United States District Court, W.D. Pennsylvania
VITO A. PELINO, Plaintiff,
ROBERT GILMORE, MICHAEL ZAKEN, and STEPHEN DURCO, Defendants.
Stewart Cercone Judge.
MEMORANDUM ORDER RE: ECF NOS. 75, 76, 77, 79, 81 AND
MAUREEN R. KELLY UNITED STATES MAGISTRATE JUDGE
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.
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
RELEVANT PROCEDURAL HISTORY
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.
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.
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.
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
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
Fed. R. Civ. P. 26(b)(1).
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).
Motions to Compel Discovery (ECF Nos. 75 and 76)
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.
Motion to Compel Discovery (ECF No. 77)
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.
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.
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,  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.
Motion to Compel ...