United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on two motions filed by plaintiff.
Each is discussed in turn below.
Motion to Compel or Appoint Counsel (#78)
April 14, 2016, Plaintiff Jim Harris
(“Plaintiff”) initiated this suit against
defendant Nina Hill, a nurse practitioner, and filed a motion
for preliminary injunction or temporary restraining order.
Following this Court's review under 28 U.S.C. §
1915(e), plaintiff was allowed to maintain one claim against
Hill based on the allegations that she “terminated his
lay-in and assigned him to the top walk and top bunk, ”
although he is handicapped, resulting in at least one fall.
later order, the Court clarified that plaintiff claimed Hill
took away his medical lay-in for a bottom bunk despite his
handicap and that he sought to reinstate the lay-ins for
bottom-bunk and lower walk.
March 15, 2017, this Court entered a scheduling setting a
discovery deadline of August 18, 2017, and a dispositive
motions deadline of September 5, 2017. (#35.) The parties
engaged in discovery; Hill responded to interrogatories and
requests for production on documents. In addition, on July
19, 2017, Plaintiff served Defendant with deposition
questions under Federal Rule of Civil Procedure 31. On July
27, 2017, counsel advised plaintiff that defendant Hill would
not respond to the questions because the request did not
comply with Federal Rules of Civil Procedure 28, 30 and
31(b). Defendant received no further response or
communication regarding the deposition questions, and on
August 18, 2017, time expired for discovery. Hill filed her
motion for summary judgment on September 5, 2017.
September 21, 2017, plaintiff requested and received an order
for “an additional 45 days to file reply to any and all
matters pending in this court.” (See Order,
#77.) Instead of responding to the motion for summary
judgment-the only pending matter in this Court-plaintiff
filed a motion to compel Hill to respond to his deposition
questions or, in the alternative, to appoint counsel.
was apparently in the Cape Girardeau County Jail for several
weeks and was not able to address the matter of his request
for depositions by written questions until he returned to
prison. Plaintiff asks the Court to grant leave to depose the
defendant by written question and to appoint a commissioner
to do so under Federal Rules of Civil Procedure 26 and 31.
Alternatively, plaintiff asks the Court to appoint counsel.
request for counsel is denied for the same reasons the Court
previously denied plaintiff's motions. (See,
e.g., #12, #37.) The Court also denies plaintiff's
request to depose defendant Hill by written question.
Defendant Hill has already responded to plaintiff's other
discovery requests, which include interrogatories and
document requests. Plaintiff does not offer any reason why
the cost and burden of a deposition should be imposed. Nor
does plaintiff explain how he would pay for the costs
inherent to the taking of a deposition. Plaintiff
mysteriously refers to a matter pending in state court
between himself and defendant Hill and notes that
“there is [a] conflict between the Mississippi County
Sheriff and the Defendant N.P. Hill where she allege[s] she
never received summons but the Sheriff allege[s] he served
her.” (#78 at 2.) He also attaches a motion he filed in
that state court matter regarding the issue of her service in
that state court matter. That matter is entirely irrelevant
to the issues in plaintiff's case. Plaintiff has not
supported his request for leave to take defendant Hill's
written deposition. In light of the straightforward issues
involved in his case, there plaintiff's written discovery
was adequate. The motion will be denied.
Insufficient Discovery Motion (#80)
seeks an extension of time in which to respond to the
defendant's motion for summary judgment and again asks
the Court to order defendant to respond to the written
deposition questions. Plaintiff states he is having
difficulty responding to the motion for summary judgment
Plaintiff attempts to respond without the Court stamped
docket number in reference to which document plaintiff must
or should respond to, or how to respond to, because some of
the affidavits and supplemental reports of Defendant
Hill's are without medical numbers or document numbers.
(#80 at 2.) Defendant responds that she cited to affidavits
and Bates-numbered medical records that have been on the
docket and in plaintiff's hands since April 25, 2017. To
the extent plaintiff is confused about the identification of
documents cited in defendant's motion, plaintiff should
send a letter to counsel asking for clarification. The Clerk
will also sent plaintiff an updated copy of the docket sheet
for his reference. Plaintiff will be allowed until January 5,
2018 by which to file his response to the defendant's
motion for summary judgment.
IT IS HEREBY ORDERED that the Clerk shall
send to plaintiff a ...