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Duncan v. Nunez

United States District Court, W.D. Louisiana, Alexandria Division

November 7, 2019

MARCO DAMON DUNCAN, Plaintiff
v.
JOSE NUNEZ, ET AL., Defendants

          DRELL JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         Because 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.

         I. Background

         Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics[1] (Docs. 1, 16, 20) alleging that he was subjected to excessive force when he was incarcerated at the United States Penitentiary in Pollock, Louisiana.

         Duncan 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).

         Defendants 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. (Doc. 219).

         II. Law and Analysis

         A. The untimely objections will not be waived.

         Although 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.

         B. Duncan's Third Motion to Compel (Doc. 189) will be granted in part and denied in part.

         Duncan's 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 Michel.
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 archived videos.
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 ...


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