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Michael Tyrone Mccullon v. Thomas Brouse

July 25, 2011


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

(Judge Kosik)


This a pro se lawsuit that was first brought by a federal prisoner, Tyrone McCullon, through the filing of a civil rights complaint on July 27, 2010, (Doc. 1), which he subsequently amended on August 23, 2010, (Doc. 14) and December 3, 2010. (Doc. 36) In these complaints, McCullon alleged that prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment by employing excessive force against him during, and after, an August19, 2009, affray at the Lewisburg Federal Penitentiary. (Id.)

This matter comes before us for resolution of several discovery motions. Specifically, McCullon has filed two discovery motions: a motion to compel responses to interrogatories (Doc. 82); and a motion for leave to file written deposition questions of various parties and prison officials. (Doc. 81) With respect to these two discovery motions, the defendants have now responded, providing the following information regarding the plaintiff's motion to compel (Doc. 82): According to the defendants, McCullon filed the Plaintiff's First Set of Interrogatories to Defendants on May 13, 2011, (Doc. 79), but never served these interrogatories upon defendants as is required by Fed.R.Civ.P. 5 and 33. This set of interrogatories contains questions that are directed only to defendant Brouse. (Doc. 79) While the defendants contend that they were never properly served with this set of interrogatories, defendant Brouse responded to the discovery request on June 8, 2011. McCullon acknowledges receiving this discovery response on June 28, 2011. ( Doc. 82)

In addition, defendants allege that McCullon served a request for production of documents upon defendant Brouse on July 6, 2011, and upon the remaining defendants on July 11, 2011. McCullon has also filed with the Court interrogatories directed to defendants E. Stuart, A. Sassaman and R. Johnson. (Docs. 83, 84, 85.) Although these interrogatories were not been properly served, defense counsel represents that he is currently working with agency counsel to obtain timely responses from the defendants to these remaining interrogatories and requests for production of documents.

As for McCullon's request to submit depositions by written questions, the defendants object to this request to the extent that McCullon seeks to depose Director Lappin and Attorney General Holder, arguing that Holder and Lappin are not parties to this action, and have no knowledge about the incident of August 19, 2009. Defendants do not object to allowing McCullon to conduct the depositions of the named defendants by written question, consistent with the requirements of Fed. R.Civ.P. 31. However, defendants reserve the right to object to any questions that exceed the scope of discovery as set forth in Fed.R.Civ.P. 26(b).

Having received these responses from the defendants, for the reasons set forth below McCullon's requests will be dismissed, in part, as moot, denied, in part, and granted, in part.

II. Discussion

Several basic guiding principles inform our resolution of the instant discovery dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery, and provides that:

(a) Motion for an Order Compelling Disclosure or Discovery

(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. . ..

Fed.R.Civ.P. 37(a).

The scope of what type of discovery may be compelled under Rule 37 is defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provides as follows:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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. Relevant information need not be admissible at trial if the discovery ...

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