IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GEORGE LOPEZ, : Civil No. 3:21-CV-1819

: 

Plaintiff, : 

: (Judge Mehalchick)

v. : 

: 

JOHN WETZEL, et al., : (Magistrate Judge Carlson)

 : 

Defendants :

MEMORANDUM AND ORDER

I. Factual Background and Procedural History

This is a pro se prisoner civil rights action that was originally brought as a 

single lawsuit by six inmates held by the Department of Corrections challenging 

what they allege was unconstitutionally prolonged and severe solitary confinement 

by corrections staff. (Doc. 1). According to the plaintiffs they suffered severe 

emotional and psychological injuries due to this prolonged solitary confinement. 

(Id.) However, a review of the plaintiffs’ complaint revealed that these alleged 

instances of solitary confinement occurred at different places and times over the past 

two decades. (Id.) Further, the complaint asserted that each individual prisoner 

plaintiff suffered from distinct emotional impairments which were exacerbated in 

different ways by their confinement. (Id.) Thus, factually these six plaintiffs’ claims 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 1 of 11
2 

involved disparate acts and actors which have had different and distinct impacts 

upon their lives. 

On November 10, 2023, this case was referred to the undersigned for case 

management. Upon review, we noted that there were a number of motions pending 

in this case, including a motion signed by one plaintiff, George Lopez, who 

purported to speak on behalf of two other plaintiffs, Richard Poplawski and Gerald 

Watkins. (Doc. 135). In this motion these three inmate plaintiffs sought to sever their 

case from the complaints of plaintiffs Darien Houser, Ralph Stokes, and Jose Uderra. 

(Id.) 

The defendants took no position with respect to this motion, “as it appears to 

be a dispute between the Plaintiffs.” (Doc. 154). However, there was no indication 

that Uderra, Houser, and Stokes were served with a copy of this pleading filed by 

their erstwhile co-plaintiffs. Moreover, it was uncertain if inmates Richard 

Poplawski and Gerald Watkins concurred in Lopez’s motion to sever parties. 

Therefore, we were unclear regarding the position of all of these other plaintiffs on 

this request. Recognizing that this motion highlighted a number of the difficulties, 

challenges, and perils inherent in multi-plaintiff pro se litigation, on November 28, 

2023, we entered an order which denied the pro se motion to sever plaintiffs, (Doc. 

135), without prejudice and directed the plaintiffs to individually show cause on or 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 2 of 11
3 

before December 18, 2023, why their separate claims should not be severed into 

separate and distinct complaints. (Doc. 160). 

 We received some partial responses to this order, responses which highlighted

the burgeoning procedural chaos and discord which the current collective pro se

litigation created. Specifically, two of these inmate plaintiffs—Darien Houser and 

Ralph Stokes—objected to inmate Lopez’s plan to unilaterally jettison them this 

collective lawsuit. (Docs. 164 and 165). For his part, inmate Lopez filed a response 

which decries the lack of assistance and cooperation from his co-plaintiffs. (Doc. 

170). Purporting then to speak on his own behalf, and on behalf of inmates Richard 

Poplawski and Gerald Watkins, Lopez agreed to the severance of these six cases. 

(Id.) Poplawski and Watkins did not separately respond to this order. The final pro 

se plaintiff, inmate Uderra, also did not respond to this court order.

Given this procedural posture, we recommended that the increasingly 

discordant claims of these six inmate plaintiffs be severed. (Doc. 172). The district 

court adopted this recommendation and these cases have now been severed. (Doc. 

192). 

It is against this backdrop that we turn to consider two motions attributed to 

the plaintiff, George Lopez, which seek disclosure of prior grievances filed by Lopez 

as well as Corrections policies relating to solitary confinement of death row inmates, 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 3 of 11
4 

and incident reports relating to suicides of death row inmates. (Docs. 1671, 182). The 

defendants have responded to these requests by arguing that Lopez’s discovery 

demands were untimely in some instances, and by opposing Lopez’s demands for 

information regarding suicides by other, unidentified inmates. As for Lopez’s 

demands for copies of various grievances, the defendants indicate that some of the 

grievances requested by Lopez simply do not exist. Where grievances exist, the 

defendants acknowledge that there were some missteps in producing those 

grievances but state that all requested grievances have and will be produced. (Doc. 

185). 

These discovery issues are fully briefed and are, therefore, ripe for resolution. 

On these facts, as discussed below, Lopez’s motions to compel, (Docs. 167, 182), 

will be DENIED, but we will direct the parties to explore means by which some 

statistical data regarding the incidence of death row inmate suicide in solitary 

confinement can be identified and produced.

II. Discussion

Rulings regarding the proper scope of discovery are matters consigned to the 

court’s discretion and judgment. A court’s decisions regarding the conduct of 

1 Doc. 167 is docketed as a motion filed by Plaintiff George Lopez, but a review of 

the motion indicates that it was authored by inmate Houser. We have disposed of 

this motion on its merits in Houser’s case and will direct that the motion be 

termi9nated in this case as well. 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 4 of 11
5 

discovery will be disturbed only upon a showing of abuse of that discretion. 

Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This far-reaching 

discretion also extends to rulings by United States Magistrate Judges on discovery 

matters. In this regard:

District courts provide magistrate judges with particularly broad 

discretion in resolving discovery disputes. See Farmers & Merchs. 

Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585 

(D.N.J. 1997). When a magistrate judge’s decision involves a 

discretionary [discovery] matter . . ., “courts in this district have 

determined that the clearly erroneous standard implicitly becomes an 

abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224 

F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United 

States, 943 F. Supp. 501, 502 (E.D. Pa. 1996)). Under the standard, a 

magistrate judge’s discovery ruling “is entitled to great deference and 

is reversible only for abuse of discretion.” Kresefky v. Panasonic 

Commc’ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see also

Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 

(N.D.N.Y. 1999) (holding that discovery rulings are reviewed under 

abuse of discretion standard rather than de novo standard); EEOC v. 

Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a 

magistrate judge’s resolution of discovery disputes deserves substantial 

deference and should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 2735702, at *1 (D.N.J. Sept. 27, 2010).

The exercise of this discretion is guided, however, by certain basic principles. 

At the outset, Rule 26(b) of the Federal Rules of Civil Procedure generally defines 

the scope of discovery permitted in a civil action, prescribes certain limits to that 

discovery, and provides as follows:

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 5 of 11
6 

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope 

of discovery is as follows: Parties may obtain discovery regarding any 

nonprivileged matter that is relevant to any party’s claim or defense and 

proportional to the needs of the case, considering the importance of the 

issues at stake in the action, the amount in controversy, the parties' 

relative access to relevant information, the parties' resources, the 

importance of the discovery in resolving the issues, and whether the 

burden or expense of the proposed discovery outweighs its likely 

benefit. Information within this scope of discovery need not be 

admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b).

Thus, our discretion is limited in a number of significant ways by the scope 

of Rule 26 itself, which provides for discovery of only “nonprivileged matter that is 

relevant to any party’s claim or defense.” Accordingly, “[t]he Court’s discretion in 

ruling on discovery issues is, therefore, restricted to valid claims of relevance and 

privilege.” Robinson v. Folino, No. 14-227, 2016 WL 4678340, at *2 (citing Jackson 

v. Beard, No. 11-1431, 2014 WL 3868228, at *5 (M.D. Pa. Aug. 6, 2014) (“Although 

‘the scope of relevance in discovery is far broader than that allowed for evidentiary 

purposes, it is not without its limits.’ Courts will not permit discovery where a 

request is made in bad faith, unduly burdensome, irrelevant to the general subject 

matter of the action, or relates to confidential or privileged information”) (internal 

citations omitted)).

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 6 of 11
7 

 Therefore, at the outset, it is clear that Rule 26's definition of that which can 

be obtained through discovery reaches any nonprivileged matter that is relevant to 

any party’s claim or defense, and valid claims of relevance and privilege still cabin 

and restrict the court’s discretion in ruling on discovery issues. Furthermore, the 

scope of discovery permitted by Rule 26 embraces all relevant information, a 

concept which is not confined to admissible evidence but is also defined in the 

following terms: “Information within this scope of discovery need not be admissible 

in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Rather, Rule 26 states that 

“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant 

to any party's claim or defense.” This concept of relevance is tempered, however, by 

principles of proportionality. Thus, we are now enjoined to also consider whether 

the specific discovery sought is “proportional to the needs of the case, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties' relative access to relevant information, the parties' resources, the importance 

of the discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “Thus, it 

has been said that the amended rule ‘restores the proportionality factors to their 

original place in defining the scope of discovery.’ ” Fassett v. Sears Holdings Corp., 

319 F.R.D. 143, 150 (M.D. Pa. 2017) (quoting Wertz v. GEA Heat Exchangers Inc., 

No. 1:14-CV-1991, 2015 WL 8959408, at *2 (M.D. Pa. Dec. 16, 2015)). 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 7 of 11
8 

A party moving to compel discovery bears the initial burden of proving the 

relevance of the requested information. Morrison v. Philadelphia Housing

Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001). Once that initial burden is met, “the 

party resisting the discovery has the burden to establish the lack of relevance by 

demonstrating that the requested discovery (1) does not come within the broad scope 

of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal 

relevance that the potential harm occasioned by discovery would outweigh the 

ordinary presumption in favor of broad disclosure.” In re Urethane Antitrust

Litigation, 261 F.R.D. 570, 573 (D. Kan. 2009).

Further:

One other immutable factor governs the scope of discovery under Rule 

26. “It is an obvious truism that a court should not enter an order 

compelling a party to produce documents where the documents do not

exist.” Wells v. JPC Equestrian, Inc., No. 3:13-CV-2575, 2014 WL 

5641305, at *4 (M.D. Pa. Nov. 4, 2014). It is clear, therefore, that the 

court cannot compel the production of things that do not exist. Nor can 

the court compel the creation of evidence by parties who attest that they 

do not possess the materials sought by an adversary in litigation. See,

e.g., AFSCME District Council 47 Health and Welfare Fund v. OrthoMcNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL 

5186088 (E.D. Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698, 

2009 WL 975251 (M.D. Pa. April 9, 2009). See Lawson v. Love's

Travel Stops & Country Stores, Inc., No. 1:17-CV-1266, 2019 WL 

5622453, at *4 (M.D. Pa. Oct. 31, 2019).

Palmer v. York Cnty., Pennsylvania, No. 1:20-CV-539, 2022 WL 4473595, at *2 

(M.D. Pa. Sept. 26, 2022). These legal benchmarks guide us in consideration of 

Lopez’s motions to compel.

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 8 of 11
9 

As we construe it, in these discovery motions Lopez seeks two categories of 

information. First, he demands production of various grievances which he has filed 

over time objecting to the conditions of his confinement. As for these demands for 

copies of various grievances, the defendants indicate that some of the specific 

grievances requested by Lopez simply do not exist. Since “[i]t is clear that the court 

cannot compel the production of things that do not exist,” Tech v. United States, 284 

F.R.D. 192, 198 (M.D. Pa. 2012), this request for production of records that the 

defendants have stated do not exist will be denied. Further, where grievances exist, 

the defendants have candidly acknowledged that there were some missteps in 

producing those grievances but state that all requested grievances have and will be 

produced. In light of this representation that the existing grievances have been 

produced, the request to compel further production of grievances will be dismissed 

as moot. See Hopson v. Pennsylvania Bd. of Prob. & Parole, No. 3:10-CV-782, 2011 

WL 2393872, at *2 (M.D. Pa. June 13, 2011).

Lopez has also sought incident reports relating to inmate suicides involving 

prisoners who are not parties to this litigation. Prisoner requests for personal 

information relating to other inmates who are not parties to litigation raise particular 

privacy and security concerns. Indeed, as we have noted these demands:

are precisely the kinds of sweeping, generalized and overly broad 

discovery requests judges in the Middle District of Pennsylvania have 

rejected as being not only overly broad, but unduly infringing upon the 

privacy interests of other inmates who may have sought to grieve 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 9 of 11
10

unrelated issues that they had with staff. See, e.g., Montanez v. Tritt, 

Civ. No. 3:14-CV-1362, 2016 WL 3035310, at *4 (M.D. Pa. May 26, 

2016) (denying motion to compel production of incident reports, 

grievances and other documents involving other inmates where they 

were found to be “overly broad, irrelevant, confidential, [and to] bear 

no sufficient connection to this case and raise obvious privacy and 

security issues.”) (Mariani, J.); Lofton v. Wetzel, Civ. No. 1:12-CV1133, 2015 WL 5761918, at *2 (M.D. Pa. Sept. 9, 2015) (Conner, C.J.) 

(“It is apparent that [the plaintiff’s] requests for ‘any and all’ records of 

inspection, and ‘all’ incident reports and grievances are a grossly 

overstated fishing expedition. [His] request for incident reports and 

grievances regarding other inmates raises obvious privacy and security 

issues, and the relevance of such information is questionable at best.”); 

Sloan v. Murray, No. 3:11-CV-994, 2013 WL 5551162, at *4 (M.D. Pa. 

Oct. 8, 2013) (Caputo, J.) (denying motion to compel grievance 

responses that concerned other inmates, citing DOC policy prohibiting 

inmates from receiving information about one another); Torres v.

Clark, Civ. No. 1:10-CV-1323, 2011 WL 4898168, at *2-3 (M.D. Pa. 

Oct. 13, 2011) (Caldwell, J.) (denying motion to compel inmate request 

for discovery of 27-months of grievances about a specific cell block, 

finding it to be overly broad, burdensome, and potentially implicating 

privacy interests of other inmates); McDowell v. Litz, Civ. No. 1:CV08-1453, 2009 WL 2058712, at *3 (M.D. Pa. July 10, 2009) (Rambo, 

J.) (finding requests for discovery of grievances filed by non-party 

inmates to be “overbroad and overly burdensome” and agreeing with 

the defendants' “concerns about accessing private information with 

respect to other inmates' grievances.”); Callaham v. Mataloni, Civ. No. 

4:CV-06-1109, 2009 WL 1363368, at *3-4 (M.D. Pa. May 14, 2009) 

(Jones, J.) (denying motion to compel, inter alia, grievances relating to 

medical treatment of other inmates, citing privacy concerns); cf. Banks

v. Beard, Civ. No. 3:CV-10-1480, 2013 WL 3773837, at *5 (M.D. Pa. 

July 17, 2013) (Munley, J.) (denying motion to compel account 

statements for other inmates despite plaintiff’s claim of relevance).

Torres v. Harris, No. 4:17-CV-1977, 2019 WL 265804, at *4 (M.D. Pa. Jan. 18, 

2019). Therefore, these demands, which as propounded seek highly personal details 

relating to these inmates, will be denied without prejudice to the parties exploring 

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 10 of 11
11

whether some arguably relevant but generalized information regarding the incidence 

of death row inmate suicide may exist and be produced in a format that does not 

violate the personal privacy of specific prisoners. 

An appropriate order follows.

III. Order

In accordance with the accompanying Memorandum, Lopez’s motions to 

compel, (Docs. 167, 182), are DENIED, but we will direct the parties to explore 

means by which some statistical data regarding the incidence of death row inmate 

suicide in solitary confinement can be identified and produced. 

So ordered this 6th day of May 2024.

S/Martin C. Carlson

Martin C. Carlson 

 United States Magistrate Judge

Case 3:21-cv-01819-KM Document 202 Filed 05/06/24 Page 11 of 11