process due to his illness and recent surgeries. See Record document no. 61.
Federal Rule of Civil Procedure 26 provides in relevant part as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the 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.
The frequency or extent of use of the discovery methods . . . shall be limited by the court if it determines that: (I) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the ...