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Bostwick v. Corporal Clinton Shoop

November 3, 2010

BARRY ALLEN BOSTWICK, PLAINTIFF,
v.
CORPORAL CLINTON SHOOP, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Smyser

Judge Jones

MEMORANDUM AND ORDER

I. Background and Procedural History

The plaintiff, a prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a complaint on November 10, 2009.

The defendants named in the complaint are 1) Corporal Clinton Shoop; and 2) the Rye Township Police Department.

The plaintiff alleges the following facts in the complaint. On December 11, 2008, defendant Shoop attempted to serve a warrant on the plaintiff at the plaintiff's residence. The plaintiff decided to run from defendant Shoop. Defendant Shoop pursued the plaintiff.

In the course of the pursuit, the plaintiff jumped off a bank into a stream and broke his right leg. When defendant Shoop approached the plaintiff, the plaintiff told him that his leg was badly broken. Defendant Shoop said that he did not care.

Defendant Shoop handcuffed the plaintiff and dragged him out of the stream and up the bank. When the plaintiff was over the bank he was laying across a broken log. The plaintiff pleaded with defendant Shoop not to move him anymore. Defendant Shoop, nevertheless grabbed the plaintiff again and gave him a big pull over the log. The plaintiff's right knee slammed into the log. The plaintiff was crying and hollering at defendant Shoop. Defendant Shoop told him to stop faking it. Defendant Shoop then stood the plaintiff up, pushed the plaintiff toward his car which was 80 yards away and told the plaintiff that he was "going to walk or else." The plaintiff made it ten feet and collapsed to the ground. With the help of a nearby homeowner, defendant Shoop picked the plaintiff up and put him in the front bucket of a skid loader.

An ambulance arrived and took the plaintiff to the hospital. It was determined that the plaintiff's right tibia was broken and that his knee cap had collapsed. The plaintiff subsequently underwent two surgeries. Doctors told the plaintiff that the police officer had injured him further by moving him instead of waiting for emergency personnel to arrive.

The plaintiff claims that the defendant Rye Township Police Department is responsible for the actions of defendant Shoop.

The plaintiff claims that he was subjected to excessive force in violation of the Fourth Amendment and of his right to substantive due process. He also claims that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment.

The plaintiff is seeking compensatory and punitive damages.

By an Order dated December 9, 2009, the plaintiff's complaint as to defendant Rye Township Police Department and the Eighth Amendment and substantive due process claims were dismissed. The only remaining claim is a Fourth Amendment excessive force claim against defendant Shoop.

On January 21, 2010, defendant Shoop filed an answer to the complaint.

On June 23, 2010, the plaintiff filed a motion to compel discovery and a brief in support of that motion. On July 7, 2010, the defendant filed a brief in opposition. The plaintiff has not filed a reply brief.

For the reasons set forth below, we will order that the motion to compel discovery be denied in part and granted in part.

II. Discussion

The scope of discovery is set forth in Fed.R.Civ.P. 26(b)(1). Pursuant to Fed.R.Civ.P. 26(b)(1), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." "For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id.

The discovery rules "are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials." Herbert v. Lando, 441 U.S. 153, 177 (1979). "For purposes of discovery, relevancy is broadly construed." Inventio AG v. Thyssenkrupp Elevator Americas Corp., 662 F.Supp.2d 375, 380 (D.Del. 2009). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).

"Although the scope of discovery is broad, it is not unlimited." Inventio AG, supra, 662 F.Supp.2d at 381. The court must limit the frequency or extent of discovery if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Fed.R.Civ.P. 26(b)(2)(C).

Pursuant to Fed.R.Civ.P. 37(a), a party who has received an evasive or incomplete response to a discovery request may move for an order compelling discovery. "The party seeking the order to compel must demonstrate the relevance of the information sought." Paluch v. Dawson, Civil No. 1:CV-06-01751, 2008 WL 2785638 at *2 (M.D.Pa. July 17, 2008)(Rambo, J.). "The burden then shifts to the opposing party, who must demonstrate in specific terms why a discovery request does not fall within the broad scope of discovery or is otherwise privileged or improper." Id.

In his motion to compel, the plaintiff states that he has not received complete responses from the defendant to his discovery requests, and he asks the court to compel the defendant's production of certain documents and answers to ...


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