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Pelino v. Gilmore

United States District Court, W.D. Pennsylvania

December 6, 2019

VITO A. PELINO, Plaintiff,
v.
ROBERT GILMORE, MICHAEL ZAKEN, and STEPHEN DURCO, Defendants.

          David Stewart Cercone Judge.

          MEMORANDUM ORDER RE: ECF NOS. 75, 76, 77, 79, 81 AND 82

          MAUREEN R. KELLY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Vito A. Pelino ("Plaintiff") brings this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983. ECF No. 3. Plaintiff is incarcerated at the State Correctional Institution at Greene ("SCI-Greene"), and he asserts claims against three SCI-Greene employees. Plaintiff alleges that Defendants violated his Fourth Amendment right to bodily privacy through SCI-Greene's policy of video-recording strip searches.

         Presently before the Court are six Motions for an Order Compelling Discovery ("Motions to Compel Discovery") filed by Plaintiff and Defendants' responses thereto. ECF Nos. 75, 76, 77, 79, 81, 82, 83 and 90. For the reasons set forth below, Plaintiffs Motions to Compel at ECF Nos. 75 and 76 are denied as moot. Plaintiffs Motion to Compel at ECF No. 77 is granted to the extent Defendants are ordered to provide responses to Plaintiffs First Request for Production of Electronically Stored Information on or before December 16, 2019. Plaintiffs Motions to Compel at ECF Nos. 79, 81 and 82 are denied.

         I. RELEVANT PROCEDURAL HISTORY

         Plaintiffs Complaint was filed on September 21, 2018, and he later filed the operative Amended Complaint on January 7, 2019. ECF Nos. 3, 39. In his Amended Complaint, Plaintiff claims that Defendants violated his Fourth Amendment rights by "implementing] a policy of video-recording strip searches of inmates going to, and coming from contact visits, and while using the bathroom." ECF No. 39 ¶ 8. Plaintiff alleges that inmates are subjected to strip searches "with their genitals and private parts in full view of a 360 degree ceiling camera every time they wish to have contact visits, or use the bathroom during visits." Id. ¶ 12. These recordings are stored and "viewed at all times by SCI-Greene's security staff," which includes prison officials not present during the search and individuals if the opposite sex." Id. ¶ 13.

         On January 25, 2019, Defendants moved to dismiss Plaintiffs Amended Complaint. Defendants argued that Plaintiffs claims should be dismissed because the searches are reasonable under the standard set forth in Bell v. Wolfish, 441 U.S. 520, 558 (1979), and therefore do not violate Plaintiffs Fourth Amendment rights. ECF No. 41. In support of their Motion, Defendants relied in part on a declaration from Defendant Michael Zaken (the "Zaken Declaration"). Zaken identified various precautions that SCI-Greene officials purportedly have taken to ensure that inmates' private areas are not recorded during strip searches and to limit the circumstances in which the videos are viewed. Id. at 8. The Zaken Declaration that Defendants filed is partially redacted. ECF No. 22-1.

         On July 24, 2019, the Court issued a Report and Recommendation which recommended that the Motion to Dismiss be denied. The Court concluded that "Plaintiffs allegations that nude images of Plaintiff are recorded and stored for an unknown amount of time, are viewed by various prison officials, including officials of the opposite sex, and that this policy was imposed for retaliatory purposes, raise questions of fact at this early stage." ECF No. 56. United States District Judge David S. Cercone adopted the Report and Recommendation on July 29, 2019. ECF No. 58.

         On August 26, 2019, the Court issued a case management order allowing a period for discovery until January 1, 2020. Since the commencement of the discovery period, Plaintiff has filed six Motions to Compel Discovery. ECF Nos. 75, 76, 77, 79, 81 and 82. Defendants filed responses in opposition to these Motions. ECF Nos. 83, 90. We will address each Motion separately.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 26(b)(1) defines the permissible scope of discovery as follows:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         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. It has long been held that decisions relating to the scope of discovery permitted under Rule 26 also rest in the sound discretion of the Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). A party moving to compel discovery bears the initial burden of proving the relevance of the requested information. Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001). Once that initial burden is met, "the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure." In re Urethane Antitrust Litig., 261 F.R.D. 570, 573 (D. Kan. 2009).

         III. DISCUSSION

         A. Motions to Compel Discovery (ECF Nos. 75 and 76)

         In the Motions to Compel Discovery filed at ECF Nos. 75 and 76, Plaintiff requests that the Court compel Defendants to respond to Plaintiffs First Set of Interrogatories and First Request for the Production of Documents and seeks reasonable expenses for bringing these Motions. On October 24, 2019, Plaintiff submitted a supplemental filing notifying the Court that he has since received responses to these discovery requests and therefore asks the Court to "disregard" these Motions. ECF No. 80. Accordingly, the Motions to Compel Discovery at ECF Nos. 75 and 76 are denied as moot.

         B. Motion to Compel Discovery (ECF No. 77)

         In the Motion to Compel Discovery filed at ECF No. 77, Plaintiff requests an order compelling Defendants to respond to Plaintiffs First Request for Production of Electronically Stored Information ("ESI Requests"). Plaintiff seeks the production by Defendants Zaken and/or Gilmore of video surveillance of the visiting strip-search room at four specified dates and times. ECF No. 77-1. On October 24, 2019, Plaintiff submitted a supplemental filing notifying the Court that Defendants have since responded to other discovery requests that Plaintiff propounded, but that Defendants' responses to the ESI Requests remained outstanding. ECF No. 80 ¶¶ 3, 6.

         Although Defendants claim they have already responded to these requests, the citations they provide the Court do not support this proposition. In their Brief in Opposition, Defendants refer the Court to Plaintiffs admission that he received some discovery responses in his supplemental filing, ECF No. 80, but Plaintiff specifically denies receiving responses to the ESI Requests in the document that Defendants cite. See ECF No. 83 ¶ 10; ECF No. 80 ¶¶ 3, 6 (noting that, on October 15, 2019, Plaintiff received responses!to "all discovery requests except for the production of electronically stored information, which to date, has not yet been responded to"). Defendants further cite to their discovery responses docketed at ECF Nos. 79-1, 79-2, and 81-2- none of which are Defendants' responses to the ESI Requests. ECF No. 83 ¶ 12. As a result, it is unclear if Defendants have provided responses to the ESI Requests in compliance with Federal Rule of Civil Procedure 34.

         The Court therefore grants Plaintiffs Motion to Compel Discovery, ECF No. 77, to the extent that Defendants Zaken and Gilmore are hereby ordered to specifically respond to the ESI Requests on or before December 20, 2019. With respect to Plaintiffs request for $32.20 in expenses for obtaining this Order, [1] this request is denied. Plaintiff has not identified reasonable efforts taken to obtain this discovery prior to seeking Court intervention, and Plaintiff admits in other filings that he was granted access to view any available videos that he requested. See Fed. R. Civ. 37(a)(5)(A)(i) and (ii); ECF No. 86.

         C. Motion to Compel ...


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