Heid v. Mohr

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAY SCOTT HEID, et al.,

Plaintiff,

Case No. 2:18-cv-311

v. Chief Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

GARY MOHR, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of Defendants’ Motion for Protective

Order (ECF No. 138); Plaintiffs’ Motion for Court Ordered Discovery Plan (ECF No. 140);

Plaintiffs’ Motion to Compel Defendants to Respond to Request for Interrogatories, Request for

Production, and Requests for Admissions (ECF No. 141); Plaintiffs’ Motion for Discovery

Sanctions (ECF No. 152); and Plaintiffs’ Motion for Rule 11 Sanctions (ECF No. 154). Each of

these Motions is ripe for decision. For the reasons stated herein, Defendants’ Motion for

Protective Order (ECF No. 138) is GRANTED; Plaintiffs’ Motion for Court Ordered Discovery

Plan (ECF No. 140) is DENIED WITHOUT PREUDICE; Plaintiffs’ Motion to Compel

Defendants to Respond to Request for Interrogatories, Request for Production, and Requests for

Admissions (ECF No. 141) is GRANTED IN PART AND DENIED IN PART; Plaintiffs’

Motion for Discovery Sanctions (ECF No. 152) is DENIED; and Plaintiffs’ Motion for Rule 11

Sanctions (ECF No. 154) is DENIED.

I.

From January 2020 to June 2020, Plaintiffs, proceeding without the assistance of counsel,

served various discovery requests upon Defendants. (See ECF No. 138-3 at PAGEID ## 2248-

2280 (the “Discovery Requests”).) On March 17, 2020, Defendants’ counsel sent Plaintiffs a

letter objecting to certain Discovery Requests as “offensive, seek[ing] personal information not

related to the litigation, and beyond the bounds of what is tolerated in civil litigation,” and

advising Plaintiffs that “[i]f you do not submit modified requests by April 1, 2020 or my office

does not receive a letter from you regarding this discovery requests, then I will move forward

with filing a Motion for Protective Order.” (Id. at PAGEID ## 2241-2244.) On March 23, 2020,

Plaintiff Damron responded to the March 17, 2020 letter and advised Defendants’ counsel to “do

whatever it is you plan to.” (Id. at PAGEID ## 2245-2246.) Accordingly, on August 5, 2020,

Defendants filed their Motion for Protective Order. (ECF No. 138 (“Defendants’ Motion”).) On

August 20, 2020, Plaintiffs filed a related Motion to Compel Defendants to Respond to Request

for Interrogatories, Request for Production, and Requests for Admissions. (ECF No. 141

(“Plaintiffs’ Motion to Compel”).) The parties then fully briefed Defendants’ Motion and

Plaintiffs’ Motion to Compel. (See ECF Nos. 143-145, 151-152.)

Separately, on August 20, 2020, Plaintiffs filed Plaintiffs’ Motion for Court Ordered

Discovery Plan, setting forth a proposed deposition protocol. (ECF No. 140 (“Plaintiffs’ Motion

for Deposition Protocol”).) Defendants never responded to Plaintiffs’ Motion for Deposition

Protocol.

Finally, on October 26, 2020, after the above briefing had concluded, Plaintiffs filed a

Motion for Rule 11 Sanctions, seeking various sanctions related to Defendants’ response to

Plaintiffs’ Motion to Compel. (ECF No. 154 (“Plaintiffs’ Motion for Sanctions”).) Plaintiffs’

arguments echoed, and expanded upon, arguments raised in their Motion for Discovery

Sanctions, which was attached to Plaintiffs’ reply brief in support of Plaintiffs’ Motion to

Compel. (See ECF No. 152 at PAGEID ## 2408-2410.) Defendants responded to Plaintiffs’

Motion for Sanctions on November 16, 2020. (ECF No. 156.) Plaintiffs did not file a Reply

brief.

Accordingly, Defendants’ Motion (ECF No. 138), Plaintiffs’ Motion for Deposition

Protocol (ECF No. 140), Plaintiffs’ Motion to Compel (ECF No. 141), Plaintiffs’ Motion for

Discovery Sanctions (ECF No. 152), and Plaintiffs’ Motion for Sanctions (ECF No. 154) are all

ripe for this Court’s review.

II.

“District courts have broad discretion over docket control and the discovery process.”

Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citation omitted). “‘It is

well established that the scope of discovery is within the sound discretion of the trial court.’” Id.

(quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). The Federal Rules of Civil

Procedure provide that “[p]arties 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. . . .” Fed. R.

Civ. P. 26(b)(1). While a plaintiff should “not be denied access to information necessary to

establish her claim,” a plaintiff may not be “permitted to ‘go fishing’ and a trial court retains

discretion to determine that a discovery request is too broad and oppressive.” In re Ohio

Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016) (citation omitted); see also

Gallagher v. Anthony, No. 16-cv-00284, 2016 WL 2997599, at *1 (N.D. Ohio May 24, 2016)

(“[D]istrict courts have discretion to limit the scope of discovery where the information sought is

overly broad or would prove unduly burdensome to produce.”).

Federal Rule of Civil Procedure 37 permits a party to file a motion for an order

compelling discovery if another party fails to respond to discovery requests, provided that the

motion to compel includes a certification that the movant has, in good faith, conferred or

attempted to confer with the party failing to respond to the requests. Fed. R. Civ. P. 37(a)(1).

The Court is satisfied that this prerequisite to filing a discovery motion has been satisfied, as the

parties have attached correspondence between the parties seeking to resolve the discovery

disputes. (See ECF No. 138-1 at PAGEID ## 2241-2247.)

Determining the scope of discovery is within the Court’s discretion. Bush v. Dictaphone

Corp., 161 F.3d 363, 367 (6th Cir. 1998). “The proponent of a motion to compel discovery bears

the initial burden of proving that the information sought is relevant.” Gruenbaum v. Werner

Enter., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010) (citation omitted). If the movant makes this

showing, “then the burden shifts to the non-movant to show that to produce the information

would be unduly burdensome.” Prado v. Thomas, No. 3:16-CV-306, 2017 WL 5151377, at *1

(S.D. Ohio Oct. 19, 2017) (citing O’Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio

2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (stating

that a party claiming undue burden or expense “ordinarily has far better information—perhaps

the only information—with respect to that part of the determination” and that a “party claiming

that a request is important to resolve the issues should be able to explain the ways in which the

underlying information bears on the issues as that party understands them”).

The Federal Rules of Civil Procedure grant parties the right to “obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.

P. 26(b)(1); see also Siriano v. Goodman Mfg. Co., L.P., No. 2:14-CV-1131, 2015 WL 8259548,

at *5 (S.D. Ohio Dec. 9, 2015). “Relevance is construed very broadly for discovery purposes.”

Doe v. Ohio State Univ., No. 2:16-CV-171, 2018 WL 1373868, at *2 (S.D. Ohio Mar. 19, 2018)

(emphasis in original) (citation omitted). Despite being construed broadly, the concept of

relevance is not unlimited. Averett v. Honda of Am. Mfg., Inc., No. 2:07-cv-1167, 2009 WL

799638, at *2 (S.D. Ohio March 24, 2009). Indeed, “[t]o satisfy the discoverability standard, the

information sought must have more than minimal relevance to the claims or defenses.” Doe,

2018 WL 1373868 at *2 (citations omitted). Furthermore, when information is “negligibly

relevant [or] minimally important in resolving the issues” it will not satisfy the standard. Id.

(citation omitted).

Under Federal Rule of Civil Procedure 26, “[t]he court may, for good cause, issue an

order to protect a party or person from annoyance, embarrassment, oppression, or undue burden

of expense, . . .” Fed. R. Civ. P. 26(c)(1). The burden of establishing good cause for a

protective order rests with the movant. Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001)

(citing General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). The

decision to grant or deny a motion for protective order “falls within the broad discretion of the

district court managing the case.” Century Prod., Inc. v. Sutter, 837 F.2d 247, 250 (6th Cir.

1988). “To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a

protective order is appropriate and what degree of protection is required . . . . The trial court is in

the best position to weigh fairly the competing needs and interests of the parties affected by

discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

Under Federal Rule of Civil Procedure 36(a)(6), the requesting party may challenge the

sufficiency of an answer or objection to a request for admission. Under the Rule, “[u]nless the

court finds an objection justified, it must order that an answer be served,” and “[o]n finding that

an answer does not comply with this rule, the court may order either that the matter is admitted

or that an amended answer be served.” Fed. R. Civ. P. 36(a)(6). The requesting party bears the

burden of demonstrating that the responding party’s answers or objections were insufficient.

Snyder v. Fleetwood RV, Inc., No. 2:13-CV-1019, 2016 WL 339972, at *7 (S.D. Ohio Jan. 28,

2016).

“[T]he Federal Rules of Civil Procedure instruct district courts to limit discovery where

its ‘burden or expense . . . outweighs its likely benefit, taking into account the needs of the case,

the amount in controversy, the parties’ resources, the importance of the issues at stake in the

litigation, and the importance of the proposed discovery in resolving the issues.’” Surles ex rel.

Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (quoting former Fed. R.

Civ. P. 26(b)(2)(C)(iii)). This Court has previously held that “[t]hese factors are retained in

revised Fed. R. Civ. P. 26(b)(1), reflecting ‘their original place in defining the scope of

discovery’” because “‘restoring proportionality’ is the touchstone of revised Rule 26(b)(1)’s

scope of discovery provisions.” Siriano, 2015 WL 8259548, at *5 (citing Fed. R. Civ. P.

26(b)(1)). In analyzing the extent of the burden on the producing party, the Court of Appeals for

the Sixth Circuit “has held that limiting the scope of discovery is appropriate when compliance

‘would prove unduly burdensome,’ not merely expensive or time-consuming.” Id. (citing Surles,

575 F.3d at 305) (emphasis in original).

III.

Applying the foregoing authority, the Court now considers in turn the pending motions,

starting with the pending discovery motions: Defendants’ Motion (ECF No. 138) and Plaintiffs’

Motion to Compel (ECF No. 141).

A. Defendants’ Motion

Defendants seek an order of protection regarding various requests for admissions and

other discovery. (ECF No. 138.) Defendants categorizes the subject requests for admissions into

three categories: “Personal Belief Requests”; “Generalized or Hypothetical Requests”; and

“Miscellaneous” requests. (Id.) For the sake of consistency, the Court adopts Defendants’

categorizations of the subject requests, and will analyze each of Defendants’ arguments in turn

below.

1. Personal Belief Requests

First, Defendants identify seven1 “Personal Belief Requests” which Defendants argue

“are personal questions that are unrelated to Defendants[’] positions as Ohio Department of

Rehabilitation and Correction (“ODRC”) employees but rather seek their personal opinions and

perspectives.” (ECF No. 138 at PAGEID ## 2232-2235.) Although the specific Personal Belief

Requests differ from Defendant to Defendant, they are substantially identical, to the extent

Plaintiffs ask Defendants to admit the following:

1. You are not a Constitutional originalist.

2. You are a Constitutional [or political] progressive.

3. You do not support the preservation of the racial purity of the White race.

4. You do not support miscegenation.

5. You do not believe in creationism, i.e., human beings were created by God.

6. You participate in social change agendas.

7. You believe that White people who wish to remain racially pure are white

supremacists or otherwise STG affiliates.

1 Defendants discuss an “eighth” request for admission, but only listed seven Personal Belief

Requests. (Compare ECF No. 138 at PAGEID # 2232, with id. at PAGEID # 2235.) The Court

cannot guess whether Defendants intended to include any other Personal Belief Requests.

(Id.; see also ECF No. 138-3 at PAGEID ## 2253-2254 (directed to Defendant Graves); ECF No.

138-4 at PAGEID # 2264 (directed to Defendant Gobels); ECF No. 138-5 at PAGEID # 2275

(directed to Defendant Dolan); ECF No. 138-6 at PAGEID ## 2287, 2291 (directed to Defendant

Gillum); ECF No. 138-7 at PAGEID ## 2299, 2303 (directed to Defendant Norris); ECF No.

138-8 at PAGEID ## 2309-2310 (directed to Defendant Clark).) Defendants argue that these

Personal Belief Requests are irrelevant to Plaintiffs’ claims, and indeed are “unrelated to

objective fact, application of law to fact, or opinions on either,” which is the scope of requests

for admissions set forth by Federal Rule of Civil Procedure 36(a). (ECF No. 138 at PAGEID ##

2232-2235.)

In response, Plaintiffs argue that Defendants’ refusal to answer these Personal Belief

Requests “will irrefutably prejudice the Plaintiffs’ claims against the Defendants in their

individual capacities where Plaintiffs will be prohibited from proving that Defendants acted

outside the scope of their employment.” (ECF No. 143 at PAGEID # 2358.) Specifically,

Plaintiffs argue that the first two Personal Belief Requests “are related to the establishment of

facts relevant to Plaintiffs’ equal treatment and discrimination claims.” (Id. at PAGEID # 2359.)

Specifically, Plaintiffs believe “the answers to these admissions will show a determinative

probability that Defendant[s] [have or haven’t] used bias or political interest to discriminate

against Plaintiffs” and “may lead to evidence of a pattern of conduct where STG policies are

used by political opponents of Aryan-American Nationalists to keep such idea[s] suppressed.”

(Id. at PAGEID # 2360.)

As to the third and fourth Personal Belief Requests, Plaintiffs argue that their “beliefs and

ideologies . . . are to preserve the racial integrity of the White race,” so “these requests are

relevant as they establish evidence having a tendency to make the existence of the Defendants’

malicious state of mind a consequence to the determination of whether Defendants acted

maliciously.” (Id. at PAGEID ## 2360-2361.) Next, Plaintiffs argue that the fifth Personal

Belief Request seeks “facts relating to the state of mind of Defendants’ opinions about

Christianity” and “would establish whether or not Defendants oppose the beliefs of Christianity,”

which Plaintiffs believe would provide circumstantial evidence that “could be the determinative

factor in a jury’s finding of malicious intent.” (Id. at PAGEID # 2361.)

Plaintiffs maintain that the sixth Personal Belief Request is relevant because “social

change agendas of today are seemingly targeted at eradicating Aryan history,” and Defendants’

positions allow them to “carry out what they see as ‘social change agendas’ by using their STG

policies to oppress an entire class of people: Aryan-Americans.” (Id. at PAGEID ## 2361-

2362.) Finally, Plaintiffs contend that the last Personal Belief Request “is meant to evince the

fact that Defendants use their STG policies to police thoughts and ideas” by “weaponiz[ing] the

policies under their control to irresponsibly criminalize Aryan-Americans for the belief of racial

purity.” (Id. at PAGEID # 2362.) Again, Plaintiffs argue this Personal Belief Request “goes

directly to the relevancy of the Defendants’ malicious actions.” (Id. at PAGEID ## 2362-2363.)

The Court finds that Plaintiffs’ Personal Belief Requests are beyond the scope of

permissible requests for admissions because they are irrelevant to their claims and intended

solely to harass Defendants. Critically, Plaintiffs have failed to show that the information sought

is relevant. Gruenbaum, 270 F.R.D. at 302. Plaintiffs appear to believe that they can seek nearly

any personal information or opinion from Defendants because they have asserted claims against

them in their individual capacities. But the concept of relevance is not unlimited. Plaintiffs’

discovery requests must still have some connection to their claims, and the Personal Belief

Requests completely fail this basic test.

Defendants’ constitutional or political opinions, their views about racial purity or

miscegenation, their religious beliefs, their participation in “social change agendas” (an

undefined term), and their personal definition of white supremacy have no bearing on this case.

For example, to the extent Plaintiffs believe the answers to such requests may lead to evidence of

Defendants’ malice, they are incorrect. None of the Personal Belief Requests goes towards a

“(1) state of mind under which a person’s conduct is characterized by hatred, ill will, or a spirit

of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great

probability of causing substantial harm,” which is the definition of malice that has been adopted

by Ohio courts. See MacNeill v. Wyatt, 917 F. Supp. 2d 726, 729 (S.D. Ohio 2013) (citing

Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174, syllabus (Ohio 1987)). Finally, the

Court rejects outright Plaintiffs’ argument that allowing Defendants not to answer the Personal

Belief Requests will prejudice their ability to prove “that Defendants acted outside the scope of

their employment.” (ECF No. 143 at PAGEID # 2358.) Every person has personal, political,

racial, religious, and social views. Merely having personal views and beliefs does not mean that

someone was acting outside the scope of one’s employment.

Federal Rule of Civil Procedure 26(c)(1) was designed for situations just as this, where

the Court must step in to protect a party from “annoyance, embarrassment, oppression, or undue

burden or expense.” Accordingly, Defendants’ Motion (ECF No. 138) is GRANTED as to the

Personal Belief Requests.

2. Generalized or Hypothetical Requests

Next, Defendants identify eleven “Generalized or Hypothetical Requests” which

Defendants argue are either “generalized in a manner such that it is impossible to either admit or

deny” or “do not have a definitive answer and the varying responses are heavily context

dependent.” (ECF No. 138 at PAGEID ## 2235-2238.) Unlike the Personal Belief Requests,

which were served on all Defendants, only Defendant Graves was served with the Generalized or

Hypothetical Requests, which read as follows:

1. STG offenders are considered home grown terrorists.

2. STG affiliates are considered violent offenders.

3. STG affiliates are considered a threat to society.

4. STG affiliates are considered a threat to the security and good order of the

institutions.

5. Ideas of racial separation will result in an STG classification with a separatist group.

6. STG classifications bear a determining factor to parole suitability pursuant to OAC

5120-1-1-07.

7. It is completely possible that one profiled as a member of the STG affiliation of white

separatists does not know any other member, has never met any other member, and is

oblivious to the existence of any other white separatist.

8. An offender who doesn’t know that a white separatist[] group exist[s] will

nonetheless be profile[d] as a member thereto if he is white and admits a belief in

racial separation.

9. There are more inmates who prefer to cell with members of their own race than there

are of inmates who prefer to cell with members of a different race.

10. The only alternative to the practice of forced racial integrated cell assignment is to be

profiled as an STG affiliate.

11. More White inmates are transferred from level-2 institutions to level-3 institutions for

non-violent STG reasons than are black inmates.

(Id.; see also ECF No. 138-3 at PAGEID ## 2254-2256.) As to the first five Generalized or

Hypothetical Requests, Defendants argue that the answers depend on each individual, and “each

individual inmate is different.” (ECF No. 138 at PAGEID # 2235.) Defendants submit that “the

threat level or violence level of an individual may consider factors such as the inmate’s

underlying offense, institutional disciplinary record, interactions with officers and institutional

personnel, interactions with other inmates, and other considerations.” Defendants continue that

“[a]ccurately responding to any of these requests would place an undue burden on Defendants

because it would require them to account for every single inmate’s personal background, history,

and seemingly endless other factors.” (Id. at PAGEID ## 2235-2236.)

Plaintiffs respond that the first five Generalized or Hypothetical Requests “are specific

and do[] not call for an answer to ‘every potential variant.’” (ECF No. 143 at PAGEID # 2363.)

Plaintiffs argue that the discovery definitions instruct Defendants to understand that “the use of

the singular form of any word includes the plural and vice versa,” so with regard to the first

Generalized or Hypothetical Request, for example, Plaintiffs state that they seek to know

whether “one or more STG offenders are considered a homegrown terrorist,” rather than whether

all “STG offenders are considered home grown terrorists,” as the request reads literally. (Id.

(emphasis added).) The Court rejects Plaintiffs’ argument, as Plaintiffs have failed to show how

knowing whether any STG offender is considered a homegrown terrorist, a violent offender, or a

threat to society, has any bearing on Plaintiffs’ claims. Plaintiffs are wrong to conclude that one

STG offenders’ circumstances are necessarily applicable to anyone else, let alone everyone else,

and the Court rejects Plaintiffs’ argument that such requests are connected to Plaintiffs’ theory

that Defendants are trying to suppress or oppress “Aryan culture.” (Id. at PAGEID # 2365.)

Conversely, the Court also agrees that it would be unduly burdensome to compel Defendants to

answer these Generalized or Hypothetical Requests, because doing so would necessarily require

Defendants to account for every single inmate.

With regard to the sixth Generalized or Hypothetical Request, Defendants argue that “the

issue of parole eligibility is irrelevant . . . because it is unconnected to Plaintiffs’ claims of First

Amendment, Fourteenth Amendment, and RLUIPA violations,” and because both Plaintiffs are

facing potential life sentences that are not being challenged. (ECF No. 138 at PAGEID # 2236.)

Defendants further suggest that the request is inappropriate because “none of the named

Defendants are members of the parole board.” (Id.) Plaintiffs do not respond to these

arguments.2 The Court concludes that Defendants’ arguments are well taken.

Finally, Defendants argue that the last five Generalized or Hypothetical Requests “are

impossible to answer, and therefore, are unduly burdensome.” (Id.) Defendants state that “[a]

simple admission or denial of any of these requests would be misleading and inaccurate,” and

“[d]etailed answers would require in-depth analysis of all potential variables, resulting in

responses that could fill an entire treatise.” (Id. at PAGEID ## 2237-2238.) Plaintiffs only

respond regarding the last three Generalized or Hypothetical Requests,3 arguing that they “are

relevant . . . as they go to the theory of the case insofar that they show the discriminatory use of

STG policies.” (ECF No. 143 at PAGEID # 2365.) The Court rejects Plaintiffs’ argument.

Plaintiffs again seek black-and-white admissions to context-dependent questions. But such

oversimplification is overbroad, unduly burdensome, and does not serve the purpose of requests

for admissions. Cogent Sols. Grp., LLC v. Brown, No. 2:12-CV-665, 2013 WL 12121522, at *2

(S.D. Ohio Mar. 4, 2013) (“Requests for admissions . . . differ from other discovery tools

contemplated under the Federal Rules of Civil Procedure. ‘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.’”) (citing Quicken Loans v. Jolly, No. 2:07-cv-13143, 2007

WL 3408551, at *2 (E.D. Mich. Nov. 15, 2007) (citing 4 Moore's Federal Practice, 36.04(2);

2 In Defendants’ reply brief, Defendants notes that Plaintiffs’ opposition “seems to be incomplete

and missing pages from their response.” (ECF No. 151 at PAGEID # 2400.) Despite this notice,

Plaintiffs failed to supplement their opposition brief with the missing page, which may or may

not contain argument about the Generalized or Hypothetical Requests. In the absence of such

supplementation, the Court is limited to the briefing before it.

3 See Note 1.

Wright, Federal Courts, sec. 89 at p. 343)); see also Static Control Components, Inc. v. Lexmark

Int'l, Inc., No. 5:02-571, 2007 WL 1485867, at *3 (E.D. Ky. Apr. 19, 2007) (quoting T. Rowe

Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 42 (S.D.N.Y. 1997)) (“[T]he

purpose of requests for admission ‘is to reduce the costs of litigation by eliminating the necessity

of proving facts that are not in substantial dispute, to narrow the scope of disputed issues, and to

facilitate the presentation of cases to the trier of fact.’”).

Accordingly, Defendants’ Motion (ECF No. 138) is GRANTED as to the Generalized or

Hypothetical Requests.

3. Miscellaneous Requests

Finally, Defendants identify five “Miscellaneous Requests” as objectionable. (ECF No.

138 at PAGEID ## 2238-2239.) Again, the Miscellaneous Requests were only propounded upon

Defendant Graves, and they read as follows:

1. Policy 310-SEC-12 is linked with law enforcement data outside of prison, e.g., STG

classifications follow the offender after release.

2. Inmates are forced, under threat of punishment via 5120-9-06(C)(23), to racial

integrated cell assignments.

3. ODRC uses its practice of forced integration to keep Aryan-Americans from being

suitable for level-2 housing.

4. White supremacy is the practice of enslaving other races under white subjugation.

5. White superiority is the belief that the White race [has] better overall attributes than

other races.

(Id.; see also ECF No. 138-3 at PAGEID ## 2254-2256.) Defendants argue that the first

Miscellaneous Request “seeks [] information regarding a confidential policy that inmates are not

allowed to possess,” because the cited policy “is vital to the institutional security of all ODRC

facilities and their operations” and “[d]isclosure of these policies would jeopardize such

security.” (ECF No. 138 at PAGEID # 2238.) Next, Defendants argue that the second

Miscellaneous Request “is irrelevant and improper because Plaintiffs are not suing based upon a

perceived constitutional violation due to a cell assignment,” but regardless “it is well known that

any governmental entity is forbidden from segregating based on race” under Title VI of the Civil

Rights Act of 1964. (Id.) For that reason, Defendants also argue that the third Miscellaneous

Request is improper. (Id.) Finally, Defendants argue that the fourth and fifth Miscellaneous

Requests are improper because “there is not one definitive definition” for “white supremacy” or

“white superiority,” and regardless, “white supremacy and white superiority are not at issue in

the present lawsuit, making these questions and any responses to these questions completely

irrelevant.” (Id. at PAGEID ## 2238-2239.)

Plaintiffs respond by arguing that the First Miscellaneous Request “simply asks if the

STG policy is linked with law enforcement data outside [of] the prison system,” which “shows

the long lasting effects that a capricious STG profiling can have.” (ECF No. 143 at PAGEID ##

2367.) The Court disagrees, and agrees instead with Defendants that “[c]onfirmation or denial of

security protocols effects security operations,” and the Court finds that Plaintiffs have failed to

show otherwise. (ECF No. 151 at PAGEID # 2401.) Regardless, the Court finds that Plaintiffs

have failed to show how this request is relevant to their claims, given that the subject lawsuit

does not concern any potential release from incarceration. (Id. at PAGEID # 2402.)

Plaintiffs also respond that the second Miscellaneous Request “is relevant . . . as the

information sought would establish the probability that Defendants use the STG policy to entrap

inmates who hold beliefs the Defendants oppose.” (ECF No. 143 at PAGEID # 2367.) The

Court again disagrees and finds this request to be irrelevant, as it is disconnected from Plaintiffs’

claims in this case and because it is based on the false premise that racial integration is a

“forced” policy decision by Defendants to maintain order, rather than the law of the land.

Rather, as the Supreme Court of the United States has recognized multiple times, racial

classifications in prisons “threaten to stigmatize individuals by reason of their membership in a

racial group and to incite racial hostility.” Johnson v. California, 543 U.S. 499, 507 (2005)

(“Indeed, by insisting that inmates be housed only with other inmates of the same race, it is

possible that prison officials will breed further hostility among prisoners and reinforce racial and

ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmates

‘may exacerbate the very patterns of [violence that it is] said to counteract.’”) (emphasis in

original; internal citations omitted); see also Brand v. Motley, 526 F.3d 921, 924 (6th Cir. 2008)

(“In prison housing, the Equal Protection Clause forbids racial classifications absent compelling

justifications and a narrowly tailored plan.”) (citing Johnson); Blacker v. Satterthwaite, No. 1:08-

CV-874, 2011 WL 6338851, at *4 (S.D. Ohio Oct. 14, 2011), report and recommendation

adopted, No. 1:08-CV-874, 2011 WL 6370054 (S.D. Ohio Dec. 19, 2011) (“Certainly, prison

officials ordinarily cannot be faulted for refusing to segregate prisoners on the basis of race,

since such a policy would subject them to potential liability on other constitutional grounds.”)

(citing Johnson).4 The Court also finds that the third Miscellaneous Request is improper for this

reason.

Finally, Plaintiffs argue that the final two Miscellaneous Requests “are directly relevant

in this case,” and “[i]f the Defendants do not agree with these definitions they could have simply

4 The Court also takes judicial notice that Plaintiffs themselves have had an equal protection

claim screened out by this Court for failure to state a claim upon which relief could be granted.

See Heid v. Hooks, No. 2:17-CV-650, 2017 WL 4076465, at *2 (S.D. Ohio Sept. 14, 2017),

report and recommendation adopted, No. 2:17-CV-650, 2018 WL 3628248 (S.D. Ohio July 31,

2018) (“Inmates retain the right to be free from government-sponsored race discrimination

absent a compelling governmental interest supporting the racial classification.”) (citing Johnson).

Plaintiffs therefore should be well versed in the holding and application of the Johnson decision.

denied the request pursuant to FRCP 36.” (ECF No. 143 at PAGEID # 2367.) The Court

disagrees, and finds that personal definitions of “white supremacy” and “white superiority” are

not relevant to this case. As discussed, “Rule 36 is not a discovery device,” and these two

Miscellaneous Requests go beyond the scope of Rule 36. Cogent Sols. Grp., LLC, 2013 WL

12121522, at *2 (internal citations omitted); see also Fed. R. Civ. P. 36(a)(1) (“A party may

serve on any other party a written request to admit, for purposes of the pending action only, the

truth of any matters within the scope of Rule 26(b)(1) relating to . . . facts, the application of law

to fact, or opinions about either.”).

Accordingly, Defendants’ Motion (ECF No. 138) is GRANTED as to the Miscellaneous

Requests.

4. Relief

For the reasons discussed above, it is ORDERED that Defendants need not respond to

the Personal Belief Requests, the Hypothetical or Generalized Requests, or the Miscellaneous

Requests. Defendants additionally request, however, that the Court enter one of three protective

orders to clarify the scope of discovery going forward: (1) “Defendants ask that this Court forbid

the disclosure of the items in the requests for admissions sent by Plaintiffs”; (2) “Defendants

request the Court forbid inquiry into personal matters unrelated to the present litigation such as

Defendants’ personal beliefs, personal information, religious beliefs, or any matters not related to

their duties within the [ODRC]”; and (3) “[a]n additional alternative is to limit the scope of

discovery to matters directly related to Plaintiffs’ claims regarding the alleged withholding of

purported religious materials, any alleged discrimination based on ODRC policies and

regulations, and the specific actions performed by Defendants related to the allegations contained

in Plaintiffs complaint.” (ECF No. 138 at PAGEID # 2239.)

Defendants’ request for a more general protective order is well taken. Accordingly,

Defendants’ request is GRANTED. The Court ORDERS that discovery is limited to matters

directly related to Plaintiffs’ claims regarding the alleged withholding of purported religious

materials, any alleged discrimination based on ODRC policies and regulations, and the specific

actions performed by Defendants related to the allegations contained in Plaintiffs’ complaint.

This Order does not, however, preemptively excuse Defendants from responding to Plaintiffs’

other discovery requests, as discussed below.

B. Plaintiffs’ Motion to Compel

Separately, Plaintiffs have filed a Motion to Compel requesting the Court to: (a) “deem

all ‘Requests for Admissions’ . . . admitted pursuant to FRCP 36(a)(3) unless Defendants can

demonstrate good cause why they should not be,” or “alternatively [to] compel Defendants to

provide proper responses”; and (b) “order Defendants to respond to all discovery requests

forthwith so that the wheels of justice may move forward in this case.” (ECF No. 141 at

PAGEID # 2338.) The Court will address Plaintiffs’ Motion to Compel as it relates to each of

their discovery requests in turn.

1. Request for Admissions

As discussed in relation to Defendants’ Motion, Plaintiffs served a number of requests for

admissions on Defendants. Plaintiffs argue that Defendants “did not answer or object to any of

the Requests for Admissions submitted by Plaintiff Heid and did not answer or object to the

Requests for Admissions submitted to Defendant Clark by Plaintiff Damron – with the exception

of objections to the two requests regarding the racial purity of the white race and support of

miscengenation.” (ECF No. 141 at PAGEID ## 2335-2336.) Plaintiffs submit that “[e]ach

Request for Admission involves facts specific to this case,” and that “[t]he information

responsive to these requests are necessary to this case because these admissions clarify facts

pertaining to individual actions of the Defendants, their state of mind opinions which factor into

the decisions they took, the truth about what took place regarding the removal of literature and

political text, and the similarly situated position of the CS faith with other approved (authorized)

faith groups.” (Id. at PAGEID # 2336.) Plaintiffs believe such facts are “determinative of

Plaintiffs’ punitive damages claim.” (Id.) In response, Defendants incorporate by reference the

arguments set forth in Defendants’ Motion, ECF No. 138. (ECF No. 144 at PAGEID ## 2373-

2374.)

Defendants’ arguments are unavailing. Even incorporating Defendants’ Motion and

construing it as constituting proper objections to the requests for admissions at issue, it is unclear

to the Court why Defendants have otherwise refused to answer any of the remaining requests for

admissions. In the absence of any objection or argument to the contrary, Plaintiffs are entitled to

such responses.

Accordingly, Plaintiffs’ Motion to Compel (ECF No. 141) is GRANTED IN PART as to

the requests for admissions that were not at issue in Defendants’ Motion for Protective Order

(ECF No. 138), and is DENIED IN PART as to the Personal Belief Requests, the Generalized

or Hypothetical Requests, and the Miscellaneous Requests.

2. Interrogatories

Plaintiffs submitted twenty-five (25) interrogatories to Defendant Clark, and argue that he

“did not answer any interrogatory submitted to [him,] [n]or did [he] provide any objection(s).”

(ECF No. 141 at PAGEID # 2336; see also ECF No. 152 at PAGEID ## 2432-2442.) Plaintiffs

argue that each interrogatory is “specific to the issues and claims of this action,” and state that

“most of what is sought is statistical data that does not disclose personal information and would

be available upon a public records request.” (ECF No. 141 at PAGEID ## 2336-2337.)

Plaintiffs also maintain that “[t]he information responsive to the [interrogatories] are necessary to

this case because they show the Defendants’ discriminatory practices against Plaintiffs and

Plaintiffs’ faith[,] and that the Defendants’ practices violated the Constitution.” (Id. at PAGEID

# 2337.) In response, Defendants suggest that “the general theme” of Plaintiffs’ interrogatories

“remains the same,” and argue that Plaintiffs’ Interrogatories “are beyond the bounds of

relevancy for the present suit.” (ECF No. 144 at PAGEID # 2375.)5

Again, Defendants’ response does little to advise the Court why Defendant Clark refused

to respond to any of Plaintiffs’ interrogatories. While Defendants reference thirteen (13)

interrogatories which they argue are irrelevant to Plaintiffs’ claims, they do not identify such

interrogatories. (Id. at PAGEID ## 2375-2376.) The bigger problem, however, is that

Defendants provide no basis for Defendant Clark’s refusal to respond to the other twelve (12)

interrogatories which Defendants implicitly acknowledge are relevant, whichever they may be.

In the absence of any objection or argument to the contrary, Plaintiffs are entitled to such

discovery.

Accordingly, Plaintiffs’ Motion to Compel (ECF No. 141) is GRANTED as to the

interrogatories.

5 Defendants also argue that Plaintiffs’ Motion to Compel should be denied because Plaintiffs

failed to attach the subject discovery requests. (See ECF No. 144 at PAGEID ## 2374-2376.)

While it is true that Plaintiffs did not initially attach the subject discovery requests to their

Motion to Compel, Plaintiffs did attach the subject discovery requests in their Reply brief. (See

ECF No. 152 at PAGEID ## 2413-2452.) The Court therefore rejects Defendants’ argument.

3. Request for Production of Documents

Plaintiffs submitted fifty-five (55) requests for production to Defendants, and again argue

that “Defendants did not respond to the Request for Production.” (ECF No. 141 at PAGEID #

2337; see also ECF No. 152 at PAGEID ## 2425-2431.) Plaintiffs argue that “Defendants are

obligated to respond to each specific request, whether by answer or objection.” (ECF No. 141 at

PAGEID # 2337.) In response, Defendants argue that “[t]he documents Plaintiffs requested are

similar to their requests for admissions in that they seek to stoke racial and religious division,”

and that “many of the document requests sought confidential information regarding Security

Threat Groups, special investigations, medical files, disciplinary records, investigation logs, and

generalized information of other inmates that are not parties to the present litigation.” (ECF No.

144 at PAGEID # 2374.) Defendants submit that “[a]mong the 55 requests submitted, there are

few that directly relate to Plaintiffs’ claims in the present action.” (Id. at PAGEID # 2375.)

Again, Plaintiffs are entitled to discovery, and Defendants may not completely disengage

in this part of the discovery process, no matter how repugnant it may be. In its response to

Plaintiffs’ Motion to Compel, Defendants concede that they have failed to respond to any of

Plaintiffs’ requests for production, and they provide no basis for doing so. But, Defendants

concede that at least some of Plaintiffs’ requests for production are appropriate. (ECF No. 144 at

PAGEID # 2374 (“[T]here are [a] few that directly relate to Plaintiffs’ claims”).) Defendants

provide no explanation for why they refused to respond to Plaintiffs’ appropriate requests. But,

Plaintiffs are entitled to responses or objections.

Accordingly, Plaintiffs’ Motion to Compel (ECF No. 141) is GRANTED as to the

requests for production.

C. Conclusion

Accordingly, for the reasons set forth above, Defendants’ Motion for Protective Order

(ECF No. 138) is GRANTED as to the Personal Belief Requests, the Generalized or

Hypothetical Requests, and the Miscellaneous Requests; and Plaintiffs’ Motion to Compel

Defendants to Respond to Request for Interrogatories, Request for Production, and Requests for

Admissions (ECF No. 141) is GRANTED IN PART, as to the requests for admissions that were

not at issue in Defendants’ Motion for Protective Order and as to Plaintiffs’ interrogatories and

requests for production, and DENIED IN PART, as to the Personal Belief Requests, the

Generalized or Hypothetical Requests, and the Miscellaneous Requests which were at issue in

Defendants’ Motion for Protective Order.

The Court further ORDERS that discovery is limited to matters directly related to

Plaintiffs’ claims regarding the alleged withholding of purported religious materials, any alleged

discrimination based on ODRC policies and regulations, and the specific actions performed by

Defendants related to the allegations contained in Plaintiffs’ complaint. To that end, Defendants

are DIRECTED to respond to Plaintiffs’ discovery requests, except for the Personal Belief

Requests, the Generalized or Hypothetical Requests, and the Miscellaneous Requests which were

at issue in Defendants’ Motion for Protective Order, by APRIL 30, 2021. Plaintiffs are

DIRECTED to meet and confer with Defendants NO LATER THAN MAY 14, 2021 if they

believe Defendants’ responses are insufficient.

IV.

Separately, Plaintiffs also have filed Plaintiffs’ Motion for Court Ordered Discovery

Plan, submitting a proposed protocol “regarding the procedure for depositions.” (ECF No. 140

at PAGEID ## 2328-2331.) At the end of Plaintiffs’ proposal, Plaintiffs requested that

Defendants to “propose a better way of handling the depositions” if Defendants objected to

Plaintiffs’ proposal. (Id. at PAGEID # 2331.) Defendants did not respond to Plaintiffs’ filing.

In the absence of any input from Defendants, Plaintiffs’ Motion for Court Ordered

Discovery Plan (ECF No. 140) is DENIED WITHOUT PREJUDICE. Defendants are

DIRECTED, however, to submit a proposed deposition protocol to Plaintiffs by APRIL 30,

2021. If Plaintiffs do not agree to Defendants’ proposed deposition protocol, they shall meet and

confer with Defendants NO LATER THAN MAY 14, 2021.

V.

Plaintiffs also have filed a Motion for Discovery Sanctions, ECF No. 152, and Motion for

Rule 11 Sanctions, ECF No. 154, seeking an order from the Court directing Defendants to

respond to the discovery requests, as well as costs associated with preparing the motion. (ECF

Nos. 152, 154.) The Court DENIES Plaintiffs’ Motions. First, as discussed above, the Court

already has directed Defendants to respond to the discovery requests, except for the requests for

admissions at issue in Defendants’ Motion. Second, however, the Court flatly rejects Plaintiffs’

legal argument that Defendants’ response in opposition to Plaintiffs’ Motion to Compel

“contains factual contentions that lack evidentiary support or are unlikely to have evidentiary

support after a reasonable opportunity for further investigation or discovery.” (ECF No. 154.)

Plaintiffs misconstrue Defendants’ argument for facts, and are far off-base to suggest that

Defendants’ counsel “is essentially weaponizing the legal system to carry out his personal

agenda of estopping the Constitutional rights of Aryan-Americans.” (Id.)

To that end, the Court must also emphasize that Plaintiffs go well outside the bounds of

common courtesy by personally attacking Defendants’ counsel for making such permissible legal

arguments. Plaintiffs’ unnecessarily inflammatory language has no place in this Court and the

Court will not countenance it any further. The Court specifically CAUTIONS Plaintiffs that

future ad hominem attacks will not be tolerated, and may subject Plaintiffs to sanctions. See S.D.

Ohio Civ. R. Introductory Statement on Civility (“An opposing litigant, a lawyer who represents

that litigant, or a Judge who decides an issue has not thereby forfeited the right to be treated with

common courtesy.”).

VI.

For the foregoing reasons, Defendants’ Motion for Protective Order (ECF No. 138) is

GRANTED, and Plaintiffs’ Motion to Compel Defendants to Respond to Request for

Interrogatories, Request for Production, and Requests for Admissions (ECF No. 141) is

GRANTED IN PART AND DENIED IN PART. Defendants are DIRECTED to respond to

Plaintiffs’ discovery requests, except for the Personal Belief Requests, the Generalized or

Hypothetical Requests, and the Miscellaneous Requests which were at issue in Defendants’

Motion for Protective Order, by APRIL 30, 2021. The Court further ORDERS that discovery is

limited to matters directly related to Plaintiffs’ claims regarding the alleged withholding of

purported religious materials, any alleged discrimination based on ODRC policies and

regulations, and the specific actions performed by Defendants related to the allegations contained

in Plaintiffs’ complaint. To that end, Defendants are DIRECTED to respond to Plaintiffs’

discovery requests, except for the Personal Belief Requests, the Generalized or Hypothetical

Requests, and the Miscellaneous Requests which were at issue in Defendants’ Motion for

Protective Order, by APRIL 30, 2021. Plaintiffs are DIRECTED to meet and confer with

Defendants NO LATER THAN MAY 14, 2021 if they believe Defendants’ responses are

insufficient.

Additionally, Plaintiffs’ Motion for Court Ordered Discovery Plan (ECF No. 140) is

DENIED WITHOUT PREJUDICE. Defendants are DIRECTED, however, to submit a

proposed deposition protocol to Plaintiffs by APRIL 30, 2021. Plaintiffs are DIRECTED to

meet and confer with Defendants NO LATER THAN MAY 14, 2021 if they do not agree to

Defendants’ proposed deposition protocol.

Finally, Plaintiffs’ Motion for Discovery Sanctions (ECF No. 152), and Plaintiffs’

Motion for Rule 11 Sanctions (ECF No. 154), are DENIED. The Court expressly CAUTIONS

Plaintiffs, however, that future ad hominem attacks on Defendants or Defendants’ counsel will

not be tolerated and may subject Plaintiffs to sanctions.

Having resolved the above discovery disputes, the Court further ORDERS that the

Parties shall have until JULY 1, 2021, to complete discovery, and until AUGUST 2, 2021, to

submit dispositive motions.

IT IS SO ORDERED.

Date: March 31, 2021 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE