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Alex v. Wetzel

United States District Court, M.D. Pennsylvania

February 2, 2015

ANTHONY JOSEPH ALEX, I, Plaintiff
v.
JOHN E. WETZEL, et al., Defendants.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

The pro se plaintiff, Anthony Joseph Alex, I, has filed the following three motions: (1) a motion to compel (Doc. 42); (2) another motion to compel (Doc. 48); and (3) a motion (Doc. 65) seeking the disposition of the motions to compel and the defendants' pending motion for summary judgment. After consideration of the motions, they will be granted in part and denied in part.

II. Standard of Review

Fed. R. Civ. P. 37(a) allows a party to file a motion to compel discovery when the opposing party fails to respond adequately to a document request propounded pursuant to Fed.R.Civ.P. 34. Fed.R.Civ.P. 37(a)(3)(B)(iv). Pursuant to Fed.R.Civ.P. 26(b)(1), a party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Relevant information sought in discovery need not be admissible at trial, as long as it "appears reasonably calculated to lead to the discovery of admissible evidence." ( Id. ) Relevance is generally "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Funds, Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978).

While generally liberal, permissible discovery is not without limitations; it "should not serve as a fishing expedition." Provine v. Ambulatory Health Services, Inc., No. 13CV-334, 2014 WL 47771, at *2 (M.D. Pa. Jan. 6, 2014). It is well established that the scope and conduct of discovery are within the sound discretion of the trial court. In re Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003). "Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court's discretion and judgment." McConnell v. Canadian Pacific Realty Co., 280 F.R.D. 188, 192 (M.D. Pa. 2011). A court's decision regarding the conduct of discovery will be disturbed only upon a showing of an abuse of discretion. Ohntrup v. Makina Ve Kimya Endustrisi Kurumu, 760 F.3d 290, 296 (3d Cir. 2014).

III. Relevant Statement of Facts

The only claim left in this action is against defendant, J. Bognatz, for retaliation, and asserts that Counselor Bognatz issued Alex a misconduct in retaliation for going over her head and questioning her supervisor regarding Bognatz's denial of a transfer request. For the limited purpose of addressing Alex's motions to compel the following facts from the Complaint and its attachments are noted.

Alex has an indecent-assault conviction. Alex is alleged to have telephoned the victim of that offense, his daughter, on September 3, 2012. On September 24, 2012, Bognatz issued Alex misconduct B089540 and charged him with two Class I offenses related to that phone call: refusing to obey an order and unauthorized use of mail or telephone. The misconduct report noted that the "date of the report differs from the date of incident due to investigation. Attached are: Authorized Phone List; Cumulative Reports; Request for Correspondence." (Doc. 1-3, ECF p. 8).

After receiving the misconduct, but before his misconduct hearing, Alex called his family and asked that they overnight letters to him affirming that he did not speak with his daughter on September 3, 2012, when he called the Fromville home. (Doc. 1-3, ECF p. 24).

On September 28, 2012, following a misconduct hearing, the Hearing Examiner found "the report of [Ms. Bognatz] more credible than Alex's denial, " and found him guilty on both charges. ( Id. ) As a sanction, Alex was sentenced to 90 days' disciplinary custody and his telephone privileges were suspended for 180 days.

On October 2, 2012, Alex filed a misconduct hearing appeal with the Program Review Committee (PRC). ( Id., ECF p. 16). On October 10, 2012, after "the Security Office reviewed the telephone call and determined that Alex did not speak with his victim... the Program Review Committee [dismissed the] misconduct and prohibit[ed its] recharge."

On October 24, 2012, Alex filed grievance number 422806. In his grievance, Alex stated that he received the false misconduct in "retaliation for [his] pushing for a transfer."[1] ( Id., p. 28).

In support of his motions to compel, Alex has filed several declarations as well as copies of his discovery requests and defendant's responses. See Docs. 42, 45-48. Alex's declarations detail a series of alleged retaliatory events that have transpired since he filed this action. He claims non-defendant prison employees retaliated against him for filing this lawsuit by unjustly placing him in the institution's Restricted Housing Unit (RHU) on February 6, 2013, and then planting ...


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