United States District Court, D. North Dakota
ORDER GRANTING MOTIONS TO COMPEL DISCOVERY AND EXTEND
Charles S. Miller, Jr., Magistrate Judge.
September 25, 2018, Defendants Amanda Rost, Mike Graner, and
Darren Heidbreder (hereinafter the “County
Defendants”) filed a Motion to Compel Discovery. On
November 8, 2018, they filed a Motion to Modify Scheduling
Order. Defendant Justin Hager has joined in both motions. For
the reasons set forth below, the motions are granted.
plaintiff, Bruce Freemen (“Freeman”), was
convicted in this district of the offense of conspiracy to
possess with intent to distribute a controlled substance and
sentenced to a term of imprisonment of 120 months. See
United States v. Freeman, No. 1:15-cr-043 (D.N.D.). He
is presently incarcerated at MCFFP Springfield, an
administrative security federal medical center in
Springfield, Missouri. He initiated the above-entitled action
pro se in October 2017. Concluding that, for
purposes of its initial review, he had asserted a cognizable
claim against defendants for deliberate indifference to his
serious medical needs, the court allowed him to proceed.
of requiring the parties to confer in accordance with
Fed.R.Civ.P. Rule 26(f) and thereafter participate in a Rule
16(b) scheduling/discovery conference, the court issued a
scheduling order on May 4, 2018. The scheduling order
provided in relevant part that the parties were to make their
Rule 26(a)(1) disclosures by May 15, 2018, and complete fact
discovery by January 1, 2019.
September 25, 2018, the County Defendants filed a Motion to
Compel Discovery pursuant to Fed.R.Civ.P. 37. They aver that
Freeman has not made his Rule 26(a) disclosures as directed
in the court's scheduling order and has failed to respond
to the thirteen interrogatories and two requests for
production of documents that they served upon him on June 13,
2018. They seek an order from the court
compelling Freeman to respond to their discovery requests as
they pertain to his alleged eye injury, his underlying
health, and the facts surrounding each instance where they
allegedly denied and/or prevented him from obtaining
treatment. On October 8, 2018, Defendant Dustin Hager joined
in the County Defendants motion and in so doing advise that
Freeman had been unresponsive to his discovery requests as
October 11, 2018, the County Defendants filed a supplement to
their Motion to Compel Discovery in which they advise that
Freeman did recently respond to their second production
request and provided them with an executed authorization for
release of his medical records.
November 8, 2018, the County Defendants filed a Motion to
Modify Scheduling Order. Therein they advise: (1) Freeman has
to date neither fulfilled his discovery obligations under
Rule 26(a) nor responded to their interrogatories and
remaining request for production; (2) they were nevertheless
able to use the release provided to them by Freeman to obtain
medical records from four of Freeman's medical providers;
(3) they are currently awaiting additional medical records
from the fourth medical provider; and (4) have requested
Freeman to execute additional specialized medical release
forms that they understand are necessary in order to obtain
Freeman's medical records from the United States Marshal
and Bureau of Prisons. Next, they request that the court extend
the pretrial deadlines, averring that the delays in obtaining
medical records and Freeman's general lack of cooperation
are hampering their ability to properly defend this case.
November 13, 2018, Defendant Hager joined in the County
Defendants' Motion to Modify Scheduling Order.
Motion to Compel
26(a) of the Federal Rules of Civil Procedure requires the
parties to make certain initial disclosures as ordered by the
court. Rule 26(b)(1) address the scope of discovery.
Specifically, it provides:
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
the scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1); see also Colonial Funding
Network, Inc. v. Genuine Builders, Inc., 326 F.R.D. 206,
211 (D.S.D. 2018). (“The reason for the broad scope of
discovery is that ‘[m]utual knowledge of all the
relevant facts gathered by both parties is essential to
proper litigation. To that end, either party may compel the
other to disgorge whatever facts he has in his
possession.”” 8 Wright & Miller,
§ 2007, 39 (quoting Hickman v. Taylor, 329 U.S.
495, 507-08 (1947)). “Discoverable information itself
need not be admissible at trial; rather, the defining
question is whether it is ...