The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ASON BROWN, )
Plaintiff, Civil Action No. 21-1407
Vv. Magistrate Judge Maureen P. Kelly
SERGEANT DWAYNE LARDIN; Re: ECF No. 61
CORRECTIONS OFFICER BOYER; )
CORRECTIONS OFFICER MAZZA; and )
CORRECTIONS OFFICER GERBER, )
Defendants.
MEMORANDUM ORDER
Presently before the Court is a document filed by pro se Plaintiff Ason Brown (“Plaintiff”)
titled “Status — Records Request Pending?” ECF No. 61. The Court construes the document as a
motion to compel discovery. For the reasons below, the motion is denied.
1. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Ason Brown (“Plaintiff”), an individual formally incarcerated at the Allegheny
County Jail (“ACJ”), brings this civil rights action against ACJ corrections officers and
supervisory personnel for the alleged violation of his Fifth and Fourteenth Amendment rights. ECF
No. 13. Plaintiff alleges his civil rights were violated when Defendants Sergeant Dwayne Lardin
(“Lardin”), Corrections Officer Boyer (“Boyer”), Corrections Officer Mazza (“Mazza”), and
Corrections Officer Gerber (“Gerber”) employed excessive force after he failed to comply with an
order to uncover his cell door window, and then failed to provide medical treatment for his injuries.
Plaintiff also alleges that Defendant Lardin improperly exposed and touched his genitalia during
the incident and, as to Defendant Frank, that she failed to properly investigate and resolve a
grievance related to this incident. ECF No. 13 11-19.
On October 3, 2022, this Court issued a Case Management Order that provided that
discovery was to be completed by January 9, 2023, and that Plaintiff was to file his Pretrial
Statement by February 10, 2023. ECF No. 42. The Order was mailed to Plaintiff at his address of
record on October 3, 2022, and was not returned as undeliverable. On March 7, 2023, this Court
issued an Order to Show Cause why this action should not be dismissed because Plaintiff failed to
file a Pretrial Statement as ordered. ECF No. 43. Plaintiff filed a Motion for Extension of Time to
file a response to the Order to Show Cause, and the Court granted an extension until April 24,
2023. ECF Nos. 44, 45. Plaintiff filed his response and stated that due to incarceration from
December 9, 2022, through March 17, 2023, he was deprived “of any opportunity to file a Pretrial
Statement.” ECF No. 48. He also complained that he was “never given a discovery ... [and] was
never served a Notice of Deposition.” Id. That said, Plaintiff confirmed that he had “all required
documents” and asked the Court to permit this litigation to go forward. Id.
The Court issued a second Case Management Order that required Defendants to file a
Motion for Summary Judgment by June 1, 2023. ECF No. 49. Defendants’ Motion for Summary
Judgment, and supporting brief and exhibits were timely filed, and the Court issued an Order
informing Plaintiff that his response to the motion was due by June 30, 2023. ECF Nos. 50-54.
Plaintiff failed to file a response as ordered. On July 7, 2023, the Court issued an Order to Show
Cause why this action should not be dismissed. ECF No. 56. Plaintiff filed his response on June
28, 2023, and stated that he had not received his records from the Allegheny County Jail and had
been misled by jail employees as to who to ask for his records. ECF No. 57. Plaintiff also filed
what is construed as his response to the pending Motion for Summary Judgment and supporting
exhibits. ECF Nos. 58, 59.
On August 22, 2023, Plaintiff Ason Brown filed a document titled “Status — Records □
Request Pending?” ECF No. 61. In his request, Plaintiff states that on July 19, 2023, he “wrote a
letter to Judge Kimberly Clark requesting my records from the Allegheny County Jail.” Id. A copy
of the letter is attached as an exhibit and sets forth Plaintiffs request for “all of my documents,
requests, complaints, grievances, etc. etc. on file for me ‘Ason Bron’ for anytime that I’ve ever
been incarcerated at the Allegheny County Jail from 1/1/2017 to 12/31/2023.... In addition to that,
.... also just simply like copies of all of the letters and photos I received while I was
incarcerated.” ECF No. 61-1.
Plaintiff further states that on July 20, 2023, he “was given a subpoena from the Clerk of
Courts to give to the jail (Allegheny County) so that they would release my records to me.” Id.
Plaintiff claims that after a month, he “still has not received” his records.
Plaintiffhas filed copies of documents he received from the Allegheny County Department
of Court Records Criminal Division, the Allegheny County Office of Public Defender, the
Allegheny County Pretrial Services Department, and a copy of the subpoena issued by the Clerk
of Court for the United States District Court for the Western District of Pennsylvania. ECF Nos.
59-1 —59-4. The documents prepared by the various Allegheny County offices reflect that Plaintiff
was informed that his jail records could be obtained by contacting the jail directly. The Department
of Court Records and the Pretrial Services Department provided Plaintiff with a telephone number
for the jail. The subpoena issued by the Clerk of Court and filed by Plaintiff on the docket of this
matter does not reflect that Plaintiff identified any party or witness to be served or whether service
was ever accomplished. ECF No. 59-4.
As noted, this Court construes Plaintiffs document at ECF No. 61 as a Motion to Compel
and directed Defendants to file a response. ECF No. 62. Defendants have filed their response. ECF
No. 63. In their response, Defendants state that they have never received a discovery request from
Plaintiff. However, on December 27, 2022, they mailed to Plaintiff the use of force report for the
incident at issue and “relevant portions of [Plaintiffs] jail medical record.” Id. At that time,
Defendants also advised Plaintiff that there was video of the incident at issue and that Plaintiff
could make arrangements to view it by contacting defense counsel. Plaintiff never advised
Defendants that he did not receive the records that were mailed to him, and never served
Defendants with any discovery requests in this matter. Id.
Defendants further state that a copy of the Motion for Summary Judgment, Brief in
Support, Concise Statement of Material Facts, Appendix with relevant exhibits, and a USB drive
containing the video evidence related to the incident at issue were mailed to Plaintiff at his address
of record. Id. (citing ECF Nos. 50-54). Thus, Defendants state that all relevant evidence needed to
respond to the Motion for Summary Judgment has been provided to Plaintiff. Id. To the extent
Plaintiff now seeks production of records from the Allegheny County Jail including any record
and any correspondence addressed to Plaintiff from any period of confinement from 2017 through
the end of this calendar year, Defendants contend Plaintiff's request is “far beyond the scope of
discovery.” ECF No. 63 at 2.
Il. LEGAL STANDARDS
Federal Rule of Civil Procedure 37(a)(3)(B)(iv) permits a party seeking discovery to move
for an order compelling production if “a party fails to produce documents or fails to respond that
inspection will be permitted ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). Rule
34 provides that requests for production of documents within the scope of Rule 26(b) must be
served, and that the obligation to respond does not arise until “30 days after being served.” Fed.
R. Civ. P. 34(b)(2).
Federal Rule of Civil Procedure 26(b)(1) defines the permissible scope of discovery as
follows:
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)(1).
Rulings regarding the proper scope of discovery permitted under Rule 26, and the extent
to which discovery may be compelled, are matters consigned to the Court’s discretion and
judgment. Wisniewski v. Johns—Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). A party moving
to compel discovery bears the initial burden of proving the relevance of the requested information.
Morrison v. Phila. Hous. 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 Litig., 261 F.R.D. 570, 573 (D. Kan. 2009).
Il. DISCUSSION
The United States Court of Appeals for the Third Circuit has held that a motion to compel
is properly denied when the record reflects that a prisoner plaintiff failed to conduct discovery
despite being afforded ample opportunity. Thorpe v. Grillos, 80 F. App’x 215, 220 (3d Cir. 2003);
see also Bull v. U.S., 146 F. App’x 468, 470 (3d Cir. 2005) (it was not an abuse of discretion to
deny a motion to compel where plaintiff did not serve discovery until after the court-ordered
deadline for the close of discovery and most of the relevant records were provided to him and
attached to the defendants’ motion for summary judgment).
In this case, Plaintiff fails to demonstrate that he properly served discovery requests on
Defendants to trigger an obligation on the part of Defendants to respond. See Fed. R. Civ. P. 34.
While he complains that discovery was impeded by his incarceration, Plaintiff did not seek an
extension of the deadline to complete discovery on that basis. Further, Defendants represent that
in December 2022, even though they never received any discovery requests from Plaintiff, they
provided Plaintiff with copies of his relevant jail medical records and the use of force report related
to the incident at issue. ECF No. 63 at 2. In response to this Court’s Order to Show Cause issued
on March 6, 2023, Plaintiff responded that as of April 24, 2023, “[a]lthough [he] was late, due to
being subject to unfortunate circumstances in my environment, I have all required documentation.”
ECF No. 48. The record also reflects that Defendants served Plaintiff with the relevant documents
in the Appendix filed in support of their motion for summary judgment. Under these
circumstances, the motion to compel is properly denied due to Plaintiff's failure to comply with
the requirement that he serve his requests in compliance with the Federal Rules of Civil Procedure.
In addition, Defendants’ objection related to the scope of Plaintiff's belated and as yet
unserved request for production documents is sustained. Plaintiff's litigation arises out of a single
incident that occurred on February 16, 2021. Yet, Plaintiff demands production of all jail records
for every time he has been incarcerated the Allegheny County Jail from January 1, 2017, through
December 31, 2023, and copies of all letters and photos he received during that time. While it is
conceivable that some records may be relevant to this litigation or lead to the discovery of
admissible evidence, Plaintiff fails to explain how his request is proportional to needs of this case.
Thus, the motion to compel is properly denied on this basis.
Accordingly, this 29 day of September 2023, and or the foregoing reasons, IT IS
HEREBY ORDERED that Plaintiff's Motion to Compel, ECF No. 61, is denied.
BY THE COURT:
ceo og et wom p i
FE hit Dy
MAUREEN-P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc: Ason Brown
P.O. Box 492
Pittsburgh, PA 15230
All counsel of record via CM/ECF