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Hertel v. Dvorak

United States District Court, N.D. Indiana, South Bend Division

September 26, 2014

TRACY HERTEL, Plaintiff,
v.
MICHAEL DVORAK, et al., Defendants.

OPINION AND ORDER

JON E. DEGUILIO, District Judge.

I. Procedural History

Tracy Hertel, a prisoner confined at the Miami Correctional Facility, filed a typewritten 122 page pro se verified complaint pursuant to 42 U.S.C. § 1983, containing 583 rhetorical paragraphs and naming thirty-one defendants [DE 1]. The Court screened the complaint pursuant to 28 U.S.C. § 1915A [DE 13], and allowed Hertel to proceed only on his First Amendment and Fourteenth Amendment claim for damages against St. Joseph County Jail Property Officer Yolonda Miller-Lewis in her personal capacity for her alleged destruction of Hertel's legal materials after he was confined at the St. Joseph County Jail and upon his transfer to the Reception and Diagnostic Center (RDC) on May 1, 2008, [1] thereby impeding his legal efforts to file civil suits. All of the other claims asserted against the various defendants were dismissed.

Thereafter, Hertel filed a 61 page amended and supplemental verified complaint containing 343 rhetorical paragraphs [DE 22 ¶¶ 584-927]. After screening the amended complaint pursuant to § 1915A, the Court allowed the amended claim under the First and Fourteenth Amendments against Officer Miller-Lewis in her personal capacity alleging she stole Hertel's legal materials which impeded his filing of civil lawsuits (against his former public defender and those involved in the investigation and prosecution of his criminal case) [DE 22 ¶¶ 784-89, 797-800, 802-08]; and, allowed Hertel to proceed against Jail Warden Julie Lawson for damages resulting from alleged violations of the First and Fourteenth Amendments where she was deliberately indifferent to the theft of his legal materials (a personal capacity claim) and she allowed a custom and practice at the jail which resulted in the theft of Hertel's legal materials (an official capacity claim) [DE 22 ¶¶ 809-12, 815-16, 818, 820-23][2]. Although Hertel asserted other claims against Officer Miller-Lewis and Warden Lawson, as well as against other defendants, these claims were all dismissed.

II. Review of the Magistrate Judge's Orders

During the discovery phase of this lawsuit, the magistrate judge issued orders [DE 94; DE 117], to which Hertel has objected [DE 98; DE 123; DE 125]. The magistrate judge's order ruled on various pending (and somewhat convoluted but certainly overlapping) requests by Hertel, which the undersigned now reviews. In reviewing the magistrate judge's order on non-dispositive matters, [3] the undersigned must "modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); see Weeks v. Samsung Heavy Indust. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).

First, the magistrate judge indicated that Hertel was not entitled to a summary ruling as requested in DE 96, because the defendants' response to Hertel's first motion for summary judgment ("MSJ") was timely. But per DE 96 and DE 106, Hertel was not seeking a summary ruling on his first MSJ (docketed on November 18, 2013 [DE 74]); rather, Hertel explicitly sought a summary ruling on his second MSJ (which was mailed on December 17, 2013 [DE 86 at 24] and docketed on December 23, 2013 [DE 86]). On December 16, 2013, defendants did in fact timely respond [DE 85] to Hertel's first MSJ, but they never responded to Hertel's second MSJ. Despite this confusion, the undersigned agrees that a summary ruling is inappropriate on any of Hertel's summary judgment motions because even without a response the court must still determine whether based on undisputed facts Hertel is entitled to judgment under the applicable law. Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565, 568 (7th Cir. 1992) (citing Fed.R.Civ.P. 56(e)). Accordingly, Hertel's requests for summary rulings are DENIED [DE 91; DE 96; DE 101; DE 106]; however, the undersigned will consider Hertel's designated facts therein for the purpose of ruling on the underlying motions for summary judgment [DE 74 and DE 86].

To the extent Hertel wanted defendants' response [DE 85] to his first MSJ struck as untimely, the undersigned DENIES the request [DE 91], because even Hertel admitted that defendants had until December 19, 2013 to respond, and their response was timely filed on December 16, 2013 [DE 85]. It appears Hertel also requested to have defendants' response struck because defendants only argued that Hertel's first MSJ was moot because it was based on subsequently revised discovery responses [DE 91; DE 101]. By way of history, when defendants filed their response [DE 85], also pending was defendants' request to withdraw and amend [DE 78; DE 79; DE 81] a set of Request for Admissions (along with accompanying interrogatories) that was sent by Hertel and went unanswered by defendants after thirty days. The magistrate judge allowed defendants to amend their admissions [DE 94], a decision the magistrate judge later reiterated [DE 117], and to which Hertel has objected ever since [ see, e.g. , DE 91; DE 92; DE 93; DE 98]. To avoid possible prejudice to Hertel on account of allowing the amended Request for Admissions responses, the magistrate judge extended the deadline for the filing of dispositive motions [DE 94].

According to Hertel [DE 92 at 2], on September 20, 2013, he mailed defense counsel and the individual defendants at the St. Joseph County Jail his discovery requests, including the Request for Admissions. Once the Request for Admissions was not timely answered, Hertel filed his first MSJ. The defense has acknowledged that Hertel had mailed defense counsel a copy of the Request for Admissions; however, they inadvertently overlooked them because they were placed in another case file. In addition, defense counsel assumed any discovery from Hertel would be filed via CM/ECF, which is required in pro se litigation-but in this case, Hertel had failed to file his Request for Admissions with the court. See N.D. Ind. L.R. 26-2(a)(2)(A). Once Hertel actually filed his Request for Admissions on November 18, 2013 [DE 68-70], defendants responded within thirty days by seeking to withdraw and amend the admissions on December 13, 2013 [DE 78].[4] Relative to the requested admissions, defense counsel confirmed that they were not going to dispute that Hertel's legal books and papers were lost and that jail personnel were unable to locate them; however, defendants wished to amend with denials any allegations that there existed a conspiracy or policy to steal or otherwise destroy inmate's legal property from the jail property room.

The magistrate judge determined [DE 94; DE 117] that with good cause shown, and given the lack of bad faith on the part of defendants, the brief nature of the delay, and the policy favoring the presentation of a case on the merits, see Rules 16(b) and 36(b), the interests of justice required allowing defendants to amend their responses to the Request for Admissions. For the following reasons, the undersigned finds no error in allowing the amended responses.

The magistrate judge correctly applied Rules 16 and 36 in deciding to allow the amended responses. Under Rule 36(b): "A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." Moreover, Rules 6(b) and 16(b) permitted the belated discovery responses with good cause and excusable neglect shown.

In this case, allowing the withdrawal of the admissions will aid in the presentation of the merits of the action. The defendants wish to amend their responses in order to deny allegations that they have been denying since the filing of their answers to the complaint and amended complaint. Moreover, resolution of the merits in this case is preferable to a judgment entered largely because of the inadvertence and excusable neglect of defense counsel who mistakenly placed the discovery in another case file, and because Hertel failed to properly file his discovery requests on CM/ECF (which would have provided further, and rightfully expected, notice to defendants of the pro se discovery submissions). See Lewis v. School Dist. #70, 523 F.3d 730, 740 (7th Cir. 2008) (reasoning that the determination of excusable neglect is an equitable one, taking account of all relevant circumstances surrounding the party's omission) (citation omitted).

The question which remains is whether Hertel is prejudiced by the subsequent withdrawal. While Hertel's first MSJ relied in part on the initially un-responded to Request for Admissions he is of the belief that his first MSJ can still be granted despite the amended admissions [ see, DE 91 at 4; DE 98 at 7]; and even if not, the magistrate judge gave additional time for Hertel to file further dispositive motions. And although the amended responses came just after the closing of discovery, they were consistent with previous filings by defendants and Hertel has actively litigated this case all along and extensively engaged in the discovery process in order to obtain evidence required in an attempt to prove the matters that would have otherwise been admitted.

Hertel's argument that he postponed conducting any further discovery after October 20, 2013 on the mistaken belief that the Request for Admissions would be deemed admitted, is not well taken. First, the magistrate judge had required any discovery to be initiated by October 4, 2013. And second, Hertel actually served additional discovery on defendants on November 18, 2013 [DE 71-1; DE 73].

Despite the amended responses and the closing of the discovery period (on December 6, 2013), Hertel has never been estopped from obtaining additional affidavits or declarations from his own supporting witnesses-even if doing so became more inconvenient because of the relocation of those witnesses [DE 93; DE 98]. In fact, Hertel's January 21, 2014 [DE 95] filing shows that Hertel has continued his attempt at locating key witnesses. Simply put, the short delay in amending the responses to the Request for Admissions has not prevented Hertel from continuing his discovery efforts and prosecuting his claims on the merits.

Ultimately, the denials defendants wish to make are consistent with their previous denials, and there is no showing of bad faith on the part of defendants who immediately sought to respond to the Request for Admissions when they became aware of the outstanding discovery. The undersigned concludes that there has been an insufficient showing of prejudice. The magistrate judge's ruling is affirmed in this respect.

Hertel also objected to the magistrate judge's curtailing of discovery by not allowing Hertel to initiate belated discovery even though the magistrate judge allowed defendants to amend their discovery responses [DE 98; DE 107]. However, magistrate and district courts enjoy extremely broad discretion in controlling discovery. Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115-16 (7th Cir. 2013) ("A district court may only overturn a ...


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