United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Third Motion to Compel Responses to Discovery
Requests (Doc. 189) and a Supplement to Third Motion to
Compel Responses to Discovery Requests (Doc. 196) filed by
pro se Plaintiff Marco Damon Duncan
(“Duncan”) (#37679-048). Duncan is an inmate in
the custody of the Federal Bureau of Prisons incarcerated at
the United States Penitentiary in Florence, Colorado.
Defendants should supplement certain discovery responses, the
Third Motion to Compel Responses to Discovery Requests (Doc.
189) will be GRANTED IN PART and DENIED IN PART, and the
Supplement to the Third Motion to Compel Discovery Requests
(Doc. 196) will be DENIED.
initiated this litigation pursuant to Bivens v. Six
Unknown Agents of the Federal Bureau of
Narcotics (Docs. 1, 16, 20) alleging that he was
subjected to excessive force when he was incarcerated at the
United States Penitentiary in Pollock, Louisiana.
initially alleged that did not receive responses to
Interrogatories and Requests for Production of Documents
(“RFP”) propounded on May 13, July 15, and July
25, 2019. (Doc. 189). Duncan alleges that Defendants
submitted untimely responses to the requests and untimely
objections to RFP 2, 5, 8, 10, 12, 14, and 17, and provided
improper or incomplete responses to RFP 6 and 11. (Doc. 243).
maintain that they timely responded to the Fourth RFP. (Doc.
219). Defendants state that they “responded to an
inquiry similar to the Plaintiff's Interrogatory dated
July 14, 2019, in which Plaintiff continues to ask the same
questions as to John Doe, and, thus, assumed that the
interrogatory dated July 14, 2019, had been answered.”
(Doc. 219). Defendants indicate that they have since
responded to the inquiry. (Doc. 219). Finally, Defendants
admit overlooking the Third RFP until September 30, 2019.
Law and Analysis
The untimely objections will not be waived.
Federal Rule of Civil Procedure 33(b) states that objections
not served within 30 days after the service of the
interrogatories shall be deemed waived, the Rule gives the
district court discretion to excuse the untimeliness for good
cause. See Solorzano v. Shell Chem Co., 254 F.3d
1082 (5th Cir. 2001) (citing Fed.R.Civ.P. 33(b)(3), (4)).
Defendants have admitted an oversight and have remedied the
oversight by submitting the responses. (Doc. 219). There have
been countless motions filed in this case and a substantial
amount of discovery requests. The untimely objections at
issue will not be deemed waived. However, it is possible that
future untimely responses may be deemed waived.
Duncan's Third Motion to Compel (Doc. 189) will be
granted in part and denied in part.
Third Motion to Compel (Doc. 189) seeks an order for
Defendants to provide additional information in response to
Duncan's Third Request for Production of Documents.
RFP 2 states:
Please produce copies of trial transcript from each BOP
employee that testified at the plaintiff's criminal
trial, including but not limited to the trial testimony of
Durrell Cottongin, Eric Farmer, Remington Steedley, or Joshua
Response to RFP 2 states:
Objection. Plaintiff's ability to obtain the information
is similar to that of defendants. Further, the request places
a burden or expense on defendants that outweighs its likely
benefit. Transcripts may be requested from the court reporter
for the trial.
(Doc. 243-1, p. 1). Duncan alleges that the transcripts are
in Defendants' possession. In its response to RFP 2,
Defendants do not state whether they have the transcripts in
their possession. If Defendants or Defendants' counsel
have the transcripts in their possession, they shall provide
copies to Duncan. Defendants are not, however, required to
order and pay for the transcript on Duncan's behalf.
See e.g., Conner v. Louisiana Dep't of
Health & Hosps., 02-CV-284, 2008 WL 5211003, at *2
(M.D. La. Dec. 9, 2008) (“The court is not going to
compel DHH to produce records [transcript of worker's
compensation hearing] that it does not have.”).
RFP 5 states:
Please produce for inspection any Vicon Net Kollector
hard-drives containing video footage from USP-P on 1-13-17,
including the requisite Vicon Net Software for viewing the
Response to RFP 5 states:
Objection. This request is not proportional to the needs of
the case-a case contending excessive force was used against
Plaintiff in the R&D area of USP Pollock. Further, the
request is of low importance to resolving the facts at issue
in the case. Notwithstanding the objection, all video
relevant footage from the incident on was downloaded to a CD
and has been provided to Plaintiff for viewing.
(Doc. 243-1, p. 2). Despite Defendants' assertion that
all relevant footage was provided, Duncan maintains that it
was not. Duncan does not specify ...