United States District Court, D. Connecticut
JAMES A. HARNAGE
DR. OMPREKASH PILLAI, et al.
RULING ON PENDING MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
before the Court are four motions filed by self-represented
plaintiff James A. Harnage (“plaintiff”). Two
motions seek to compel responses to, and sanctions for
defendant Rikel Lightner's failure to respond to,
plaintiff's interrogatories and requests for production
(collectively the “motions to compel”). [Docs.
#33, #34]. The third motion seeks the entry of a default
against all defendants for their failure to comply with a
discovery order (“motion for default”). [Doc.
#32]. The fourth motion seeks to “extend discovery nunc
pro tunc.” [Doc. #31 (sic)]. On May 18, 2018, and May
25, 2018, Judge Alvin W. Thompson referred those motions to
the undersigned. [Docs. #35, #37]. Defendants Dr. Omprekash
Pillai, Dr. David Giles, Lisa Caldonero, “P.A.
Rob”, and Rikel Lightner (collectively the
“defendants”) filed an objection to the pending
motions on May 20, 2018. [Doc. #36]. On May 31, 2018,
plaintiff filed a “response” to defendants'
objection. [Doc. #38]. For the reasons set forth below, the
Court GRANTS, in part, and DENIES, in part, plaintiff's
motions to compel [Docs. ##33, 34], DENIES plaintiff's
motion for default [Doc. #32], and GRANTS, in part, and
DENIES, in part, plaintiff's motion to extend discovery
nunc pro tunc [Doc. #31].
brings this action pursuant to 42 U.S.C. §1983. See
generally Doc. #1, Complaint. Plaintiff alleges that
Rikel Lightner, from whom the discovery at issue is sought,
“is and was a medical staff member, employed by CMHC,
and assigned duties as the Health Services Administrator,
responsible for overseeing the medical services provided to
inmates at MacDougall[.]” Id. at ¶6. At
the time of the incidents alleged in the Complaint, plaintiff
was incarcerated at the MacDougall Correctional Institute
(“MacDougall”). See Id. at ¶1.
generally alleges that in retaliation for filing lawsuits,
grievances, and health service reviews, defendants
“unreasonably denied, delayed and prolonged plaintiffs
treatment” for his hemorrhoid and abdominal hernia,
for which plaintiff eventually underwent surgery.
Id. at ¶¶9-17 (sic). Plaintiff alleges,
inter alia, that defendants permitted conditions to exist
that “deprived the plaintiff of proper and adequate
post-operative care.” Id. at ¶16. As to
defendant Lightner specifically, plaintiff alleges that she
“retaliated against Harnage following the hemorrhoid
surgery when after Harnage filed numerous requests and Health
Service Reviews asking that these conditions be corrected,
Lightner ignored the plaintiffs pleas thereby condoning the
conditions.” Id. at ¶28 (sic). Defendants
filed an answer to the Complaint on September 27, 2017, and
asserted several affirmative defenses. [Doc. #23].
November 2, 2017, Judge Thompson granted plaintiff's
motion for extension of time until December 30, 2017, to
complete discovery. See Doc. #28. In granting that motion,
Judge Thompson warned: “No further extensions shall be
granted.” Id. On May 10, 2018, over four
months after the close of discovery, plaintiff filed the two
motions to compel and motion for default now at issue. See
Docs. #32, #33, #34. Simultaneously with those motions,
plaintiff filed a nunc pro tunc motion to extend the
discovery deadline to July 9, 2018. [Doc. #31].
Motions to Compel [Docs. #33, #34]
motions to compel seek responses to interrogatories and
requests for production served on defendant Lightner. See
Docs. #33, #34. Each of the discovery requests attached to
plaintiff's motions bears a date of October 3, 2017. See
Docs. #33-2, #34-2. At the time the requests were served on
defendant Lightner, discovery was scheduled to close on
October 26, 2017. See Doc. #9 at 8-9. Thus, the requests at
issue were served within the then controlling discovery
26(b)(1) of the Federal Rules of Civil Procedure sets forth
the scope and limitations of permissible discovery:
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.
Civ. P. 26(b)(1). “[T]he burden of demonstrating
relevance is on the party seeking discovery[.]”
Mason Tenders Dist. Council of Greater New York v. Phase
Constr. Servs., Inc., 318 F.R.D. 28, 36 (S.D.N.Y. 2016).
Once the party seeking discovery has demonstrated relevance,
the burden then shifts to “[t]he party resisting
discovery ... [to] show why discovery should be
denied.” Cole v. Towers Perrin Forster &
Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009) (alterations
Timeliness of Motions
response to plaintiff's motions, defendants contend that
each is untimely and that “alone justifies denying all
of the motions outright.” Doc. #36 at 1. Defendants
also concede, however, that they “have not provided
plaintiff with discovery in this specific action, ” but
assert that “many of the concerns plaintiff's
raises in these motions will be addressed by the
production” in another one of plaintiff's cases,
Harnage v. Wu, 3:16CV1543(AWT). Id. (sic)
are correct that plaintiff's motions could be deemed
untimely as they were filed after the close of discovery.
“Though Rule 37 does not establish time limits for such
a motion, a party seeking to file a motion to compel after
discovery has closed must ... establish good cause.”
Gucci Am., Inc. v. Guess?, Inc., 790 F.Supp.2d 136,
139 (S.D.N.Y. 2011); accord Casagrande v. Norm Bloom
& Son, LLC, No. 3:11CV1918(CSH), 2014 WL 5817562, at
*2 (D. Conn. Nov. 10, 2014). Plaintiff
“disagrees” with defendants' representation
that his discovery is untimely and contends: “To the
point any such pursuit of the enforcement of the discovery
rules may be construed as ‘untimely', the plaintiff
posits that such untimeliness is a direct result of the
defendants actions.” Doc. #38 at 2 (sic). Plaintiff
then lists the ways in which he believes defense counsel has
obstructed his attempts to obtain discovery in this matter.
See Id. at 2-3. Plaintiff also attempts to lay blame
on the Court for his untimely motions. See Id. at 3.
Generally, plaintiff fails to offer good cause for the Court
to consider his motions to compel at this late stage. Indeed,
plaintiff is well-versed in litigation and he could have
filed a motion seeking an extension of the discovery
deadline. Or, he could have filed a motion to compel in
November 2017, when the responses were due. He did not do so.
Thus, the Court could simply deny plaintiff's motions as
untimely. See, e.g., Richardson v. City of New York,
326 Fed.Appx. 580, 582 (2d Cir. 2009) (“[T]he district
court did not abuse its discretion in denying Plaintiff's
motion to compel discovery, which was filed over one month
after the close of discovery, as untimely.”); James
v. United States, No. 99CV4238(BSJ)(HBP), 2003 WL
22149524, at *6 (S.D.N.Y. Sept. 17, 2003) (denying motion to
compel as untimely where it was filed six months after the
close of discovery and the movant proffered no justification
for the untimeliness). However, in recognition of
plaintiff's self-represented status, and in light of the
concession that defendants have not provided plaintiff with
any discovery in this action, the Court will not deny the
motions as untimely. See Doc. #36 at 1.
Motion to Compel Answers to Interrogatories [Doc. #33]
has served fifteen interrogatories directed to defendant
Lightner, to which she has provided no answers or objections.
See Doc. #33-2. After reviewing those interrogatories and the
allegations of plaintiff's Complaint, as limited by the
Initial Review Order, see Docs. #1, #9, the Court hereby
orders as follows:
Defendant Lightner shall answer interrogatories 1, 3 through
7, and 10 through 12, ...