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Kates v. Packer

United States District Court, M.D. Pennsylvania

July 21, 2017

DAVID E. KATES, Plaintiff,
v.
C.O. ROBERT PACKER, et al., Defendants.

          CAPUTO, J.

          MEMORANDUM

          JOSEPH F. SAPORITO, JR. United States Magistrate Judge

         This is a fee-paid pro se prisoner civil rights action. At the time of his alleged injury, plaintiff David E. Kates was a prisoner at USP Lewisburg, located in Union County, Pennsylvania. He is currently incarcerated at FCI Forrest City, located in St. Francis County, Arkansas.

         On June 7, 2013, the Court received and filed a pro se complaint against 21 separate defendants in which Kates alleged the violation of his federal constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1; Doc. 2).[1] In the complaint, Kates alleged that, on May 24, 2012, he was severely beaten by several correctional officers, that he was refused appropriate medical care in the days and weeks that followed his alleged beating, and that his rights were further violated in the conduct of a related disciplinary hearing, which resulted in his being sanctioned with the loss of good conduct time.

         On August 25, 2015, we recommended dismissal of the plaintiff's claims for prospective declaratory and injunctive relief as moot, and dismissal of the remainder of his complaint for failure to state a claim upon which relief can be granted. (Doc. 179). On March 29, 2016, the Court adopted our recommendation in part and rejected it in part. (Doc. 186; Doc. 187). What remains are two damages claims under Bivens: (1) an Eighth Amendment excessive force claim against defendants Packer, Wise, Stroud, and Wagner; and (2) an Eighth Amendment failure to protect/intervene claim against defendants Brandt, Packer, Wise, Stroud, Wagner, Booth, and Eroh. (See Doc. 186; Doc. 187). Since then, the parties have been engaged in an extended period of discovery, complicated somewhat by the plaintiff's incarceration and his multiple transfers from one federal correctional institution to another.

         This matter is now before the Court on the plaintiff's Rule 37(a) motion to compel. (Doc. 215). According to the parties' motion papers, the plaintiff has served the defendants with Rule 33 interrogatories and Rule 34 requests for the production of documents, but the defendants have failed to answer the interrogatories or to produce responsive documents to the plaintiff's satisfaction. We address these discovery requests below, seriatim. As explained below, the plaintiff's motion will be granted in part and denied in part.

         A. Interrogatory No. 5

         Interrogatory No. 5 is directed to defendant Stroud, asking him to answer two separate questions: (a) “the name of the other two officers who assisted you [in] escort[ing] Mr. Kates down the range on May 24, 2012”; and (b) “are you aware that another officer on May 24, 2012[, ] stated ‘inmate Collins bit R. Packer” (yes or no). (Doc. 216, at 6).

         The defendants have objected to this interrogatory on the grounds that it is overly broad and vague, explaining that it “is not clear whether [the plaintiff] is requesting information as to staff who escorted him from his cell to the shower area or from the shower area to the new cell assignment.” (Doc. 225-1, at 69). The defendants have further objected that “information regarding escorting officers (memoranda of staff concerning this incident) had been previously provided to Kates . . . and is part of the record.” (Id.).

         Starting with the second objection, we note that, under Rule 33(d), when a response to an interrogatory may be derived from business records and when the burden of deriving the answer from the records is substantially the same for both sides, the production of these business records sufficiently answers the interrogatory. See Fed. R. Civ. P. 33(d). This provision “relat[es] especially to interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer.” Fed.R.Civ.P. 33 advisory committee note (1970). “[I]f an answer is readily available in a more convenient form, Rule 33([d]) should not be used to avoid giving the ready information to a serving party.” Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 226 (10th Cir. 1976). This interrogatory does not seek information that should require the defendants to engage in burdensome research or analysis of their business records to answer. It seeks information readily available to defendant Stroud from his personal knowledge-the names of two other officers who assisted him in escorting the plaintiff on May 24, 2012, and whether defendant Stroud is personally aware that another officer stated that inmate Collins, the plaintiff's cellmate, bit defendant Packer.

         Moreover, we find the interrogatory neither unreasonably vague nor overly broad. Kates's surviving claims concern the alleged use of excessive force in an unmonitored area while being escorted from his original cell to the shower area. In context, it is clear that the interrogatory concerns that leg of Kates's movements under escort that day. The defendants' objection provides no basis for their failure to answer and identify the other two officers who joined defendant Stroud in escorting Kates from his original cell to the shower area. To the extent the defendants believe it necessary to clarify this distinction-between the first leg of Kates's movements under escort, from original cell to shower area, and his second leg, from shower area to new cell-they were, and remain, free to qualify Stroud's answer to this interrogatory. See Pulsecard, Inc. v. Discover Card Servs., Inc., No. CIV. A. 94-2304-EEO, 1996 WL 397567, at *8 (D. Kan. July 11, 1996) (“Plaintiff may determine whether to qualify its answer. The possibility of qualification does not, however, make the interrogatory objectionable. Fed.R.Civ.P. 33(b)([3]) contemplates the possibility of qualification. It directs parties to answer interrogatories to the extent they are not objectionable.”).

         Accordingly, the defendants' objections to Interrogatory No. 5 will be overruled, the motion will be granted with respect to this interrogatory, and defendant Stroud will be directed to answer both parts of this interrogatory, identifying the other two officers who assisted in escorting Kates from his cell to the shower area on May 24, 2012, and stating whether he is aware that another officer stated that inmate Collins bit defendant Packer.

         B. Interrogatory No. 7

         Interrogatory No. 7 is directed to defendants Wagner and Stroud, asking each respectively to answer one of two unrelated questions: (a) “the name of the second officer who was alle[ged]ly bit[t]en by Mr. Kates, ” directed to Wagner; and (b) “what body part on Mr. Kates [did] you assi[s]t[] in controlling on May 24, 2012, ” directed to Stroud. (Doc. 216, at 6).

         The defendants have objected to this interrogatory on the grounds that it is vague and a compound question, explaining that the “two separate requests/statements in [this interrogatory] make it confusing to determine what is being requested.” (Doc. 225-1, at 70). The defendants have further objected that “information regarding all memoranda of staff and incident reports regarding this incident have been provided to Kates and are part of the record, ” and advised that “[s]taff injury assessments are attached for Kates'[s] convenience.” (Id.).[2]

         As noted above, under Rule 33(d), reference to business records in lieu of a straightforward answer to an interrogatory is generally reserved for “interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer.” See Fed. R. Civ. P. 33(d) & advisory committee note (1970). “[I]f an answer is readily available in a more convenient form, Rule 33([d]) should not be used to avoid giving the ready information to a serving party.” Daiflon, Inc., 534 F.2d at 226. This interrogatory does not seek information that should require the defendants to engage in burdensome research or analysis of their business records to answer. It seeks information readily available to defendants Wagner and Stroud from their personal knowledge-from Wagner, the name of a second officer who was allegedly bitten by Kates, and from Stroud, the part of Kates's body over which Stroud exercised control during his movement from his original cell to the shower area on May 24, 2012.

         The defendants object that this interrogatory poses a compound question, but the mere fact that an interrogatory addresses multiple topics does not render it unduly burdensome. See Parks, LLC v. Tyson Foods, Inc., No. 5:15-cv-00946, 2015 WL 5042918, at *5 n.3 (E.D. Pa. Aug. 26, 2015) (“Rule 33(a)(1) provides that a ‘discrete subpart' of an interrogatory counts separately toward the twenty-five interrogatory limit imposed by the Rule, but the Rule does not require an interrogatory that contains multiple parts to separately identify each part.”).

When Rule 33(a) was amended to limit the number of interrogatories that can be propounded, the draftsmen appreciated that the numerical restriction could be evaded by “joining as ‘subparts' questions that seek information about discrete separate subjects.” Fed.R.Civ.P. 33 advisory committee's note [(1993)]. Therefore, the numerical limitation in the rule is stated as “not exceeding 25 in number including all discrete subparts.” Fed.R.Civ.P. 33(a).

Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004). As we have recently held, “a subpart is discrete and regarded as a separate interrogatory when it is logically or factually independent of the question posed by the basic interrogatory.” Pulchalski v. Franklin Cty., CIVIL NO. 15-CV-1365, 2017 WL 57143, at *4 (M.D. Pa. Jan. 5, 2017) (quoting another source) (brackets omitted). The two parts to Kates's Interrogatory No. 7 are clearly discrete subparts, and thus this interrogatory should be counted as two for the purpose of the 25-interrogatory limit. But there is no suggestion in the record before the Court that construing Interrogatory No. 7 in this manner would cause Kates to exceed the 25-interrogatory limit, and our own review of the full set of interrogatories propounded by Kates suggests that he is well within the limit even if all discrete subparts are counted separately. (See Doc. 216).

         Nor do we find the interrogatory to be unreasonably vague. Although it poses two separate questions to two separate defendants, it is clear what information Kates seeks from each. From defendant Wagner, Kates seeks to identify a second officer who was allegedly bitten by Kates, and from defendant Stroud, Kates seeks to identify the body part of his over which ...


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