JONATHAN ROBERT JENNINGS WALKER PLAINTIFF v. SHERIFF JASON WATSON, ET AL DEFENDANTS Civil No. 6:20-cv-06114 United States District Court, W.D. Arkansas, Hot Springs Division Filed May 17, 2021 Counsel Jonathan Robert Jennings Walker, Arkadelphia, AR, Pro Se. Jamie Huffman Jones, Friday, Eldredge & Clark, Little Rock, AR, for Defendants Sheriff Jason Watson, Chief Deputy Raymond Funderbuck, Jail Administrator Michael Lesher, Officer Clay. Jamie Huffman Jones, Friday, Eldredge & Clark, Little Rock, AR, Paul D. Waddell, Sam Waddell, Waddell, Cole & Jones, P.A., Jonesboro, AR, for Defendants Manager/Cook Brenda LNU, Representative Halbert Torraca, District Manager James Gainous. Bryant, Barry A., United States Magistrate Judge ORDER Plaintiff Jonathan Robert Jennings Walker proceeds in this matter pro se under 42 U.S.C. § 1983. Currently before the Court are two motions filed by Plaintiff: Plaintiff's Motion for an Order Compelling Discovery from Piggee, Torraca, and Gainous (ECF No. 33); and Plaintiff's Motion for Order to Compel Discovery from Watson, Funderburk, Lesher, and Atkins (ECF No. 34). The Defendants have responded to the Motions and they are ripe for consideration. (ECF Nos. 36, 42). I. BACKGROUND Plaintiff filed his Amended Complaint on October 29, 2020. (ECF No. 7). Plaintiff asserts four claims: a claim based on an alleged violation of his constitutional right to freedom of religion; a claim under 42 U.S.C. 2000cc, the Religious Land Use and Institutionalized Person's Act; a claim based on an alleged violation of his rights under the Fourteenth Amendment Equal Protection Clause; and a claim based on the Eighth Amendment's prohibition of cruel and unusual punishment. (ECF No. 7). The facts supporting the claims center on Plaintiff's allegations that he was not provided a sufficient Kosher diet while being housed at the Clark County Jail. Plaintiff also argues a jail cell in which he was housed contained “racist antisemetic statements” on the walls and door. (ECF No. 7). II. APPLICABLE LAW The scope of discovery in a civil case is governed by Federal Rule of Civil Procedure 26, which provides in part: 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). On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) The discovery sought is unreasonable, cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) The proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C). Further, under 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). The burden is generally on the party resisting discovery to show why discovery should be limited. Cincinnati Ins. Co. v. Fine Home Managers, Inc., 2010 WL 2990118, at *1 (E.D. Mo. July 27, 2010). In carrying this burden, the objecting party cannot rely on mere statements and conclusions but must specifically show how the objected-to disclosures would be irrelevant or overly burdensome, overly broad, or oppressive. See St. Paul Reinsurance Co., Ltd. v. Comm. Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000) (collecting cases). In the Eighth Circuit, a court may sanction a party only where there is an order compelling discovery, willful violation of the order, and prejudice to the opposing party. Keefer v. Provident Life & Accident Ins. Co., 238 F.3d 937, 940 (8th Cir. 2000). III. DISCUSSION A. Motion to Compel Production From Tiger Defendants In his Motion for an Order Compelling Discovery from Piggee, Torraca, and Gainous (the “Tiger Defendants”) (ECF No. 33), Plaintiff seeks to compel the production of the certain discovery which Plaintiff requested through written discovery. For the reasons set forth below, the Court finds the Motion (ECF No. 33) to compel the Tiger Defendants should be denied. First, Plaintiff asks the Court to compel the production of the following: Request for Production No. 5: Inspection and copying any insurance agreement under which an insurance company may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse for payments made to satisfy the judgment. In their Response to Plaintiff's Motion, the Tiger Defendants state they have supplemented their previously produced responses to Plaintiff's written discovery with a copy of the insurance declarations page pertaining to a general liability policy issued to their employer, Tiger Correctional Services, who is not a Defendant in this matter. The Tiger Defendants further state “[i]t remains unknown to these defendants whether or not this particular insurance policy provides any coverage to them for the claims asserted by Plaintiff.” (ECF No. 42). The Court finds that by supplementing their original discovery production with a copy of the declarations page of the general liability issued to Tiger Correctional Services, the Tiger Defendants have complied with Plaintiff's discovery requests to the extent required by the Federal Rules of Civil Procedure. Next, the Plaintiff asks the Court to compel the production of the following: Request for Production No. 7(b): To produce and permit the Plaintiff to inspect, copy, test, or sample the following items in the Defendants' possession, custody or control, or a description by category and location of all documents, electronically stored information and tangible things that the Defense has in its possession, custody or control and may be used to support any claim or defenses to include but not limited to: 1. All commissary commissions and profits for the past three years. 2. Any and all email communications dealing with the following keywords: contracts, Walker, kosher, food, menu, Jew, certification and commissary. 3. All Kosher menus Tiger has at all facilities they serve or have served in the past 3 years. 4. All memos of Tiger relating to Kosher, Walker, menus, holidays, and/or vendors. 5. All research done in reference to Kosher food and Kosher law. 6. All facility contracts Tiger holds to include but not limited to vendors, commissary and food services. 7. A list of all facilities Tiger holds a contract with that serve Kosher foods and a copy of that facility's menu on Kosher. 8. All inventory done between August (2020) and present at the Clark County facility. 9. All food service orders between July (2020) and present at the Clark County facility. 10. All contacts made in reference to Kosher foods. 11. All emails between Tiger and their vendors relating to Kosher foods and Kosher certificates. 12. All employee records, education, certificates held, training, and history that work in or as part of the Clark County food services and commissary. 13. All position descriptions of the food services, district management, and sales department. 14. All names and pictures of all food served to the Plaintiff as Kosher to include but not limited to cake mix, cornbread mix, vegetables, fruits, bread, peanut butter, muffin mix, cereal, rice, gravy, all directions, recipes, and cooking instructions. 15. Tiger's map of hierarchy and/or decision tree. The Tiger Defendants state in response to Plaintiff's written discovery that they provided responsive information to the extent they possessed the same. Further, the Tiger Defendants' original response to Plaintiff's written discovery states the requests appears to seek “information from a non-party.” In their Response to the instant Motion, the Tiger Defendants state, “Plaintiff has sued these individual defendants and not their employer, Tiger Correctional Services (“Tiger”). Yet Plaintiff seeks company documents. Plaintiff must pursue a different avenue of discovery should he desire to discover documents from non-party Tiger.” (ECF No. 42 at 2). Rule 34 provides for the production of documents and things within “the responding party's possession, custody or control.” Fed. R. Civ. P. 34 (a)(1). The Defendants cannot produce records or information they do not have in their possession or control. Further, the Defendants cannot produce what does not exist. Plaintiff, proceeding pro se, can seek information from a non-party by filing a motion for subpoena to the Court, setting forth the specific information or records sought and the relevancy to Plaintiff's claims. B. Plaintiff's Motion to Compel Production From County Defendants In his Motion to compel discovery from Separate Defendants Watson, Funderburk, Lesher, and Atkins (the “County Defendants”), Plaintiff seeks an order compelling the production of certain information following the County Defendants' response to his written discovery. (ECF No. 34). As set forth above, the County Defendants have responded to the Motion. Initially, the County Defendants argue that although the parties did confer, via telephone, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure with respect to certain issues addressed in this Motion, the Plaintiff did not mention, and the parties therefore did not confer about other issues presented. The County Defendants further argue they have sufficiently complied with the requested discovery and that any objections asserted are proper. (ECF No. 36). First, the Court notes that although Federal Rule of Civil Procedure 37(a) allows a party to file a motion to compel a party to produce discovery, the party filing the motion must include a certification that he has in good faith conferred or attempted to confer with the person or party failing to make a disclosure or discovery in an effort to obtain it without court action. Fed. Rule Civ. Pro. 37(a). Although Plaintiff asserts that he “tried in good faith to try and confer before the filing of this Motion” (ECF No. 34 at 5), Defense counsel asserts that the parties only conferred concerning Plaintiff's request to inspect the kitchen. (ECF No. 36 at 3). In any regard, the Court will discuss the merits of each issue raised by the Plaintiff in his Motion. For the reasons set forth below, the Court finds that the Motion should be granted in part, and denied in part. First, Plaintiff seeks an order compelling the following: 1. To permit entry into the property in which the Clark County Detention Center uses as the kitchen, food preparation area, cooking area, refrigeration and freezer area, dry food storage area, and any other area utilized by Tiger Correctional Services, Inc. so that the Plaintiff may inspect ... it. Plaintiff argues that although the County Defendants have objected to Plaintiff's entry into the kitchen due to “security reasons,” he “has a right to witness the kitchen first hand.” Plaintiff further argues that because certain jail trustees are allowed to work in the area, security is not a justifiable reason why Plaintiff should not be able to inspect the kitchen. (ECF No. 34 at 2). In their response, the County Defendants state they have taken photographs of the kitchen area and have provided those to Plaintiff. (ECF No. 36 at 7). The County Defendants also state that during their “conference” they offered to produce additional or different photographs if requested, but “there was no more dialogue on the issue.” (ECF No. 34 at 7). The County Defendants contend they should not be required to allow Plaintiff access to the kitchen because it is a security concern. The County Defendants further explain the kitchen is not in the facility where the inmates are housed, but rather in a separate building across the street, and for Plaintiff to be allowed access to the kitchen he would have to be taken out of his cell, brought across the street, and given access to a facility where there are potential weapons, such as knives. (ECF No. 34 at 7-8). The County Defendants suggest “[a] reasonable alternative would be to provide any photographs not already provided, or even provide a video, if appropriate.” Id. The Court agrees that due to security concerns, the County Defendants' current production of photographs of the kitchen area is sufficient. Plaintiff's Motion is denied in this regard. Next, Plaintiff seeks an order compelling the County Defendants' production of the following financial information: 2. Full communications facility and equipment fund reports for the past 3 years. 3. All commissary commissions and profits for the past 3 years. 4. All telephone and tablet commissions and profits for the past 3 years from City TeleCom. 5. All payments made to Clark County Sheriff's Office for the past 3 years. 7. All county expenditures of the Clark County Sheriff's Office for the past 3 years. 8. All Clark County Sheriff Office contracts for the past 3 years. In their discovery responses, the County Defendants objected to these requests. The County Defendants argue they have provided the Tiger Contract, which is the one at issue in this case, and payments made to Tiger under the contract. Beyond that, the County Defendants argue, “these requests are overly broad, at times unintelligible, and an improper ‘fishing expedition.’ ” (ECF No. 36 at 9). Plaintiff argues he wants such information to “show the budget of the facility and possible ability to pay damages outside of any insurance claim.” (ECF No. 34 at 2, 3). The Court finds that Plaintiff's Motion should be denied in this regard. The financial information sought is not relevant to the issues set forth in Plaintiff's complaint. While financial information could be relevant to issues involving punitive damages, at this stage in the litigation it is not sufficiently clear Plaintiff has a claim to such relief. Next, Plaintiff seeks an order compelling the Separate Defendants to produce the following: 6. Any and all email communication dealing with the keywords: contract(s), Walker, kosher, food, menu, Jew, and certification. In their discovery responses, the County Defendants argue this interrogatory is “overly broad, unduly burdensome, and not relevant to any material issue.” (ECF No. 36 at 10). The County Defendants further argue the material requested is “not appropriately limited by subject matter, date or other qualified that would make it relevant to the case.” (ECF No. 36 at 11). The County Defendants state they are “willing to determine if there are any reasonably accessible emails within the meaning of these rules with Tiger and the Sheriff's Department regarding Mr. Walker and the kosher meals.” (ECF No. 36 at 11). The Court finds that Plaintiff's Motion should be granted with respect to this request with the following limitations: The County Defendants are to provide all email communications between Tiger and the Sheriff's Department which concern Mr. Walker and kosher meals. Next, Plaintiff seeks an order compelling the County Defendants to produce the following: 9. All research and contracts made in reference to Kosher foods and Kosher law. The County Defendants objected in their original discovery responses that the request was overly broad, unduly burdensome, and ambiguous. However, subject to the County Defendants' objection, they have produced the Tiger contract as well as a memorandum by Jail Administration and a kosher witness have been produced. (ECF No. 36 at 12). The County Defendants further state that any other “research” on Kosher foods and Kosher law would have been done by either Tiger or the County Defendants' legal counsel, which is not discoverable as it is protected by work product privilege. Id. The Court finds the County Defendants have sufficiently complied with Plaintiff's discovery request and the Motion should be denied in this regard. Next, Plaintiff seeks an order requiring the production of the following similar requests: 10. All schedules of the workers / employee(s) of the food services at Clark County. 12. List of all inmates on work crews since August 2020 to include name, charge in jail on at moment, photographs of all the inmates' tattoos on file. In their response to the written discovery, the County Defendants objected to this request as overly broad, unduly burdensome, not relevant, and because it poses a security risk to the persons at issue. The County Defendants further argue the disclosure of employee and inmate information is a violation of privacy information. (ECF No. 36 at 13). The Plaintiff argues that such information goes into showing the custom of the Sheriff's Office and jail only hiring white inmates for work crews, including inmates that are known white supremacists with tattoos identifying them as such. (ECF No. 34 at 4). The Court finds that Plaintiff's Motion should be denied in this regard. The disclosure of employee and inmate information could create a security issue and be a privacy violation. Further, the requests are not proportional to the needs of the Plaintiff based on the claims asserted herein. Finally, Plaintiff seeks an order compelling the production of the following: 11. A copy of the Clark County Sheriff's Office map of hierarchy and / or decision tree. Plaintiff argues that he “has the right to understand the steps of who oversees who and what within this office.” (ECF No. 34 at 4). In their responses to the written discovery, the County Defendants objected to the request as overly broad, unduly burdensome, not relevant and ambiguous. Subject to their objections, the County Defendants referred the Plaintiff to the Tiger contract. (ECF No. 36 at 14). The County Defendants further state that the entire Sheriff's Office is not relevant to this action, only the jail detention facility. And, “[t]o the extent that some form of hierarchy exists in written form, it has been requested and will be produced should it exist for the detention facility.” (ECF No. 36 at 15). Based on this information, and the County Defendants' statement that additional information would be provided if available, the Court finds the County Defendants have complied with this discovery request to the extent necessary and that Plaintiff's Motion should be denied in this regard. IV. CONCLUSION For the reasons set forth above, the Court finds and orders as follows: • Plaintiff's Motion for an Order Compelling Discovery from Piggee, Torraca, and Gainous (ECF No. 33) should be, and hereby is, DENIED; and • Plaintiff's Motion for Order to Compel Discovery from Watson, Funderburk, Lesher, and Atkins (ECF No. 34) is GRANTED to the extent that the County Defendants are ordered to provide any email communications between Tiger and the Sheriff's Department which concern the Plaintiff and kosher meals; the Motion is DENIED in all other respects. IT IS SO ORDERED this 17th day of May 2021.