UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

James E. Rand

v. Civil No. 04-cv-382-JD

Merrimack County Department

of Corrections, et al.

O R D E R

James E. Rand, who is proceeding pro se, brought a civil

rights action under 42 U.S.C. § 1983, alleging that the

defendants failed to provide him necessary medical care and were

deliberately indifferent to his serious medical needs. Rand

propounded requests for admissions to two of the defendants,

Superintendent Carole Anderson and Assistant Superintendent

Richard Doucet, and received their responses on July 8, 2005. He

then communicated with the defendants’ counsel, expressing his

belief that the responses were inadequate. 

When no further responses were provided, Rand filed a motion

for judgment based on the defendants’ responses to his requests

for admissions. The court denied the motion without prejudice,

explaining that despite the title of the motion Rand was seeking

to compel more complete responses and that in the absence of a

copy of the requests and responses the court could not evaluate

the sufficiency of the defendants’ responses. Rand has filed a

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second motion for judgment, which again appears to challenge the

sufficiency of the defendants’ responses, this time with copies

of the pertinent documents. He seeks the sanction of deeming his

requests to be admitted. The defendants object to the motion.

A party may move to have a request be deemed admitted on the

ground that the response does not comply with the requirements of

the rule. Fed. R. Civ. P. 35(a). Here, Rand challenges the

accuracy of the defendants’ responses. As such, he does not seek

more complete answers but instead attempts to show that the

defendants’ responses are contradicted by other evidence that he

has provided in support of his motion. The truth of the

statements cannot be determined based on the present record. If,

in the course of this case, Rand is able to prove facts of

substantial importance to his case for which he sought admissions

that were denied by the defendants and the other elements of Rule

37(c)(2) are met, he may again move for sanctions.

That said, however, some of the defendants’ responses are

insufficient on their face and are addressed as follows. Request

number six asked the defendants to admit that the documents they

provided to Rand on April 12, 2005, and May 2, 2005, are

authenticated. The defendants objected but also answered: “the

defendants indicate that true copies of plaintiff’s inmate and

medical files were provided to him (bates stamped) as part of

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discovery and supplements will be hereafter provided.” That

response is deemed to mean that the copies of Rand’s inmate and

medical files that the defendants have provided to him, along

with other parts of the record they may in the future provide,

which are bates stamped, are genuine accurate copies of those

records and do not need further authentication. 

Request number thirteen asks Carole Anderson to admit that

she knew Rand’s attorney was concerned about his medical

condition. The defendants responded: “Objection. This request

calls for speculation and is outside the knowledge of the

defendants.” This request is deemed to be directed to Anderson

only. It is not speculation for her to answer whether she knew

that Rand’s attorney was concerned about his medical condition,

assuming that she understands which attorney and what time period

is relevant. Therefore, Anderson shall provide an amended

response that answers the question asked.

In many of the defendants’ responses they refer to

“emergent” and “non emergent” medical care, situations, or

conditions. Presumably, the defendants mean “emergency,” which

is the term that is used in the copy of part of the Merrimack

County Department of Corrections manual submitted by Rand. The

defendants shall clarify their use of the terms “emergent” and

“non emergent” in an amended response.

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The defendants shall serve and file an amended response that

complies with the requirements of the federal rules and this

order on or before December 19, 2005.

Conclusion

For the foregoing reasons, the plaintiff’s motion (document

no. 45) is granted in part and denied in part as is more fully

explained in this order. 

SO ORDERED.

_

Joseph A. DiClerico, Jr.

United States District Judge

December 6, 2005

cc: James E. Rand, pro se

John A. Curran, Esquire

Michael A. Pignatelli, Esquire

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