IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, 

Plaintiff, 

v. Case No. 2:11-cv-399

Jeffrey Norman Hazzard, et al., JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

Defendants. 

ORDER

This matter is before the Court to consider a motion to

compel filed by plaintiff Benjamin Hendricks. Defendants have

responded to the motion and the motion has been fully briefed. 

For the following reasons, the motion to compel will be granted

in part and denied in part.

I. Background

The facts of this case have been set forth in detail in

several previous orders of the Court and will not be repeated at

length here. Briefly, however, for purposes of the current

motion, following rulings on motions to dismiss and for summary

judgment, two claims remain in this case. First, there is a

retaliation claim against defendant Jeffrey Norman Hazzard

relating to the alleged destruction of Mr. Hendricks’ legal

materials on June 18, 2010. Further, there is a claim against

Gene Wessell, Carole Crocket-Harris and Mary Lawrence in their

official capacities seeking injunctive and declaratory relief to

address alleged ongoing violations of constitutional rights at

the Pickaway Correctional Institution. The amended complaint

also names Ernie Moore, Gary Mohr and Roger Roddy in their

official capacities, but there is no indication on the Court’s

docket that service has ever been made on these defendants. 

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On June 12, 2013, the Court issued a Report and

Recommendation denying Mr. Hendricks’ request for a TRO relating

to events allegedly involving Mr. Hazzard in 2013.

II. Mr. Hendricks’ Motion to Compel

In his motion to compel, Mr. Hendricks takes issue with all

of defendants’ responses to his discovery requests except for

one, Request for Production No. 4. His argument in support of

his 5-page motion is set forth in two paragraphs on page 3 and

reads as follows:

Here, Defendants have objected to all of

Plaintiff’s requests with the exception of the CIIC

reports. They have advanced almost every conceivable

objection and/or reservation which, if allowed to

stand, will effectively shut down further litigation. 

Most, if not all, of the requested material relates to

the actions of PCI employees, grievances against them,

and the failure to investigate and/or discipline the

staff thereby fostering the continued harm/actions -

all of which are relevant to the claims at issue in

this case. For example, the requested material

concerning the events of March 29, 2013 are relevant to

the continued actions of Defendant Hazzard and the

continued failure to investigate and/or discipline by

the remaining Defendants, but yet objections were

advanced concerning relevancy.

In addition, Plaintiff also requested medical

records and/or grievances from and about other inmates

that have experienced misuse of force, harassment,

retaliation, etc. and the responses to such incidents -

again all of which are relevant to the claims at issue. 

...

In response, defendants make two arguments. First, they

argue that Mr. Hendricks failed to make a good faith effort to

resolve the discovery dispute as required by Fed.R.Civ.P. 37 and

this Court’s Local Civil Rules. Additionally, they argue that

Mr. Hendricks has not demonstrated that the documents he seeks

are relevant and that his requests are overbroad.

In reply, Mr. Hendricks argues that he did attempt to

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resolve the dispute within the terms of the constraints he is

operating under. Further, he devotes at least four pages of his

reply to contending that the motion to compel should be granted

because defendants’ discovery response did nothing more than set

forth “boilerplate” objections. 

A. Extrajudicial Means of Resolving Dispute 

Initially, the Court notes that S.D. Ohio Civ. R. 37.1,

which supplements the procedures mandated by Fed.R.Civ.P. 37,

provides that discovery-related motions shall not be filed unless

all extrajudicial means to resolve the differences have been

exhausted. Once such extrajudicial means are exhausted, a party

may then seek an informal telephone conference with the Court.

See Watson v. Citi Corp., No. 2:07–cv–0777, 2008 WL 3890034, at

*2 (S.D. Ohio Aug.19, 2008). If, after the informal telephone

conference, the dispute remains unresolved, the party seeking the

discovery may then file a motion to compel pursuant to

Fed.R.Civ.P. 37(a). See S.D. Ohio Civ. R. 37.2. The motion to

compel shall be accompanied by a supporting memorandum and a

certification informing the Court of the extrajudicial means that

have been attempted to resolve the dispute. See id. Here, Mr.

Hendricks contends in his motion that he made a good faith effort

to resolve the discovery dispute and explains his efforts to do

so. The Court will construe Mr. Hendricks’ efforts as his

attempt to resolve the discovery dispute through extrajudicial

means and will consider the motion to compel on its merits. 

B. Analysis

The general principles involving the proper scope of

discovery are well known. The Federal Rules of Civil Procedure

authorize extremely broad discovery. United States v. Leggett &

Platt, Inc., 542 F.2d 655 (6th Cir. 1976), cert. denied 430 U.S.

945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977). Therefore,

Fed.R.Civ.P. 26 is to be liberally construed in favor of allowing

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discovery. Dunn v. Midwestern Indemnity, 88 F.R.D. 191 (S.D.

Ohio 1980). Any matter that is relevant, in the sense that it

reasonably may lead to the discovery of admissible evidence, and

is not privileged, can be discovered. The concept of relevance

during discovery is necessarily broader than at trial, Mellon v.

Cooper–Jarrett, Inc., 424 F.2d 499 (6th Cir. 1970), and “[a]

court is not permitted to preclude the discovery of arguably

relevant information solely because if the information were

introduced at trial, it would be ‘speculative’ at best.” Coleman

v. American Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994).

Information subject to disclosure during discovery need not

relate directly to the merits of the claims or defenses of the

parties. Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the

litigation. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98

S.Ct. 2380, 57 L.Ed.2d 253 (1978). On the other hand, the Court

has the duty to deny discovery directed to matters not

legitimately within the scope of Rule 26, and to use its broad

discretionary power to protect a party or person from harassment

or oppression that may result even from a facially appropriate

discovery request. See Herbert v. Lando, 44l U.S. 153 (1979).

Additionally, the Court has discretion to limit or even preclude

discovery which meets the general standard of relevance found in

Rule 26(b)(1) if the discovery is unreasonably duplicative, or

the burden of providing discovery outweighs the benefits, taking

into account factors such as the importance of the requested

discovery to the central issues in the case, the amount in

controversy, and the parties' resources. See Fed.R.Civ.P. 26(b)

(2). Finally, the Court notes that the scope of permissible

discovery which can be conducted without leave of court has been

narrowed somewhat by the December 1, 2000 amendments to the

Federal Rules. Rule 26(b) now permits discovery to be had

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without leave of court if that discovery “is relevant to the

claim or defense of any party ....” Upon a showing of good

cause, however, the Court may permit broader discovery of matters

“relevant to the subject matter involved in the action.” Id. 

As explained above, Mr. Hendricks has not provided specific

arguments as to why defendants’ objection to any particular

discovery request on grounds of relevance was not justified. 

There is no question that “ ‘[t]he proponent of a motion to

compel discovery bears the initial burden of proving that the

information sought is relevant.’ ” Guinn v. Mount Carmel Health

Systems, 2010 WL 2927254, *5 (S.D. Ohio July 23, 2010), quoting

Clumm v. Manes, Case No. 2:08–cv–567 (S.D. Ohio May 27, 2010)

(King, J.); see also Berryman v. Supervalu Holdings, Inc., 2008

WL 4934007 (S.D. Ohio Nov. 18, 2008) (“At least when the

relevance of a discovery request has been challenged the burden

is on the requester to show the relevance of the requested

information.”) (internal citation omitted). When the information

sought appears to be relevant, the party resisting production has

the burden of establishing that the information either is not

relevant or is so marginally relevant that the presumption of

broad disclosure is outweighed by the potential for undue burden

or harm. See Vickers v. General Motors Corp., 2008 WL 4600997,

*2 (W.D. Tenn. September 29, 2008). Here, the relevance of the

majority of Mr. Hendricks’ discovery requests is not apparent. 

Consequently, Mr. Hendricks bears the burden of proving that the

information he seeks through these requests is relevant.

As explained above, Mr. Hendricks has two claims remaining

in this action following the Court’s ruling on the motion to

dismiss the amended complaint. The first is a retaliation claim

against defendant Jeffrey Norman Hazzard relating to the alleged

destruction of Mr. Hendricks’ legal materials on June 18, 2010. 

None of Mr. Hendricks’ discovery requests appears to relate

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specifically to this claim. 

The second remaining claim is a claim against Gene Wessell,

Carole Crocket-Harris and Mary Lawrence in their official

capacities seeking injunctive and declaratory relief to address

alleged ongoing violations of constitutional rights at the

Pickaway Correctional Institution. A claim against a state

employee named in his or her official capacity is, in actuality,

a claim against the State. Kentucky v. Graham, 473 U.S. 159, 165

(1985). The Court of Appeals for the Sixth Circuit has stated

that “official-capacity liability requires the plaintiff to show

that the state is a wrongdoer because of an ‘officially executed

policy, or the toleration of a custom’ that caused the

constitutional violation.” Shabazz v. Schofield, 2013 WL 704408,

*10 (M.D. Tenn. February 26, 2013), quoting Doe v. Claiborne

Cnty., 103 F.3d 495, 507 (6th Cir. 1993). 

Viewing the allegations of the amended complaint in the

light most favorable to Mr. Hendricks, he has alleged that the

Pickaway Correctional Institution has a custom or policy of

retaliating against prisoners like him who exercise their right

to petition the courts. Only two of his discovery requests,

however, appear to relate to this issue of retaliation in any

way. For example, Request No. 3 states as follows:

3. Any and all grievances, complaints,

investigative files, etc. received by any prison staff

at Pickaway Correctional Institution concerning

harassment, retaliation, inappropriate supervision,

mis-use of force and any memorandum, investigative,

files, or any other document created in response to

such since January 1, 2008. 

 

Further, Request No. 16 states as follows:

16. Any and all inmate Conduct Reports written by 

any prison staff member at PCI that were found to be

false and/or for retalitay (sic) purposes and any

memorandum, investigative files, or any other document

created in response to such since January 1, 2008. 

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The defendants, however, also have objected to these

requests on the basis that they are overbroad and burdensome,

although with minimal discussion. There is no question that a

litigant “has no right to serve overbroad discovery requests that

seek irrelevant information.” Howell v Buckeye Ranch, Inc., Case

No. 2:11-cv-1014, 2012 WL 5265170 (S.D. Ohio October 1, 2012),

citing Glazer v. Fireman's Fund Insurance Company, 2012 WL

1197167, *3–*4 (S.D.N.Y. April 5, 2012). These discovery

requests are overbroad and seek irrelevant information given that

the Court has construed Mr. Hendricks’ official-capacity claim as

relating only to a policy or custom of retaliation. In light of

this, the Court will grant the motion to compel, in part, and

will direct defendants to respond to these two discovery

requests. However, the Court will limit the required responses

to these requests to documents relating only to the issue of

retaliation against inmates who, like Mr. Hendricks, have used

their right to petition the courts for redress. So construed,

the requests call for production of grievances or other inmate

complaints that they have been subjected to retaliation for

resorting to the courts, or any conduct reports against such

inmates which were subsequently determined to be false or

retaliatory. 

III. Remaining Issues

Mr. Hendricks also has requested the appointment of counsel. 

As the Court previously has noted in this case, "[a]ppointed

counsel in civil suits is a privilege only justified in

exceptional circumstances...." Jennings v. Bradley, 419 Fed.

Appx. 594, 598 (6th Cir. 2011), citing Lavado v. Keohane, 992

F.2d 601, 605 (6th Cir. 1993). Based on the current record, the

Court remains unable to conclude that such exceptional

circumstances exist in this case. Consequently, the motion for

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appointment of counsel will be denied. 

Further, the Court notes that Mr. Hendricks has requested an

extension of the discovery date explaining that he previously

made such a request and has not received a ruling. In the Report

and Recommendation issued June 12, 2013, the Court granted an

extension of the discovery deadline until September 30, 2013 and

an extension of the dispositive motion deadline until October 30,

2013. Mr. Hendricks has not shown good cause for any extension

beyond these dates. Consequently, the request for extension will

be denied.

IV. Conclusion

For the reasons stated above, the motion to compel (#87) is

granted in part and denied in part as set forth above. 

Defendants shall provide responses to Request Nos. 3 and 16, as

limited by this order, within twenty-one days

APPEAL PROCEDURE

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.3.

 /s/ Terence P. Kemp 

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 United States Magistrate Judge

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