Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nunez v. Lindsay

July 11, 2008

GERSON NUNEZ, PLAINTIFF
v.
WARDEN CAMERON LINDSAY, DEFENDANT



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

I. Introduction

Presently before the Court are Plaintiff's Motion and Demand for Copies (Dkt. Entry 168), and his Motion to Compel Discovery (Dkt. Entry 169). For the reasons set forth below, Plaintiff's motion for copies will be denied and the motion to compel will be granted in part.

II. Background

On August 30, 2005, Gerson Nunez, a federal prisoner currently incarcerated at the Canaan Federal Prison Camp ("FPC-Canaan"), in Waymart, Pennsylvania, initiated the present action. On November 8, 2006, the Court granted in part, and denied in part, Defendants' Motion for Summary Judgment. (Dkt. Entry 105.) The two remaining claims in this case relate to: (1) Nunez's alleged retaliatory discharge from his prison job; and (2) the alleged improper opening of his legal mail outside of his presence. (Id.)

On January 14, 2008, the Court resolved Nunez's First Motion to Compel. In that motion, Nunez alleged he properly served defense counsel with discovery requests which went unanswered. (DKt. Entry 149.) Defense counsel, claiming to be unaware of the discovery requests prior to the filing of the motion to compel, agreed to answer the discovery if Nunez re-served the requests. Based on this agreement the Court denied the motion. (See Dkt. Entry 161.) Nunez's present motion to compel challenges defendants' responses to his first set of discovery. He alleges that: (1) defendants refused to answer more than 25 interrogatories each even though the Middle District's former Local Rule 402.8 permitted more; (2) defendants Nicklin, Renda, Roberts, Mecca and Broton have failed to properly respond to Interrogatories 2, 3, 4, 5, 8 through 16, and 20 through 25; and (3) defendants' response to his first request for production of documents is inadequate. Nunez's second pending motion asserts that he did not receive copies of defendants' motion for a protective order or their motion to dismiss.

III. Discovery Overview

Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. See Fed. R. Civ. P. 37(a)(1), (3) and (4). Pursuant to Rule 33, an interrogatory may relate to any matter that may be inquired into under Rule 26(b). See Fed. R. Civ. P. 33(a)(2).

The polestar of discovery is relevance. Federal Rule of Civil Procedure 26(b)(1) establishes the general scope of discovery and states in pertinent part that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

IV. Discussion

A. Motion for Relief and Demand for Copies of Defendants' Recent Filing with the Court

Defendants Watts, Dodrill, Lindsay, Roberts, Nicklin, Broton and Mecca filed their Motion to Dismiss and supporting brief on February 13, 2008. (Dkt. Entries 162 and 163.) On the same day, defendants served Nunez with responses to his First Request for Production of Documents, and eight sets of interrogatories. Defendants simultaneously sought a Motion for Protective Order to stay the obligation to respond to further discovery pending the resolution of their Motion to Dismiss. Finding the motion sound, the Court granted it on February 14, 2008. (Dkt. Entry 167.) Nunez does not suggest that he did not receive this Court's order granting that motion. Plaintiff did not seek reconsideration of that motion.

Although Plaintiff avers he never received a copy of defendants' motion to dismiss or their motion for a protective order, each document contains the appropriate certificate of service indicating Plaintiff was properly served. Nonetheless, Nunez acknowledges in subsequent filings that he did eventually receive copies of both motions. (See Dkt. Entry 170, Plaintiff's Opposition to Defendants Motion to Dismiss, fn. 1.) Therefore, as Nunez now ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.