United States District Court, S.D. Illinois
G. WILKERSON United States Magistrate Judge.
pending before the Court are various motions filed by
Plaintiff related to discovery in this matter.
first seeks to issue subpoenas for medical records from the
Menard Correctional Center (in order to secure 7 volumes of
his medical records from 1985 to the present and to inspect
the records), the Brain and Spine Institute, St. Joseph
Memorial Hospital, St. Elizabeth's Hospital, St. Louis
University Hospital, and Touchette Regional Hospital (Doc.
next seeks to reinstate various discovery related motions
that were deemed moot when counsel was recruited for
Plaintiff on October 9, 2015 (Doc. 288). Those motions
include Documents 112, 128, 134, 136, and 138, all filed
between August 14, 2015 and October 6, 2015.
also seeks to compel additional and fuller responses to an
April 22, 2016 third request for production of documents, to
which a response was served on May 23, 2016 (Doc. 293, 294).
Plaintiff's counsel moved to withdraw (at Plaintiff's
request) and was granted the same on October 19, 2016 (Doc.
198). Plaintiff has been proceeding pro se since
motions (Docs. 287 and 288) were filed almost a year after
the discovery deadline, 8 months after Plaintiff's
counsel withdrew, and less than 3 months prior to trial. They
are untimely. Plaintiff's motion to compel additional
responses to the third request for production of documents
also is untimely (Docs. 294/293). After Defendants served
their response to these requests on May 23, 2016, no motion
to compel additional responses was filed prior to the
decision to reopen discovery and compel additional discovery
responses is reviewed for an abuse of discretion. Flint
v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015).
“That discretion is considerable: case management
depends on enforceable deadlines, and discovery ‘must
have an end point.'” Id. (quoting
Stevo v. Frasor, 662 F.3d 880, 886 (7th Cir. 2011)).
The discovery deadline in this matter was June 1, 2016 (Doc.
155). Federal Rule of Civil Procedure 6(b)(1)(B) provides
that when a motion for extension of time is filed after a
deadline expires, the time may be extended upon a showing of
“excusable neglect.” In order to show excusable
neglect, Plaintiff “must demonstrate genuine ambiguity
or confusion about the scope or application of the rules or
some other good reason for missing the deadline, in addition
to whatever lack of prejudice and absence of delay he can
show.” Satkar Hospitality, Inc. v. Fox
Television Holdings, 767 F.3d 701, 707 (7th
Cir. 2014). In considering whether Plaintiff has made such a
showing, the Court should weigh the equities and may consider
prejudice to the opposing party, the length of delay and how
it will affect Court proceedings, the reason for the delay,
and whether Plaintiff has acted in good faith. Id.
Plaintiff has made no such showing. Even if Plaintiff did
touch upon these areas and offer some reason why the
discovery deadline should be reopened in order for him to
conduct additional discovery, this Court cannot find that it
would be equitable to do so.
Plaintiff seeks to subpoena his medical records and other
documents from various healthcare providers, some dating back
to 1985. Plaintiff offers no reason why medical records from
1985, or from the other service providers, would be relevant
to these proceedings. Plaintiff also offers no reason why
these documents were not sought earlier even though Plaintiff
himself should be keenly aware of what medical procedures and
examinations he underwent from each of the service providers.
There is no showing that any of the records sought are
related to the conditions that are the subject of this
lawsuit. As to the motions that were mooted upon recruitment
of counsel, Plaintiff, through counsel, had ample opportunity
to reassert those motions in a timely manner (i.e. before the
discovery deadline). And, Plaintiff could have sought
reinstatement of these motions shortly after counsel
withdrew, if indeed Plaintiff believed that his attorney was
an impediment to acquiring the discovery that he now believes
is necessary (a claim Plaintiff does not make in his
motions). Finally, the request to compel additional responses
to the third request for production of document is wholly
untimely. If Plaintiff were allowed to go on a wide-ranging
hunt for new documents at this point in the litigation (after
summary judgment has been decided and on the eve of trial),
this matter will be indefinitely delayed in order to allow
both Plaintiff and Defendants to review the material.
Defendants can only be prejudiced by the additional delay in
resolution of this matter.
addition, Federal Rule of Civil Procedure 16(b)(4) provides
that a schedule may be modified upon good cause shown.
Plaintiff has not indicated what good cause exists to modify
the Scheduling Order to allow additional discovery. Federal
Rule of Civil Procedure 26(b)(2)(C)(ii) further provides that
the Court may limit discovery if “the party seeking
discovery has had ample opportunity to obtain the information
by discovery in the action.” The original Scheduling
Order was entered on November 19, 2014 (Doc. 52). The
exhaustion issue was determined on August 24, 2015 (Doc.
115). The discovery deadline was June 1, 2016 (with a one
month extension being granted to conduct depositions) (Doc.
155, 172). As such, Plaintiff had at least 10 months to
conduct discovery, a time period sufficient to acquire the
documents that he now requests via subpoena from Menard CC
and the various hospitals where he was treated. Plaintiff
also had ample opportunity to compel additional responses to
the third request to produce and to reinstate his other
discovery motions filed in 2015.
also seeks (Doc. 292) to unseal documents subject to a
Protective Order entered in this matter (Doc. 111). To the
extent that Plaintiff has properly objected to the Protective
Order pursuant to Federal Rule of Civil Procedure 72(a),
those issues will be addressed by the District Court. The
documents that Plaintiff seeks to unseal are handbooks,
policies, and contracts authored or entered into by Wexford
Health Sources, Inc., which is no longer a party to this
lawsuit. Such documents have not been filed in this case and
are not “sealed.” However, the documents are
subject to the Protective Order (Doc. 198), were provided by
Defendant Wexford in camera (Doc. 202), and were
considered by the Court on summary judgment (Doc. 240, p. 13
n. 12). These documents do not appear relevant to the current
claims in this case and their public disclosure is not
necessary for resolution of this matter in this Court. To the
extent that Plaintiff seeks to immediately unseal the
documents, the request is DENIED WITHOUT PREJUDICE.
Plaintiff has also filed a Notice of Appeal (Doc. 250) in
which he challenges the dismissal of the claims against
Wexford on Counts 2-6 and the grant of judgment to Wexford on
Count 1. This Court further anticipates that Plaintiff will
also seek to appeal this matter once final judgment is
actually entered. In order to ensure that the record is
complete, Wexford SHALL file the documents produced for
in camera inspection under seal by August 9, 2017.
Defendants shall arrange for Plaintiff to view the documents
in a manner consistent with paragraph 2 of the Protective
Order (Doc. 111) by August 23, 2017. If Plaintiff requires
additional time to view the documents prior to the entry of
final judgment in this matter he may file a motion.
parties are further informed that the Court is inclined to
reconsider the scope of the Protective Order in light of
Plaintiff s arguments that the documents have been made
public in the prison's law library and/or by operation of
law and that the documents are not entitled to be sealed.
Defendant Wexford shall address whether all or part of the
documents should remain sealed by August 18, 2017. Plaintiff
may respond by September 1, 2017.
Plaintiffs claim that Defendants have acted in bad faith is
wholly without merit and will not be addressed further. To
the extent that Plaintiff has sought other relief not
specifically addressed in this Order, those requests are
the “Motion for Court Review . . .” filed by
Plaintiff on June 21, 2017 is DENIED (Doc. 287); the
“Motion to Reinstate Motions . . .” filed by
Plaintiff on June 21, 2017 is DENIED (Doc. 288); the
“Motion to Unseal Documents . . .” filed by
Plaintiff on July 6, 2017 is DENIED WITHOUT PREJUDICE IN PART
and TAKEN UNDER ADVISEMENT IN PART as set forth above (Doc.