United States District Court, S.D. Georgia, Dublin Division
K. EPPS UNITED STATES MAGISTRATE JUDGE
an inmate at Calhoun State Prison in Morgan, Georgia,
commenced the above-captioned case pursuant to 42 U.S.C.
§ 1983, concerning events alleged to have occurred at
Johnson State Prison (“JSP”) in Wrightsville,
Georgia. Before the Court is Plaintiff's “Objection
to Defendants Discovery” in which he seeks the
production of documents from Defendants. The Court construes
the filing as a motion to compel. (Doc. no. 128.)
is requesting documents relating to “the smell of
tobacco and marijuana, ” referred to by Plaintiff as
“Item No. 9, ” and volume one of Plaintiff's
medical files, referred to by Plaintiff as “Item No.
2.” (Doc. no. 128.) Plaintiff previously filed motions
to compel as to these documents. (Doc. nos. 99-100.) In
reference to “Item No. 9, ” on October 12, 2018,
the presiding District Court Judge Dudley H. Bowen ordered
make a reasonable inquiry of supervising officers at Johnson
State Prison to determine whether there is any recollection
of documented complaints concerning poor air quality due to
marijuana and tobacco smoke between October 28, 2015, and
Plaintiff's transfer to Calhoun State Prison lodged by
(Doc. no. 115, p. 6.) In reference to “Item No. 2,
” this Court ordered Defendants to produce “any
additional medical record involving Plaintiff's
respiratory health, assisted living profile, CPAP container
or machine, and prescribed breathing treatments.” (Doc.
no. 109, p. 7.)
November 9, 2018, Defendants filed a “Notice of Partial
Compliance with Court Order.” (Doc. no. 122.) Therein,
Defendants informed the Court of their progress with respect
to “Item No. 9.” (Id. at 3-4.)
Defendants stated they had followed the Court's October
12th Order and were only able to locate two emails pertaining
to marijuana smoke, which Defendants produced to Plaintiff.
(Id. at 4.) Also, in the November 9th Notice,
Defendants stated they were in the process of obtaining the
medical records as ordered by this Court. (Id. at
2.) On December 12, 2018, Defendants notified the Court
through a motion for an extension of the dispositive motion
deadline they have still not received the remaining medical
files for “Item No. 2” from the Georgia
Department of Corrections (“GDC”) and are working
to obtain the medical files and provide them to Plaintiff.
(Doc. no. 124, p. 2.)
Court denies the motion because it is premature and likely
rendered moot by Defendants' ongoing discovery efforts.
Plaintiff's filing does not contain, as is required by
Local Rule 26.5, a statement that Plaintiff has made a good
faith effort to resolve this discovery dispute with defense
counsel. His motion to compel runs afoul of Local Rule 26.5,
about which the Court previously informed Plaintiff twice:
If Plaintiff wishes to file a motion to compel pursuant to
Fed.R.Civ.P. 37, he should first contact the attorney for the
defendants and try to work out the problem; if Plaintiff
proceeds with the motion to compel, he should file a
statement certifying that he has contacted opposing counsel
in a good faith effort to resolve any dispute about
discovery. Loc. R. 26.5.
(Doc. nos. 25, p. 7; 109, p. 3.)
duty-to-confer prerequisite is not an empty formality.
Merritt v. Marlin Outdoor Advert. Ltd., CV 410-053,
2010 WL 3667022, at *4 (S.D. Ga. Sept. 15, 2010). Failure to
include such good faith certification, or to make the
requisite good faith effort, amounts to a failure to comply
with Federal Rule 37(a)(1) and Local Rule 26.5 and warrants
denial of the discovery motion. See Holloman v. Mail-Well
Corp., 443 F.3d 832, 844 (11th Cir. 2006) (affirming
denial of discovery motion based on “a failure to work
with the defendants in good faith” during discovery
process); Haynes v. JPMorgan Chase Bank, N.A., 466
Fed.Appx. 763, 765-66 (11th Cir. 2012) (affirming denial of
motion to compel where movant failed to consult in good faith
with opponent before filing motion); see also Layfield v.
Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir.
1979) (holding that failure to comply with the
Local Rules may result in summary denial of a motion).
it appears Plaintiff drafted this motion sometime in late
November 2018 because the certificate of service attached to
his motion is signed and dated for November 24, 2018, and the
attached envelope is dated November 28, 2018. (Doc. no. 128,
pp. 3-4.) During this time, Defendants were still in the
process of gathering discovery they were ordered to produce
to Plaintiff in the Court's September 11, 2018 Order and
October 12, 2018 Order. (See doc. nos. 109, 115,
119, 122.) Also, on December 17, 2018, Plaintiff filed a
motion for summary judgment, signed December 7, 2018, which
was after Defendants' last notice of partial compliance.
(Doc. nos. 123, 126.) Therefore, the Court will briefly
address Plaintiff's motion to evaluate if there is any
merit to his requests after Defendants' notices of
compliance with Court orders.
respect to “Item No. 9, ” Defendants stated they
could not locate any emails reflecting complaints of poor air
quality due to marijuana or tobacco smoke but have produced
two emails pertaining to marijuana smoke. (Doc. no. 122, p.
4.) “[T]he Court obviously cannot compel production of
documents that do not exist” and “is generally
entitled to rely on representations made in discovery
requests and responses.” Hunter v. Corr. Corp. of
Am., No. CV 314-035, 2015 WL 5042245, at *2 (S.D. Ga.
Aug. 26, 2015) (internal citations omitted). Thus,
Defendants' search and subsequent production has
fulfilled their obligation as to “Item No. 9.” As
to “Item No. 2, ” Defendants ...