IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, :

Plaintiff, :

v. : Case No. 2:11-cv-40

Ohio Department of : JUDGE MICHAEL H. WATSON

Rehabilitation and Correction, Magistrate Judge Kemp

et al., :

 

Defendants. :

ORDER

This case is before the Court to consider a motion to compel

filed by plaintiff Benjamin Hendricks. The motion has been fully

briefed. For the following reasons, the motion to compel will be

granted in part and denied in part.

I. 

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

previous orders of the Court relating to the amendment of Mr.

Hendricks’ complaint and will not be repeated here. Briefly,

however, the allegations of Mr. Hendricks’ amended complaint

assert two causes of action. Mr. Hendricks’ first claim is an

Eighth Amendment claim arising from the alleged disregard of his

dietary needs relating to his gastrointestinal issues. This

claim is directed to defendants John DesMarais, Mona Parks,

Theresa Bell, and Susan Nesbitt. The second claim is a First

Amendment claim relating to the alleged destruction of his legal

materials by Michelle Miller.

Mr. Hendricks’ motion to compel involves discovery requests

served on each remaining individual defendant except Mona Parks. 

According to the amended complaint, these defendants include Dr.

John DesMarais, the medical director for the ODRC, Theresa Bell,

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the dietary operations manager for the ODRC, Susan Nesbitt, the

healthcare administrator at the Belmont Correctional Institution,

and Michelle Miller, the warden at the Belmont Correctional

Institution. According to the motion to compel, these individual

sets of discovery requests were a combination of interrogatories,

requests for production of documents, and requests for admission,

although each specific request was not identified as a particular

form of discovery request. Mr. Hendricks also directed a set of

requests for admission to the defendants as a whole. Mr.

Hendricks has attached copies of the defendants’ responses to his

motion to compel. From these responses it appears that, over

objection, Dr. DesMarais responded to the 17 discovery requests

directed to him specifically and provided the requested

documents. Similarly, Ms. Bell, Ms. Miller and Ms. Nesbitt

responded to each of the discovery requests directed specifically

to them and either answered them over objection, indicated that

they were without knowledge to do so, or stated that Mr.

Hendricks was requesting information beyond their control. They

also provided requested documentation. The defendants responded

to Mr. Hendricks’ blanket requests for admission by objecting to

each request primarily on grounds that the requests were not

directed to a particular party, Mr. Hendricks did not furnish

sufficient information within his possession to enable the

responding party to form a conclusion, and the requests were

phrased in improper form. 

In his motion to compel, Mr. Hendricks appears to take issue

with every single discovery response. With respect to the

discovery directed to the individual defendants, many of the

issues Mr. Hendricks raises relate to the form of the answer

provided. For example, Mr. Hendricks asserts that many of the

requests called only for “yes/admit” or “no/deny” answers even

though they were not identified as requests for admission. Mr.

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Hendricks also attempts to address every objection raised by the

defendants, even when they provided an answer over objection. 

With respect to the requests for admission addressed to all of

the defendants, Mr. Hendricks asserts that the information he

failed to furnish is easily available to the defendants and

defendants failed to make any reasonable inquiry before stating

that they had insufficient information with which to respond. 

Mr. Hendricks also requests sanctions under Fed.R.Civ.P. 37 and

the appointment of counsel.

In response, defendants argue that the motion to compel is

moot because they have appropriately responded to Mr. Hendricks’

discovery requests. Further, they contend that, aside from

replacing their narrative answers with yes or no responses, they

are unclear as to what supplementation Mr. Hendricks seeks. 

Further, they assert that Mr. Hendricks has filed his motion to

compel simply because he disagrees with their answers. They also

state, however, that to the extent Mr. Hendricks needs additional

time to review his medical records, they are willing to arrange

it. 

In reply, Mr. Hendricks disputes that the defendants are

willing to allow him additional review of his medical records. 

He also contends that the fact that defendants provided legal

mail logs for the time period from July 2009 to the end of that

year as opposed to all of 2009 as he had requested is simply one

example of their efforts to thwart discovery. The bulk of his

reply, however, appears to be addressed to the requests for

admission. He contends that the defendants’ responses are

deficient because they do not include a statement that defendants

made a reasonable inquiry to obtain any of the requested

information. 

II.

The general principles involving the proper scope of

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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 (1977). Therefore, Fed.R.Civ.P. 26 is to be

liberally construed in favor of allowing 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 (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

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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 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.

III.

The Court will address the discovery requests as directed to

the individual defendants first. With respect to Dr. DesMarais,

while Mr. Hendricks argues that portions of Requests Nos. 1-6,

10, and 14-15 are intended as requests for admission thereby

requiring only a “yes/admit” or “no/deny” answer, they are all

phrased in the form of interrogatories. Further, although Mr.

Hendricks addresses every objection raised by Dr. DesMarais with

respect to the remaining discovery requests, Mr. Hendricks fails

to assert how Dr. DesMarais’ answers, provided over objection,

are insufficient. Consequently, the motion to compel will be

denied to the extent that it seeks an order directing Dr.

DesMarais to supplement his responses to requests Numbers 1

through 16.

 In discovery request No. 17, Mr. Hendricks requested a copy

of the ODRC policy on “Consultation Referrals: Initiation,

Process, & Follow-up Number: B-1.” In response, the defendants

provided a copy of the policy in effect as of July 7, 2011. Mr.

Hendricks asks the Court to take judicial notice of the fact that

the documents provided may be “substantially different” from the

policy in effect at the time relevant to the allegations of the

complaint. The Court agrees that a copy of the policy in effect

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at the time Mr. Hendricks’ claim arose would be more relevant

than a copy of the policy currently in effect. While the Court

declines to take judicial notice as requested, it will require

the defendants to provide a copy of the policy in effect during

the time period set forth in the complaint. 

Turning to the eleven discovery requests directed to Ms.

Bell, the dietary operations manager for the ODRC, Ms. Bell

answered a number of these requests over objection. As with Dr.

DesMarais, other than objecting to the form of her answers to

these specific questions, which he did not identify as requests

for admission, Mr. Hendricks has not identified any deficiencies

in Ms. Bell’s responses. Consequently, the Court will deny the

motion to compel as it relates to discovery requests Nos. 1, 2,

3, 5, 6, and 9. Similarly, the Court will deny the motion to

compel as it relates to discovery request No. 11 in light of

defendants’ representation in their response that they are

willing to arrange additional time for Mr. Hendricks to review

his medical records.

With respect to the remaining requests directed to Ms. Bell,

the Court will consider them in turn. Request No. 4 and Ms.

Bell’s response are as follows:

4. Was a low residue diet ever order/recommended for

plaintiff by a specialist that plaintiff was scheduled

to see

Response: Objection-form; lack of foundation;

vagueness; the interrogatory relates to the actions of

third parties over whom Defendant Bell has not right to

control; the interrogatory relates to medical records

that are not in Defendant Bell’s possession; said

records speak for themselves; and Plaintiff did not

attach a copy of said records to his request.

1. If yes, why would this not have been followed

Response: Objection-form; calls for speculation; lack

of foundation; assumes facts not in evidence; and

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vagueness. Without waiving any objection, Defendant

Bell states that any recommendation from a medical

specialist outside of the Ohio Department of

Rehabilitation and Correction (ODRC) is subject to the

discretion of the inmate’s institutional physician and

to relevant ODRC policies and protocols.

In his motion to compel, Mr. Hendricks argues that this request

calls for a yes or no answer, it is relevant to defendants’

knowledge of his need for a low residue diet, and he has been

unable to obtain the medical records but they are easily

available to Ms. Bell. Defendants’ agreement to provide Mr.

Hendricks additional time to review his medical records may

resolve the motion to compel as it relates to these discovery

requests. Consequently, the motion to compel will be denied as

to this request without prejudice to its renewal after Mr.

Hendricks completes his additional review of his medical records. 

Request No. 7 and the corresponding response state as

follows:

7. Why would the orders/recommendations of a

specialist, a Gastroenterologist in this case, not be

followed to prevent further complications

Response: Objection-form; calls for speculation; lack

of foundation; assumes facts not in evidence; and

vagueness.

In his motion to compel, Mr. Hendricks argues that this

request is relevant because it relates to Ms. Bell’s state of

mind regarding the allegations in the complaint. Despite the

defendants’ assertion of various deficiencies, the focus of Mr.

Hendricks’ request, fairly read, is quite clear. He is asking,

consistent with the allegations in his complaint, why the orders

of his medical specialist were not followed. There could be any

number of reasons for this alleged occurrence, but Ms. Bell’s

answer does not provide any reasons. Ms. Bell will be directed

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to supplement her response to this request.

8. Do you know of any expert witnesses that intend to

be called to testify at trial

Response: Objection- form; confidential or privileged;

vagueness; and the interrogatory relates to the actions

of third parties over whom Defendant Bell has no right

to control. Without waiving objection, Defendant Bell

states that she has no information or belief sufficient

to answer the interrogatory.

As noted, Ms. Bell chose to answer this discovery request

over objection. Her response, however, is inadequate. The

procedures governing service of and responses to interrogatories

are set forth in Fed.R.Civ.P. 33. Fed.R.Civ.P. 33(b)(3) provides

as follows:

Each interrogatory must, to the extent it is not

objected to, be answered separately and fully in

writing under oath.

“Parties must respond truthfully, fully and completely to

discovery or explain truthfully, fully and completely why they

cannot respond.” Miller v. Pruneda, 2004 WL 3927832 (N.D. W.Va.

July 20, 2004), at *5. “If a party is unable to supply the

requested information, ... [the party] must state under oath that

he is unable to provide the information and ‘set forth the

efforts he used to obtain the information.’” Hansel v. Shell Oil

Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996) quoting Milner v.

National Sch. of Health Tech., 73 F.R.D. 628, 632 (E.D. Pa.

1977). Although there is not an extensive amount of commentary

on Rule 33(b) in the Advisory Committee notes, the notes to the

1993 Amendments do indicate that one of the purposes of the rule

is to “emphasize the duty of the responding party to provide full

answers” to interrogatories. That duty is further highlighted by

Fed.R.Civ.P. 37(a)(4), which provides that an evasive or

incomplete answer is deemed to be no answer at all and can lead

to the imposition of sanctions upon the party whose answer is

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either evasive or incomplete. This same concept of full and

complete responses to discovery requests is reinforced by

Fed.R.Civ.P. 26(g)(1), which states that “[b]y signing, an

attorney or party certifies that to the best of the person’s

knowledge, information and belief formed after a reasonable

inquiry, the request, response, or objection is ... consistent

with these rules ... and not interposed for any improper purpose,

such as to harass or cause unnecessary delay or needless increase

in the cost of litigation.” Fed.R.Civ.P. 26(g)(1)(B)(i)(ii). 

For these reasons, Ms. Bell’s response that she is without

knowledge or belief, absent any explanation of her steps to make

a reasonable inquiry, is insufficient. Consequently, Ms. Bell

will be directed to supplement her response to request No. 8. 

10. Please provide a copy of all commissary purchases

to date

Response: Objection-form; relevance; lack of

foundation; vagueness; and the interrogatory relates to

records that are not in Defendant Bell’s possession. 

In his motion to compel, Mr. Hendricks argues that this

request is relevant to a potential defense and the records are

readily available to Ms. Bell. The Court agrees that evidence

relating to Mr. Hendricks’ commissary purchases may be relevant

to a defense of his claims of chronic gastrointestinal distress. 

While Ms. Bell asserts that she is not in possession of these

records, she does not indicate any efforts she has made to obtain

these records or why she was unable to do so. Consequently, the

motion to compel will be granted as to discovery request No. 10

directed to Ms. Bell. 

Turning to Ms. Miller, with respect to several of the

discovery requests, she also has answered them over objection

and, aside from his argument relating to form, Mr. Hendricks has

not indicated how her answers are insufficient. As a result, the

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motion to compel will be denied as to discovery requests Nos. 2,

3, and 7. With respect to request No. 10, Mr. Hendricks notes

that while he requested records relating to his legal mail for

January through December 2009, the records he received relate

only to July 2009 through the end of that year. To the extent

that there are any records relating to the time period from

January 2009 through June 2009, Ms. Miller will be directed to

produce them. 

With respect to request No. 1 directed to Ms. Miller, the

request and Ms. Miller’s response state as follows:

1. Other than the instant case, have there ever

been any other allegations against involving you

regarding any form of retaliation. 

Response: Objection - form; relevance; vagueness;

and the interrogatory relates to the actions of third

parties over whom Defendant Miller has no right to

control.

In his motion to compel, Mr. Hendricks characterizes this

discovery request as a request for admission and states that it

merely requires a “yes/admit” or “no/deny” answer. Rule 36 of

the Federal Rules of Civil Procedure permits a party to serve on

any other party “a written request to admit ... the truth of any

matters within the scope of Rule 26(b)(1) relating to: (A) facts,

the application of law to fact, or opinions about either; and (B)

the genuineness of any described documents.” Fed.R.Civ.P.

36(a)(1). “Rule 36 is not a discovery device, and its proper use

is as a means of avoiding the necessity of proving issues which

the requesting party will doubtless be able to prove.” Misco,

Inc. v. United States Steel Corp., 784 F.2d 198, 205 (6th Cir.

1986). The Court finds that request no. 1 is not a proper Rule

36 request. Simply stated, it does not comply with Federal Rule

of Civil Procedure 36(a) and more closely resembles an attempt to

utilize Rule 36 as a general discovery device. Consequently, Mr.

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Hendricks’ motion to compel will be denied as to this request.

The remaining discovery requests directed to Ms. Miller

relate to her alleged search and seizure of Mr. Hendricks’ legal

materials. With respect to requests Nos. 4, 5, 6, 8, and 9, Ms.

Miller has, over objection, stated that “she is without knowledge

or information sufficient to respond to the interrogatory.” For

example, this was her response to request No. 4 which asked the

reason for the search and seizure as alleged in the complaint. 

Similarly, it was her response to request No. 5, which asked

whether she was present at the time of the alleged incident. 

Additionally, she responded in this way to request No. 9 asking

whether Mr. Hendricks had ever personally informed her or her

subordinates of pending legal action. With respect to requests

Nos. 6 and 8 relating to Mr. Hendricks’ possession of a locker

box or whether he had ever been issued a conduct report for

possessing contraband - questions that seem capable of being

answered by a review of records within the control of an

institution’s warden - she again asserted lack of knowledge or

information. This response is simply inadequate. 

Ms. Miller has failed to explain the efforts she undertook

in making a reasonable inquiry to obtain the information Mr.

Hendricks is requesting. As discussed above, the rules governing

discovery require that she do so. Further, it seems likely that

Ms. Miller knows whether she was present when Mr. Hendricks’

legal materials allegedly were destroyed. Consequently, the

motion to compel will be granted as to requests Nos. 4, 5, 6, 8,

and 9 and Ms. Miller will be directed to supplement her

responses. 

Turning to Ms. Nesbitt, several of the discovery requests

directed to her involve questions relating to information

contained in Mr. Hendricks’ medical records. Defendants’

agreement to provide Mr. Hendricks additional time to review his

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medical records may resolve the motion to compel as it relates to

these discovery requests. Consequently, with respect to requests

Nos. 2, 3, 4, 9, 13, 14, and 15, the motion to compel will be

denied without prejudice to its renewal after Mr. Hendricks

completes his additional review of his medical records. Further,

over objection Ms. Nesbitt has answered many of Mr. Hendricks’

discovery requests and he has not indicated with any specificity

why her responses are insufficient. Consequently, the motion to

compel will be denied as to request Nos. 1, 5, 6, 7, and 8. With

respect to requests Nos. 10, 11, and 12, however, Ms. Nesbitt’s

answer, over objection, merely was that she is without knowledge

or information sufficient to answer. These discovery requests

are as follows:

10. According to your knowledge, are any of the

defendants a gastroenterologist or have any

special training/education concerning Crohn’s

disease?

If yes

1. Which defendants?

2. What are their qualifications?

11. Have Dietetic Technicians employed by ODRC tried

to customize a diet plan for plaintiff. If yes,

what were the dietary plans?

12. Did any ODRC employee/agent/contractor deny and/or

interfere with these plans? If yes, who? 

As explained above, Ms. Nesbitt’s response asserting lack of

knowledge or information is inadequate. Consequently, the motion

to compel will be granted as to request Nos. 10, 11, and 12

directed to Ms. Nesbitt and she will be directed to supplement

these responses.

Finally, with respect to the requests for admission, the

defendants raise three primary objections - the request is not

directed to a particular party, the request is phrased in an

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improper form, and Mr. Hendricks did not furnish information

within his exclusive control to enable a responding party to

answer. With respect to the defendants’ first two grounds for

objecting, there is no question that pro se documents, including

discovery requests, are held to less stringent standards than

documents drafted by lawyers and are to be liberally construed. 

See, e.g., Alli v. Savitz, Estate of, 2008 WL 3915147 (E.D. Mich.

August 20, 2008) citing McNeil v. Salan, 961 F.2d 1578, 1992 WL

102734, *4 (6th Cir. 1992) (unpublished). A fair reading of Mr.

Hendricks’ requests for admission indicates that the defendants

should be able to identify who among them is best capable of

responding to these requests. The requests are concisely drafted

and the information Mr. Hendricks is seeking in response, which

relate to the allegations of his gastrointestinal issues as set

forth in the complaint, is fairly clear. Further, to the extent

that the defendants have objected to certain requests on grounds

that the information relating to the request is within Mr.

Hendricks’ exclusive control, the Court is not convinced. The

majority of these requests appear to relate to information

contained in Mr. Hendricks’ medical records which unquestionably

are not within his exclusive control. Similarly, the requests

relating to Mr. Hendricks’ transfer from the Cuyahoga County Jail

- requests Nos. 1 and 2 - are not based on information

exclusively within his control. Construing these requests

liberally as the Court is required to do given Mr. Hendricks’ pro

se status, the Court will require the defendants to answer the

requests for admission consistent with the requirements of

Fed.R.Civ.P. 36(a)(4). 

This brings the Court to the two remaining issues raised by

Mr. Hendricks’ motion to compel - his request for sanctions and

his request for appointment of counsel. As the Court has

consistently stated, to date this case has not progressed to the

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point where the Court can determine Mr. Hendricks’ need for

counsel. Further, as the Court has noted previously, Mr.

Hendricks has been able to articulate and present his claims

capably. Consequently, the request for appointment of counsel

will be denied. Additionally, the Court does not find that

defendants’ discovery responses are of the nature justifying an

imposition of sanctions under Rule 37. Consequently, the request

for sanctions will be denied. 

IV.

Based on the foregoing, the motion to compel (#78) is

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

defendants shall supplement their responses as directed within

fourteen days of the date of this order. The request for

appointment of counsel and sanctions is denied. The motion for

extension of time (#83) is denied as moot. 

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.

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/s/ Terence P. Kemp 

United States Magistrate Judge

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