United States District Court, D. Delaware
ANTHONY A. NASH, Plaintiff,
CONNECTIONS CSP, INC., et al, Defendants.
plaintiff, Anthony A. Nash ("Nash"), an inmate at
the Howard R. Young Correctional Institution, Wilmington,
Delaware, filed this lawsuit pursuant to 42 U.S.C. §
1983. (D.I. 3.) Nash appears pro se and has paid the
filing fee. The operative fifth amended complaint is found at
D.I. 83. Presently before the court are several motions filed
by the parties. (D.I. 229, 230, 234, 238, 241, 253, 261.)
MOTION FOR PROTECTIVE ORDER
defendant Jason Justison, DMD ("Dr. Justison")
seeks a protective order pursuant to Fed.R.Civ.P. 26(c) to
protect him from answering discovery and discovery motions
filed by Nash beyond the January 22, 2018 discovery deadline.
(D.I. 229.) The State defendants Dr. Marc Richman ("Dr.
Richman") and C/O Elliott Clark ("Clark")
(together "State defendants") and the other medical
defendants Connections Community Support Programs, Inc.
("CCSP"), Taurance Bishop, D.D.S. ("Dr.
Bishop"), Mikelle Phillips, M.D. ("Dr.
Phillips"), Mitchell A. White, P.A. ("White"),
Christine Claudio ("Claudio"), Karen Lewis
("Lewis"), Tracey Crews ("Crews"), and
Mary Helen Stewart ("Stewart") (the other medical
defendants along with Dr. Justison (the "medical
defendants")) move to join Dr. Justison's motion.
(D.I. 230, 234).
court entered a scheduling and discovery order on October 23,
2017, that provided for all discovery to be initiated so that
it would be completed on or before January 22, 2018, and for
the service and filing of dispositive motions on or before
March 22, 2018. (D.I. 143.) The discovery deadline has not
been extended, and dispositive motions have been filed. On
April 4, 2018, two months after the expiration of the
discovery deadline, Nash propounded a third request for
admissions directed to the defendants. (D.I. 222.) In his
opposition, Nash argues the defendants need to provide full
discovery (D.I. 239), and in his reply he argues that a
request for admission under Fed.R.Civ.P. 36 is not a
discovery device, but is an "issue narrowing
procedure" (D.I. 235). Nash also argues that the
defendants have not demonstrated any reasons to warrant a
Rule 26(c), "[t]he court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.
Fed.R.Civ.P. 26(c)(1). Included in the protections
contemplated by Rule 26(c) is a protective order that forbids
disclosure or discovery. Fed.R.Civ.P. 26(c)(1)(A). This
court's practice includes requests for admissions as a
means of discovery for purposes of the discovery deadline.
Contrary to Nash's position, "it is abundantly clear
that 'requests for admission' is a method of
discovery under Federal law." Mine Safety Appliances
Co. v. North River Ins. Co., 2012 WL 12930389, at *2
(W.D. Pa. Sept. 2, 2012); see also e.g., GrayHoldco, Inc.
v. Cassady, 654 F.3d 444, 460 (3d Cir. 2011) (discovery
was quite extensive including 200 separate interrogatories
and requests for admission); Friedman v Live Nation
Merch., Inc., 833 F.3d 1180, 1185 (9th Cir.
2016) (plaintiff attempted to "sidestep" discovery
with regard to the request for admissions dispute);
Millbrook v. United States, 564 Fed.Appx. 855, 858
(7th Cir. 2014) (plaintiff adequately engaged in
discovery by preparing interrogatories and requests for
admissions); Calico Brand, Inc. v. Ameritek
Imports, Inc., 527 Fed.Appx. 987, 992 (Fed. Cir. 2013)
(during discovery plaintiff made concessions in response to
requests for admission); Oklahoma ex rel. Doak v.
Acrisure Bus. Outsourcing Services, LLC, 529 Fed.Appx.
886, 892 (10th Cir. 2013) (lawyers never
propounded a request for admission through the discovery
noted in prior orders, the discovery deadline has passed and
it has not been extended. Nash has served numerous discovery
requests upon the defendants. Requiring the defendants to
respond to discovery served upon them after the expiration of
the discovery deadline not only places an undue burden upon
them, but is also in derogation of this court's October
23, 2017 Order. (See D.I. 143.) Therefore, the court
will grant the defendants' motions. (D.I. 229, 230, 234.)
MOTION FOR RECONSIDERATION
April 30, 2018, the court denied Nash's motion for
injunctive relief. (See D.I. 233.) In the motion,
Nash asked the court to order his removal from the dormitory
setting of the Key program and to restore his work status so
that he could continue to earn good time
credits.(D.I. 217.) Nash seeks reconsideration on
the grounds that his reply (D.I. 236), dated April 27, 2018,
and received by the court on May 2, 2018, was not considered.
purpose of a motion for reconsideration is to "correct
manifest errors of law or fact or to present newly discovered
evidence." Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
"A proper Rule 59(e) motion . . . must rely on one of
three grounds: (1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to
correct a clear error of law or fact or to prevent manifest
injustice." Lazaridis v. Wehmer, 591 F.3d 666,
669 (3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A
motion for reconsideration is not properly grounded on a
request that a court rethink a decision already made. See
Glendon Energy Co. v. Borough of Glendon, 836 F.Supp.
1109, 1122 (E.D. Pa. 1993). Motions for reargument or
reconsideration may not be used "as a means to argue new
facts or issues that inexcusably were not presented to the
court in the matter previously decided." Brambles
USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del.
1990). Reargument, however, maybe appropriate where "the
Court has patently misunderstood a party, or has made a
decision outside the adversarial issues presented to the
court by the parties, or has made an error not of reasoning
but of apprehension." Brambles USA, 735 F.Supp.
at 1241 (D. Del. 1990) (citations omitted); See also
D. Del. LR 7.1.5.
court has reviewed Nash's reply (D.I. 236), and once
again reviewed his motion for injunctive relief and the
defendants' opposition. Nash's motion for
reconsideration fails on the merits because he has not set
forth any intervening changes in the controlling law or clear
errors of law or fact made in the order denying his motion
for injunctive relief. See Max's Seafood Cafe,
176 F.3d at 677. In addition, the inmate statement attached
to the reply does not provide support to warrant the
injunctive relief sought by Nash. Therefore, the court will
deny the motion for reconsideration. (D.I. 238.)
MOTION FOR COSTS
moves for an order for an award of fees and costs in
connection with service of process on the grounds that the
medical defendants failed to waive service of summons as set
forth in Fed.R.Civ.P. (4). (D.I. 241.) Nash did not proceed
in forma pauperis until June 27, 2017. (D.I. 116.)
He states that he remitted $662.35 in service fees to the
United States Marshals Service to effect service. Nash was
required to seek personal service when the medical defendants
did not waive service, and he was ordered to remit monies to
effect service, which he did in the amount of $590.35.
(See D.I. 53, 80, 85.)
court will hold a ruling on the motion in abeyance pending
the medical defendants' response to Nash's motion.
Service fees may be imposed should the medical defendants
fail to respond to the motion. See Fed. R. Civ. P.
MOTION FOR AN ...