Pough v. DeWine

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LANCE POUGH, : Case No. 2:21-cv-00880

:

Plaintiff, : District Judge Michael H. Watson

: Magistrate Judge Caroline H. Gentry

vs. :

:

MIKE DEWINE, et al.,

:

Defendant. :

:

DECISION & ORDER

Plaintiff, an Ohio inmate proceeding in forma pauperis and without the assistance

of counsel, brings this civil rights action under 42 U.S.C. § 1983. Alleging that members

of the Ohio Parole Board (“OPB”) impermissibly used his race as a factor when deciding

to deny his application for parole and to impose a ten-year waiting period before he could

apply again, Plaintiff has asserted violations of the Equal Protection and Due Process

Clauses of the Fourteenth Amendment to the United States Constitution. (Complaint,

ECF No. 20.)

This matter has been referred to the undersigned Magistrate Judge to rule upon the

following pending motions: Plaintiff’s Motion to Compel (ECF No. 58); Plaintiff’s

Motion for Subpoena Duces Tecum (ECF No. 60); Plaintiff’s Motion Pursuant to

59(B)(2)(e) of Fed. Rules of Civil Procedure (ECF No. 74); Plaintiff’s Motion for

Subpoena Duces Tecum (ECF No. 75); Plaintiff’s Motion to Voluntarily Dismiss

Pursuant to Fed. Civ. Rule Procedure 41 (ECF No. 77); Plaintiff’s Motion to Consider

Revisions (ECF No. 78); Plaintiff’ Motion Requesting Additional Time for Discovery

(ECF No. 79); Plaintiff’s Motion for Subpoena Duces Tecum (ECF No. 81); Plaintiff’s

Motion to Compel (ECF No. 83); Defendants’ Motion to Strike (ECF No. 85); Plaintiff’s

Amended Motion for Subpoena Duces Tecum (ECF No. 90); Plaintiff’s Amended

Motion to Compel (ECF No. 92); Defendants’ Motion to Strike (ECF No. 96); Plaintiff’s

Motion to Strike (ECF No. 100); Plaintiff’s Motion Requesting Permission to Withdraw

Certain Discovery Requests (ECF No. 102); Plaintiff’s Amended Motion for Subpoena

Duces Tecum (ECF No. 105); Plaintiff’s Motion for Leave to File Motion in Reply (ECF

No. 108); and Plaintiff’s Motion to Supplement Amended Motion to Compel (ECF No.

109). The Court addresses each of these motions below.

I. PLAINTIFF’S MOTION PURSUANT TO RULE 59(B)(2)(e) (ECF NO. 74)

AND PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS (ECF NO. 77)

On September 27, 2022, Plaintiff filed a document captioned Motion Pursuant to

59(B)(2)(e) of Fed. Rules of Civil Procedure. (ECF No. 74.) On October 21, 2022,

Plaintiff filed a document captioned, in part, Motion to Voluntarily Dismiss. (ECF No.

77.) Although Plaintiff’s latter motion cites to Fed. R. Civ. P. 41, its plain language

requests not dismissal of the action under that rule, but rather “dismissal” of Plaintiff’s

Motion Pursuant to 59(B)(2)(e). The Court therefore construes Plaintiff’s Motion to

Voluntarily Dismiss as a request to withdraw Plaintiff’s Motion Pursuant to 59(B)(2)(e).

See, e.g., Lamb v. Howe, 677 F. App’x 204, 207 (6th Cir. 2017) (the filings of pro se

litigants should be liberally construed).

Accordingly, the Court GRANTS Plaintiff’s Motion to Voluntarily Dismiss (ECF

No. 77), which it construes as a motion to withdraw Plaintiff’s earlier-filed motion, and

the Court DENIES Plaintiff’s Motion Pursuant to 59(B)(2)(e) (ECF No. 74) AS MOOT.

II. PLAINTIFF’S MOTION TO CONSIDER REVISIONS (ECF NO. 78) AND

MOTION REQUESTING PERMISSION TO WITHDRAW CERTAIN

DISCOVERY REQUESTS (ECF NO. 102)

On October 24, 2022, Plaintiff filed a document titled “Motion Requesting This

Honorable Court to Consider the Included Revisions to EX:A3 Attached to and

Regarding the Motion to Compel.” (ECF No. 78.) That Motion sought to revise certain

portions of Plaintiff’s First Set of Requests for Production of Documents. (Id., PageID

707). However, as Defendants correctly note (ECF No. 80, PageID 727), Plaintiff may

amend his document requests as of right. Therefore, contrary to Defendants’ suggestion

(id.), the Court does not construe Plaintiff’s Motion as seeking leave of Court. Rather, the

Court understands Plaintiff’s Motion to request that the Court consider such revisions

when ruling upon Plaintiff’s underlying Motion to Compel. See, e.g., Lamb v. Howe, 677

F. App’x 204, 207 (6th Cir. 2017) (the filings of pro se litigants should be liberally

construed). Therefore, the Court GRANTS Plaintiff’s Motion To Consider Revisions

(ECF No. 78).

On February 13, 2023, Plaintiff filed a document titled “Motion Requesting

Permission to Withdraw Certain Discovery Requests or as an Alternative, Plaintiff

Requests Not to Consider Due to Them being Duplicative.” (ECF No. 102.) However,

Plaintiff may withdraw his discovery requests without leave of court. See, e.g., McNamee

v. Nationstar Mortgage, LLC, 2021 WL 5339533 (S.D. Ohio 2021) (Vascura, M.J.)

(accepting without question that a plaintiff may freely withdraw discovery requests).

Therefore, the Court GRANTS Plaintiff’s Motion to Withdraw Discovery Requests (ECF

No. 102).

III. PLAINTIFF’ MOTION REQUESTING ADDITIONAL TIME FOR

DISCOVERY (ECF NO. 79)

On October 31, 2022, Plaintiff filed a Motion Requesting Additional Time for

Discovery. (ECF No. 79.) That motion neither references a specific deadline which

Plaintiff wishes to extend nor suggests a later date to which such a deadline should be

extended. Notably, however, Defendants did not object to Plaintiff’s Motion. Therefore,

the Court GRANTS Plaintiff’s Motion Requesting Additional Time for Discovery (ECF

No. 79) and will set a discovery deadline by separate order.

IV. PLAINTIFF’S MOTIONS FOR SUBPOENAS DUCES TECUM

A. Plaintiff’s Motion for Service of Subpoena Duces Tecum Upon Jeremy

Pelzer (ECF Nos. 60 and 105)

On June 27, 2022, Plaintiff filed a motion requesting that this Court order service

of a subpoena duces tecum upon a non-party, Jeremy Pelzer. (ECF No. 60.)

Subsequently, on February 27, 2023, Plaintiff filed an amended version of that same

motion. (ECF No. 105.)

As a party proceeding in forma pauperis, Plaintiff is entitled to service of

subpoenas, at the expense of the United States, by an officer of the Court. 28 U.S.C.

§1915(d). The Court will therefore grant the Motion and order that the United States

Marshal serve such subpoena at the expense of the United States. However, the Court

notes that the amended subpoena filed by Plaintiff directs compliance by March 5, 2023,

which date has already passed. (ECF No. 105-1, PageID 1066.) The Court may sua

sponte modify a subpoena and finds that such modification would be appropriate in the

instant case. See e.g., Bridgestone Americas, Inc. v. IBM, 2016 WL 11786198, at *17

(M.D. Tenn. 2016) (collecting cases); McClendon v. TelOhio Credit Union, Inc., No.

2:05-CV-1160, 2006 WL 2380601, at *2 (S.D. Ohio Aug. 14, 2006) (Kemp, M.J.)

(fourteen days presumptively reasonable time for response to subpoena).

The Court therefore ORDERS that the amended subpoena filed by Plaintiff (ECF

No. 105-1, PageID 1066) is modified to require compliance no later than April 30, 2023.

With that modification, the Court GRANTS Plaintiff’s Amended Motion for Subpoena

Duces Tecum (ECF No. 105). The United States Marshal shall, without delay, serve the

amended subpoena (ECF No. 105-1, PageID 1066-68; Ex. 105-2, PageID 1069-74; Ex.

105-3, PageID 1075-77; and Ex. 105-4, PageID 1078-82) and a copy of this Order on

Jeremy Pelzer.1

In light of the foregoing, the Court DENIES AS MOOT Plaintiff’s original

Motion for Subpoena Duces Tecum (ECF No. 60).

B. Plaintiff’s Motion for Service of Subpoena Duces Tecum Upon Shirley

Smith (ECF No. 75)

On September 27, 2022, Plaintiff filed a motion requesting that this Court order

service of a subpoena duces tecum upon a non-party, Shirley Smith. (ECF No. 75.) As a

party proceeding in forma pauperis, Plaintiff is entitled to service of subpoenas, at the

1 Because this subpoena does not require Mr. Peltzer’s attendance, the fees for one day's attendance and the mileage

allowed by law need not be tendered. See Fed. R. Civ. P. 45(b)(1). But see Smith v. Yarrow, 78 F. App’x 529, 544

(6th Cir. 2003) (holding that a party proceeding in forma pauperis is not exempt from payment of such fees where

applicable).

expense of the United States, by an officer of the Court. 28 U.S.C. §1915(d). The Court

therefore GRANTS Plaintiff’s Motion for Subpoena Duces Tecum (ECF No. 75). The

United States Marshal shall, without delay, serve the proposed subpoena (ECF No. 75-1,

PageID 680-83 & ECF No. 75-2, PageID 683-696) and a copy of this Order on Shirley

Smith.

C. Plaintiff’s Motion for Service of Subpoena on the Ohio Department of

Rehabilitation and Corrections (ECF No. 81)

On November 21, 2022, Plaintiff filed a motion requesting that this Court order

service of a subpoena duces tecum upon a non-party, the Ohio Department of

Rehabilitation and Corrections (ODRC). (ECF No. 81.) On December 12, 2022,

Defendants filed a document entitled Motion to Strike Pough’s Motion for Subpoena.

(ECF No. 85.) To the extent that those motions required action by the Court, the Court

finds that they are made moot by the subsequent filing of Plaintiff’s Amended Motion for

Subpoena Duces Tecum (ECF No. 90), which seeks identical relief but attempts to

address Defendants’ assertions that Plaintiff’s initial motion (ECF No. 81) failed to

comply with the requirements of Fed. R. Civ. P. 45. The Court therefore DENIES AS

MOOT Plaintiff’s initial Motion for Subpoena Duces Tecum (ECF No. 81) and

Defendant’s Motion to Strike Pough’s Motion for Subpoena (ECF No. 85).

In response to Plaintiff’s Amended Motion for Subpoena Duces Tecum (ECF No.

90), Defendants filed a document entitled Motion to Strike Plaintiff’s Amended Motion

for Subpoena (ECF No. 96). That document argued that Plaintiff “procedurally defaulted

when he filed his motion [ECF No. 81] by failing to comport with Fed. R. Civ. P. 45,”

and further argues that “the materials that [Plaintiff] did attach to his Motion, do not

demonstrate relevance to matters in this case.”

Fed. R. Civ. P. 12(F), which governs motions to strike, provides that “[t]he court

may strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter” (emphasis added). “A . . . motion to strike is

appropriate where it will eliminate spurious issues before trial and streamline the

litigation.” Parker v. Miller, No. 2:16-CV-11432017, 2017 WL 3642372, at *10 (S.D.

Ohio 2017) (Smith, D.J.). E.g., Ohio Democratic Party v. Blackwell, No. 2:04-CV-1055,

2005 WL 8162665 (S.D. Ohio 2005) (Marbley, D.J.) (motion to strike counterclaim);

AT&T Mobility LLC v. Shoukry, No. 2:21-CV-00436, 2021 WL 3172330 (S.D. Ohio

2021) (Marbley, D.J.) (motion to strike affirmative defense). It is not an appropriate

mechanism for challenging a motion for service of a subpoena under 28 U.S.C. §1915(d).

Nor do Defendants have standing to challenge Plaintiff’s subpoena to the ODRC.

“The law is clear [that], absent a claim of privilege, a party has no standing to challenge a

subpoena to a nonparty. The party to whom the subpoena is directed is the only party

with standing to oppose it.” Hackmann v. Auto Owners Ins. Co., 2:05-CV-00876, 2009

WL 330314, at *2–3 (S.D. Ohio 2009) (Abel, D.J.) (cleaned up). This is true even where

a subpoena seeks the production of irrelevant information or fails to allow a reasonable

time for compliance under Fed. R. Civ. P. 45. Id. (citing Donahoo v. Ohio Dep’t of Youth

Servs., 211 F. R. D. 303 (N.D. Ohio 2002)). See also, e.g., Santiago v. Myer Tool, Inc.,

No. 1:19-CV-00032, 2020 WL 247376, at *4 (S.D. Ohio 2020) (Litkovitz, M.J.)

(“Generally a party has no standing to quash a subpoena directed at a nonparty unless the

party seeking to quash claims a personal right or privilege with regards to the documents

sought.” (internal citations omitted)).

Defendants assert that “[Plaintiff’s] attached proposed subpoena [ECF No. 90,

PageID 889], is still not compliant with Fed. R. Civ. P. 45.” (ECF No. 96, PageID 985.)

Defendants do not specify the provisions of Rule 45 that they believe are violated by

Plaintiff’s proposed subpoena. More importantly, any such defects would need to be

raised in a motion to quash filed by the ODRC, the non-party to whom the subpoena is

directed. Accordingly, the Court DENIES Defendants’ Motion to Strike Plaintiff’s

Amended Motion for Subpoena (ECF No. 96).

With respect to Plaintiff’s underlying Amended Motion for Subpoena Duces

Tecum (ECF No. 90), the Court again notes that, as a party proceeding in forma pauperis,

Plaintiff is entitled to service of subpoenas, at the expense of the United States, by an

officer of the Court. 28 U.S.C. §1915(d). The Court will therefore grant Plaintiff’s motion

and order that the United States Marshal serve such subpoena at the expense of the

United States. However, the Court notes that the subpoena filed by Plaintiff directs

compliance by January 9, 2023, which date has already passed. (ECF No. 90, PageID

889.) The Court again finds that sua sponte modification of a subpoena is appropriate in

the instant case. The Court therefore ORDERS that the subpoena filed by Plaintiff (ECF

No. 90, PageID 889) is modified to order a response no later than April 30, 2023. With

that modification, the Court GRANTS Plaintiff’s Motion for Subpoena Duces Tecum

(ECF No. 90). The United States Marshal shall, without delay, serve the subpoena (ECF

No. 90, PageID 889-904) and a copy of this Order on the Ohio Department of

Rehabilitation and Corrections.

V. PLAINTIFF’S FIRST MOTION TO COMPEL (ECF NO. 58)

A. Background

The record before the Court indicates the following relevant facts. On January 23,

2022, Plaintiff, via First Class U.S. Mail, served a First Set of Requests for Production of

Documents (“First RPD”) upon defense counsel pursuant to Fed. R. Civ. P. 34. (ECF No.

58-A3, PageID 524.)2 Pursuant to Fed. R. Civ. P. 23(b)(2)(A), that request afforded

Defendants thirty days to respond. (Id.)

Having received no response, on March 12, 2022, Plaintiff sent defense counsel a

letter “requesting an update on whether or not [Defendants were] going to comply”. (ECF

No. 58-A4, PageID 529.) On March 22, 2022, defense counsel responded by apologizing

for the delay and attributing that delay, in part, to unexpected turnover in both legal and

support staff. (ECF No.58-A5, PageID 531.) Defense counsel requested an additional

thirty days in which to comply with Plaintiff’s First RPD. (Id.) Although the record is

somewhat unclear (see ECF No. 58-A6, PageID 532 (“In the alternative, I can . . . give

you an additional 30 days to respond . . . ”(emphasis added))), Plaintiff appears to have

granted Defendants’ request for thirty-day extension. (ECF No. 58, PageID 505.)

Following additional correspondence between the parties, on June 13, 2022,

Plaintiff filed a Motion to Compel (“First Motion to Compel”) that alleged he had yet to

2 Although titled “First Request for Production of Documents,” some of Plaintiff’s requests are more accurately

construed as interrogatories.

receive any response to his First RPD, which he had served upon Defendants more than

four months ago. (ECF No. 58, PageID 504.)

On July 19, 2022, Defendants filed a Response in Opposition to the First Motion

to Compel. (ECF No. 63, PageID 593.) Even though their extended deadline to respond

to Plaintiff’s First RPD had expired approximately three months before, Defendants

conceded that they had not yet responded to Plaintiff’s First RPD. (Id.) They indicated

that they planned to mail Plaintiff responses from at least some of the named Defendants

on the following day. (Id.) In other words, Defendants did not respond to Plaintiff’s First

RPD until after Plaintiff contacted them, granted them a 30-day extension, followed up

with additional correspondence, and finally filed a Motion to Compel.

On January 19, 2023, Plaintiff filed a document entitled Amended Motion to

Compel. (ECF No. 92.) Despite its title, that document does not appear to request any

substantive relief, but rather identifies Plaintiff’s revisions to certain document requests,

as well as his responses to some of Defendants’ objections. Defendants, in turn, filed a

document captioned as a Response in Opposition to Plaintiff’s Amended Motion to

Compel. (ECF No. 93.) That document argues that “[Plaintiff] is not entitled to materials

that do not exist, that the Defendants are under no obligation to create or prepare, [and]

materials that are non-relevant or hearsay.” (Id., PageID 953.) Defendants also address

the merits of Plaintiff’s claims (id., PageID 954–56), his litigation history, and his

criminal history (id., PageID 959–60). Finally, Defendants ask this Court to “issue an

Order to stem [Plaintiff’s] frivolous discovery demands.” (Id., PageID 960.)3

On February 10, 2023, Plaintiff filed a Motion to Strike the Defendants’ Response

in Opposition to Plaintiff’s Amended Motion to Compel. (ECF No. 100.) Plaintiff argues,

in essence, that his Motion to Compel (ECF No. 58) and his Amended Motion to Compel

(ECF No. 92) constitute a single filing, and that by filing responses to each of those

motions (ECF No. 63 and 93), Defendants filed “an improper surresponse”. (ECF No.

100, PageID 1001.) On those grounds, Plaintiff moves this Court to strike Defendants’

Response in Opposition (ECF No. 93) from the record.

On March 10, 2023, Plaintiff filed a Motion for Leave to File Motion in Reply to

the Defendant’s [sic] Motion in Opposition to Plaintiff’s Motion to Compel. (ECF No.

108.) In that document, Plaintiff states that only two discovery requests to Defendants

remain pending, namely, Request 1 (for “Plaintiff’s master file at Ohio Parole Board”)

and Request 3 (for “Plaintiff’s unit file”). (ECF No. 108, PageID 1092.) Plaintiff also

notes his request for “a legible copy of the document [Defendants] provided him with in

response to his #23 interrogatory for defendants Houk, Reveal, and Kovach.” (Id.) In

addition, however, Plaintiff challenges Defendants’ failure to produce the statistical data

sought in Request Nos. 5 through 11, and argues that he is entitled to the data even if it

has not been compiled by Defendants. (Id, PageID 1092-95.)

3 Because Defendants did not file a motion for protective order, their request for an Order protecting them from

Plaintiff’s discovery requests is not properly before the Court, and it will not be considered.

Most recently, on March 27, 2023, Plaintiff filed a Motion to Supplement the

Amended Motion to Compel. (ECF No. 109.) Although titled as a motion, Plaintiff does

not seek separate relief but instead informs the Court that he has yet to receive responses

to his revised Requests 1 through 3. (ECF No. 109, PageID 1103 (“The plaintiff brings

this request because he sent the defendants revisions to Request No. 1 and Request No. 3

. . . Since then, the plaintiff has not heard anything back from the defendants . . . ”))

B. Analysis

Given the interrelated nature of these filings, the Court will address them out of order

and will begin with Plaintiff’s Motion to Strike (ECF No. 100). “[M]otions to strike are

generally disfavored and considered drastic remedies that should be sparingly used by the

courts.” Amerine v. Ocwen Loan Servicing LLC, No. 2:14-CV-00015, 2015 WL

10906068, at *1 (S.D. Ohio 2015) (Watson, D.J.) (cleaned up). See also Newkirk v. Rolf

Goffman Martin Lang LLP, No. 1:19-CV-00085, 2020 WL 13661705, at *1 (S.D. Ohio

2020) (Barrett, D.J.) (the striking of material from the record infringes upon the strong

interest of the public in maintaining free access to the materials on which judicial

decisions are based). Plaintiff argues that because Defendants filed responses to his initial

Motion to Compel (ECF No. 58) and to his amended Motion to Compel (ECF No. 92),

they filed a surreply in violation of S.D. Ohio Civ. Rule 7.2. Plaintiff is incorrect.

Because Plaintiff’s First Motion to Compel (ECF No. 58) and Amended Motion to

Compel (ECF No. 92) are separate motions, Defendants were entitled to respond to both

of them. Plaintiff cannot deprive Defendants of an opportunity to oppose his filings and

counter his arguments by “amending” motions to which Defendants already responded.

Accordingly, the Court DENIES Plaintiff’s Motion to Strike the Defendant[s’] Response

in Opposition to Plaintiff[’]s Amended Motion to Compel (ECF No. 100).

Next, the Court turns to Plaintiff’s Motion for Leave to File Motion in Reply (ECF

No. 108). Plaintiff seeks leave to reply to Defendants’ Response in Opposition (ECF No.

93). Pursuant to S.D. Ohio Civ. R. 7.2(a)(2), any reply to that filing was due no later than

February 7, 2023. This Court has broad discretion in granting or denying leave to make

an untimely filing. United States v. Elenniss, 729 Fed. App’x 422, 424 (6th Cir. 2018).

Here, the Court finds Plaintiff’s update regarding which Requests remain in dispute to be

helpful. Thus, the Court GRANTS Plaintiff’s Motion for Leave to File Motion in Reply

to the Defendant’s Motion in Opposition to Plaintiff’s Motion to Compel (ECF No. 108).

Turning to Plaintiff’s Amended Motion to Compel (ECF No. 92), as noted above,

the Court does not interpret that filing as seeking any substantive relief. The Court

instead interprets it to be a request that the Court take notice that, as of the filing of that

Motion, Plaintiff still had not received responses to his revised Requests 1 through 3. See,

e.g., Lamb v. Howe, 677 F. App’x 204, 207 (6th Cir. 2017). Because it does not seek

independent relief, the Court DENIES Plaintiff’s Amended Motion to Compel (ECF No.

92). The Court will, however, consider Plaintiff’s statements in the Amended Motion

when deciding the First Motion to Compel.

Finally, the Court turns to the First Motion to Compel. In that Motion, Plaintiff

cites Carfagno v. Jackson National Life Ins. Co., 2001 WL 34059032 (W.D. Mich.

2001), for the proposition that, pursuant to Fed. R. Civ. P. 33(b)(2) and 33(b)(2)(A),

Defendants’ failure to timely respond constitutes a waiver of any objection to Plaintiff’s

First RPD. (ECF No. 58, PageID 507.) Plaintiff therefore argues that Defendants must

respond to his requests notwithstanding their objections. Defendants argue that Carfagno

is non-binding and inapposite and instead cite Brown v. Warden Ross Corr. Inst., S.D.

Ohio No. 2:10-CV-822, 2011 WL 1877706 (May 16, 2011) (Deavers, M.J.) for the

proposition that, upon a showing of good cause for delay, a court may excuse the

untimeliness of a party’s objection. (ECF No. 63, PageID 594.) Both cases stand for the

well-established proposition that although waiver of objection is the presumptive result of

an untimely response to a discovery request, the Court may, upon a showing of good

cause, relieve a party from such a waiver. Compare Carfagno, at *1, with Brown, at *2.

Defendants’ reliance on Brown to excuse their untimeliness is unavailing because

that case is factually distinguishable. In Brown, the defendants’ responses were untimely

by less than two months, a delay that the court characterized as “minimal”. Brown, at *2.

In this case, Defendants failed to respond for at least six months. Furthermore, it was

difficult for the Brown defendants to timely respond due to the nature of that plaintiff’s

requests. Id. Here, by contrast, Plaintiff’s First RPD contained only fourteen discrete

requests. (ECF No. 58-A3, PageID 525.) Thus, Brown does not aid Defendants.

Defendants offer a slew of explanations for their six-month delay. They claim

that “[Plaintiff’s] discovery requests needed to be typed by support staff, drafted by

undersigned, vetted by in-house legal counsel and sent to the individual Defendants for

review and comment, reviewed again, and then the interrogatories required notarizing.”

(ECF No. 63, PageID 595). They also claim that between January and July 2022, “the

Corrections Litigation Unit of the Criminal Justice Section of this office experienced

numerous personnel changes”, including the departure of seven attorneys and one

secretary. (Id.)

It is doubtful that these explanations constitute good cause for a six-month delay.

See, e.g., Ritacca v. Abbott Lab., 203 F. R. D. 332, 335 (N.D. Ill. 2001) (“Minor

procedural violations, good faith attempts at compliance, and other such mitigating

circumstances militate against finding waiver. In contrast, evidence of foot-dragging or a

cavalier attitude towards following court orders and the discovery rules supports finding

waiver.”) (cited with approval by Palombaro v. Emery Fed. Credit Union, No. 1:15-CV-

00792, 2017 WL 213071, at *4 (Litkovitz, M.J.)).

Nevertheless, even assuming that Defendants have shown good cause, the Court

OVERRULES Defendants’ objections with respect to the remaining requests in dispute,

namely, Requests 5-11 (statistical data), after construing them as interrogatories rather

than (primarily) requests for documents. Requests 5-11 seek the following information:

5. The statistical data of all prisoners (please identify race) who went up

for parole was granted parole their first time up for parole and why, for

the following years (Jan. 1 of 2011 to Jan. 23 of 2019).

6. The statistical data of all prisoners (please identify the race) who went

up for parole and were denied parole and why, and how many times

they had been up for parole before and was denied parole for the

following years (Jan. 1 of 2011 to Jan. 23 of 2019).

7. The statistical data of all prisoners (please identify the race) who were

denied parole and given lengthy, harsh flops, or continuances between

the following years: Jan. 1 of 2011 – Jan. 23 of 2019. Please provide the

reasons why the prisoners were given these continuances (flops), and

the length of each flop.

8. The statistical data of the voting sheets for each prisoner (please identify

the race) who was denied parole between Jan. 1 of 2011 to Jan. 23 of

2019. (The Plaintiff as well).

9. The statistical data of the parole board members voting sheets for each

prisoner who was denied parole and given a continuance and flop, and

the voting sheets related to the continuance and flops for the years of

Jan. 1 of 2011 to Jan. 23 of 2019.

10. The statistical data of all prisoners (identify the race) who were granted

parole from June 1 of 2019 – September 13 of 2019, as well as the

parole board members voting sheets for each case.

11. The statistical data of all prisoners who were (identify the race) denied

parole and given a continuance or flop by the Ohio Parole Board, and

please provide the length of the flop or continuance for the following

years – June 1 of 2019 to September 13 of 2019. Please provide the

voting sheets as well.

(ECF 58-2, PageID 525-26 (cleaned up).) With the exception of the request for voting

sheets, all of this information can be provided in interrogatory responses rather than by

the production of documents. The information is relevant to Plaintiff’s claims under the

Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S.

Constitution, and so is discoverable. Moreover, Defendants can provide this information

without identifying prisoners by name.4 Finally, because the requested data is available to

Defendants, they cannot avoid providing the information simply by claiming that they

have not already compiled it in existing documents. (ECF No. 80, PageID 722–23.)

Accordingly, the Court GRANTS Plaintiff’s First Motion to Compel (ECF No.

58) with respect to Requests 5-11, after construing these requests as interrogatories.

Based on Plaintiff’s representation that Defendants have not responded to Requests 1-3,

4 In their objections, Defendants state that Ohio Administrative Code 5120:1-1-36(E) prohibits Plaintiff from

receiving records of other inmates. (ECF No. 80, PageID 723-27.)

the Court GRANTS Plaintiff’s First Motion to Compel with respect to these requests.

Defendants are ORDERED to respond to all these requests within thirty (30) days of the

date of this Order. Given Plaintiff’s representation that no other requests are outstanding,

the Court DENIES AS MOOT the remainder of Plaintiff’s First Motion to Compel.

Finally, because it does not seek additional substantive relief, Plaintiff’s Motion to

Supplement the Amended Motion to Compel (ECF No. 109) is DENIED.

VI. PLAINTIFF’S SECOND MOTION TO COMPEL (ECF NO. 83)

A. Background

The record before the Court indicates the following relevant facts. On April 18,

2022, Plaintiff, via First Class U.S. Mail, served upon defense counsel a Third Set of

Requests for Production of Documents, pursuant to Fed. R. Civ. P. 34. (ECF No. 83,

PageID 760). On June 21, 2022, Plaintiff, via First Class U.S. Mail, served upon defense

counsel a Fourth Set of Requests for Production of Documents, pursuant to Fed. R. Civ.

P. 34. (ECF No. 83, PageID 767). Pursuant to Fed. R. Civ. P. 23(b)(2)(A), both Plaintiff’s

Third and Fourth Set of Requests afforded Defendants thirty days to respond. (Id.)

Plaintiff asserts that Defendants responded to his Third Set of Requests on July 21, 2022,

or ninety-four days after service. Plaintiff further asserts that Defendants responded to his

Fourth Set of Requests on September 9, 2022, or eighty days after service. Defendants do

not challenge these assertions (see ECF No. 86 and 93), which the Court will therefore

accept as true.

Subsequently, on November 29, 2022, Plaintiff filed a Second Motion to Compel.

(ECF No. 83). In that Motion, Plaintiff concedes that he received responses to his Third

and Fourth Sets of Request, as detailed above, but again asserts that, pursuant to Fed. R.

Civ. P. 33(b)(2) and 33(b)(2)(A), Defendants’ failure to timely respond constitutes a

waiver of the objections which they seek to raise. (Id., PageID 748.) Plaintiff therefore

moves this Court to order that Defendants respond to his requests notwithstanding those

objections. In their response in opposition to Plaintiff’s motion (ECF No. 86), Defendants

do not address their untimely responses or Plaintiff’s argument regarding waiver of

objection. Rather, Defendants address the propriety of Plaintiff’s Requests (e.g., id. at

PageID 807 (“To the extent that [Plaintiff] seeks specific statistical data, such

information has not been compiled and Defendants are under no obligation to create or

produce materials that do not exist.”)) and the substance of their responses to those

requests (e.g., id. at PageID 808). In his reply, Plaintiff, inter alia, re-emphasizes his

argument that Defendants have waived objection to his Second and Third Set of

Requests. (E.g., ECF No. 95, PageID 967.)

B. Analysis

Defendants do not dispute that their responses to Plaintiff’s Third and Fourth Set

of Requests were untimely. As previously discussed, this delay presumptively constitutes

a waiver of any and all objections to Plaintiff’s requests. See, e.g., United States v. Elsass,

No. 2:10–CV–00336, 2011 WL 335957, at *3 (S.D. Ohio 2011) (King, M.J.) (“In

general, when a party fails to object timely to interrogatories, production requests, or

other discovery efforts, objections thereto are waived.” (internal citations omitted)). The

Court may, of course, relieve a party of such waiver upon a showing of good cause for

delay. E.g., Brown v. Warden Ross Corr. Inst., S.D. Ohio No. 2:10-CV-822, 2011 WL

1877706 (May 16, 2011) (Deavers, M.J.), Here, however, Defendants have simply

offered no explanation at all. (ECF No. 86.) The Court therefore agrees that Defendants

have waived their objections to his Third and Fourth Set of Requests. See, e.g., North Am.

Rescue Prods. v. Bound Tree Med., LLC, 2:08-CV-00101, 2009 WL 4110889, at *19–20

(S.D. Ohio 2009) (Kemp, M.J.). Accord, e.g., Ritacca v. Abbott Lab., 203 F. R. D. 332,

335 (N.D. Ill. 2001) (“[E]vidence of foot-dragging or a cavalier attitude towards

following court orders and the discovery rules supports finding waiver.”) (cited with

approval by Palombaro v. Emery Fed. Credit Union, No. 1:15-CV-00792, 2017 WL

213071, at *4 (Litkovitz, M.J.)). Defendants are reminded that neither Plaintiff’s pro se

status nor their own perception of the frivolity of his claims exempts Defendants from the

requirement that they follow the rules.

Plaintiff’s Second Motion to Compel concerns two requests for “statistical data,”

including race, of inmates who committed specific crimes and were denied parole.

Specifically, Plaintiff has requested the following information:

Revised Request #1: Please provide the statistical data for prisoners (please

provide the race) with a homicide related crime who was denied parole

their first time up (initial hearing) for the years Jan. 23, 2019-June 1, 2019.

Request F: All statistical data for inmates, please provide race, with a

homicide related crime, who was denied parole their first time up for a

parole hearing for the years: September 13, 2019 to Jan. 23, 2022. Also

please provide all the statistical data for the length of each continuance

given to inmate as well.

(ECF No. 83, PageID 749, 751.) Defendants raise the same arguments that they asserted

in response to Requests 5-11 in Plaintiff’s First RPD. (Id., PageID 749-752.) For the

same reasons stated above, the Court GRANTS Plaintiff’s Second Motion to Compel

(ECF No. 83) with respect to Revised Request #1 and Request F, which this Court

construes as being interrogatories rather than requests for documents. Defendants are

ORDERED to respond to these requests within thirty (30) days of the date of this Order.

VII. CONCLUSION

In sum, for the reasons set forth above, the Court ORDERS as follows:

1) The Court GRANTS Plaintiff’s First Motion to Compel (ECF No. 58) with

respect to Requests 5-11, after construing these requests as interrogatories. The

Court also GRANTS Plaintiff’s First Motion to Compel with respect to

Requests 1-3. Defendants are ORDERED to respond to all these requests

within thirty (30) days of the date of this Order. The Court DENIES AS

MOOT the remainder of Plaintiff’s First Motion to Compel.

2) The Court DENIES AS MOOT Plaintiff’s original Motion for Subpoena

Duces Tecum (ECF No. 60).

3) The Court DENIES AS MOOT Plaintiff’s Motion Pursuant to 59(B)(2)(e)

(ECF No. 74).

4) The Court GRANTS Plaintiff’s Motion for Subpoena Duces Tecum (ECF No.

75) and ORDERS the United States Marshal to serve the subpoena (ECF No.

75-1, PageID 680-83 & ECF No. 75-2, PageID 683-696) and a copy of this

Order on Shirley Smith without delay.

5) The Court GRANTS Plaintiff’s Motion to Voluntarily Dismiss (ECF No. 77),

which it construes as a motion to withdraw Plaintiff’s earlier-filed motion.

6) The Court GRANTS Plaintiff’s Motion To Consider Revisions (ECF No. 78)

7) The Court GRANTS Plaintiff’s Motion Requesting Additional Time for

Discovery (ECF No. 79) and will set a discovery deadline by separate order.

8) The Court DENIES AS MOOT Plaintiff’s initial Motion for Subpoena Duces

Tecum (ECF No. 81).

9) The Court GRANTS Plaintiff’s Second Motion to Compel (ECF No. 83) with

respect to Revised Request #1 and Request F, which this Court construes as

being interrogatories rather than requests for documents. Defendants are

ORDERED to respond to these requests within thirty (30) days of the date of

this Order.

10) The Court DENIES AS MOOT Defendant’s Motion to Strike Pough’s Motion

for Subpoena (ECF No. 85).

11) The Court ORDERS that the subpoena filed by Plaintiff (ECF No. 90, PageID

889) is modified to order a response no later than April 30, 2023. With that

modification, the Court GRANTS Plaintiff’s Motion for Subpoena Duces

Tecum (ECF No. 90). The United States Marshal is ORDERED to serve the

subpoena (ECF No. 90, PageID 889-904) and a copy of this Order on the Ohio

Department of Rehabilitation and Corrections without delay.

12) The Court DENIES Plaintiff’s Amended Motion to Compel (ECF No. 92).

13) The Court DENIES Defendants’ Motion to Strike Plaintiff’s Amended Motion

for Subpoena (ECF No. 96).

14) The Court DENIES Plaintiff’s Motion to Strike the Defendant[s’] Response in

Opposition to Plaintiff[’]s Amended Motion to Compel (ECF No. 100).

15) The Court GRANTS Plaintiff’s Motion to Withdraw Discovery Requests

(ECF No. 102).

16) The Court ORDERS that the amended subpoena filed by Plaintiff (ECF No.

105-1, PageID 1066) is modified to require compliance no later than April 30,

2023. With that modification, the Court GRANTS Plaintiff’s Amended

Motion for Subpoena Duces Tecum (ECF No. 105). The United States Marshal

is ORDERED to serve the amended subpoena (ECF No. 105-1, PageID 1066-

68; Ex. 105-2, PageID 1069-74; Ex. 105-3, PageID 1075-77; and Ex. 105-4,

PageID 1078-82) and a copy of this Order on Jeremy Pelzer without delay.

17) The Court GRANTS Plaintiff’s Motion for Leave to File Motion in Reply to

the Defendant’s Motion in Opposition to Plaintiff’s Motion to Compel (ECF

No. 108)

18) Plaintiff’s Motion to Supplement the Amended Motion to Compel (ECF No.

109) is DENIED.

IT IS SO ORDERED.

s/Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

Pursuant to Fed. R. Civ. P. 72(a), any party may serve and file specific, written

objections within FOURTEEN days after being served with this Order. Pursuant to Fed.

R. Civ. P. 6(d), this period is extended to SEVENTEEN days if this Order is being

served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F).

Such objections shall specify the portions of the Order objected to and shall be

accompanied by a memorandum of law in support of the objections. If the Order is based

in whole or in part upon matters occurring of record at an oral hearing, the objecting

party shall promptly arrange for the transcription of the record, or such portions of it as

all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned

District Judge otherwise directs. A party may respond to another party’s objections

within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,

949-50 (6th Cir. 1981).