United States District Court, E.D. Kentucky, Northern Division
L. Bunning United States District Judge
matter is before the Court on the Motion to Conduct Fact
Discovery After Deadline filed by Defendants Grant County,
Audra Napier, Tammy Bullock, and Christopher Hankins (the
“County Defendants”). (Doc. # 101). Therein, the
County Defendants seek leave to conduct the depositions of
two former Grant County Detention Center (“GCDC”)
inmates who allegedly served as trustees charged with
observing Plaintiff's condition while she was in an
isolation cell on May 18, 2016, and May 19, 2016.
Id. This matter has been fully briefed and is now
ripe for review. (Docs. # 102 and 105). For the reasons set
forth below, the County Defendants' Motion is
FACTUAL AND PROCEDURAL BACKGROUND
underlying facts have been discussed in the Court's
Memorandum Opinion and Order adjudicating Defendants'
dispositive motions, see (Doc. # 103), and will not
be substantially repeated here. Relevant to the Motion at
hand, at the GCDC jailers used isolation cells for
“medical watch” purposes such as keeping a closer
eye on inmates undergoing withdrawal. (Docs. # 73-5 at 36 and
73-7 at 63). Inmate patients placed in isolation cells for
“medical watch” were monitored more frequently;
the jailer on shift was required to look into the
patient's cell every ten to fifteen minutes. (Docs. #
73-5 at 49-50, 73-11 at 33 and 73-12 at 50-51). The facility
also arranged for inmate trustees to sit outside of
“medical watch” cells to observe and report back
to the jailers any changes in a patient's condition.
(Docs. # 73-2 at 33-34 and 73-12 at 47-48).
corrections expert, Donald Leach, testified that it is an
appropriate correctional practice for trustees to be utilized
this way in order to supplement the jailers' monitoring
of inmates who are on “medical watch.” (Doc. #
101-2 at 2, 5). It is undisputed that “[t]here are
records of trustees watching Plaintiff while Plaintiff was in
medical watch/isolation [with] the exception of May 18, 2016
and May 19, 2016.” The County Defendants claim that
“[t]he watches [on May 18th and May 19th] occurred but
the records of the inmate watches performing during those
crucial days were somehow inadvertently lost.” (Doc. #
101-1 at 2). Mr. Leach “points to these lack of records
as damning evidence that no watches were performed, ”
which supports Plaintiff's constitutional claim and
state-law negligence claim against the County Defendants.
County Defendants now seek to reopen discovery on the issue
of whether trustees watched Plaintiff while she was in the
isolation cell on May 18, 2016, and May 19, 2016, by taking
the depositions of two former inmates who purportedly
“performed a watch of Plaintiff during one of the days
for which there are no records.” (Doc. # 101-1 at 2).
The County Defendants assert that they began to investigate
the two inmates following Donald Leach's July 24, 2018
deposition, wherein he testified regarding the appropriate
use of inmate trustees to supplement jailer monitoring as
well as the lack of records on May 18, 2016, and May 19,
2016. (Docs. # 101-1 and 101-2). Without going into any
specific details, the County Defendants assert that they have
engaged in “diligent and exhaustive efforts” to
locate the two inmates. (Doc. # 101-1 at 2). The County
Defendants indicate that they have located one of the former
inmate trustees; however, as of April 1, 2019, they are still
in the process of locating the second inmate trustee. (Docs.
# 101 at 2 and 105 at 3).
deadline to complete fact discovery expired on April 2, 2018.
(Doc. # 33). Discovery has been closed for nearly eight
months. The parties filed a Joint Status Report on August 16,
2018, reporting that discovery was complete and the parties
were prepared to move forward with filing dispositive
motions. (Doc. # 76). The County Defendants filed their
dispositive motion on July 10, 2018, and the remaining
Defendants filed their dispositive motion on August September
17, 2018. (Docs. # 62 and 83). The County Defendants then
filed the instant Motion on March 15, 2019. (Doc. # 101). The
Court adjudicated the dispositive motions on March 28, 2019,
see (Doc. # 103), and the matter is now ready to be
set for trial. Accordingly, the Court ordered the parties to
file a Status Report by April 17, 2019, setting forth
available dates for a Final Pretrial Conference and Jury
Trial. Id. The County Defendants state that
“[p]ermitting the depositions of the two witnesses may
add a couple of months to the length of this
litigation.” (Doc. # 105 at 1).
Court has broad discretion over discovery matters. Trepel
v. Roadway Express, Inc., 194 F.3d 708 (6th Cir. 1999).
This broad discretion applies to reopening discovery.
Lowe v. Hamilton Cty. Job & Family Servs., No.
1:05-cv-117, 2007 WL 1513823 (S.D. Ohio May 22, 2007).
Accordingly, a scheduling order “may be modified only
for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4); see also Marie v. Am. Red
Cross, 771 F.3d 344, 366 (6th Cir. 2014) (stating that
district courts have “broad discretion under the rules
of civil procedure” in managing the discovery process
and controlling their dockets). In determining whether a
district court has abused its discretion in denying a motion
to reopen discovery, the Sixth Circuit considers five
factors: “(1) when the moving party learned of the
issue that is the subject of discovery; (2) how the discovery
would affect the ruling below; (3) the length of the
discovery period; (4) whether the moving party was dilatory;
and (5) the adverse party's responsiveness to prior
discovery requests.” Bentkowski v. Scene
Magazine, 637 F.3d 689, 696 (6th Cir. 2011) (internal
citations omitted). “The overarching inquiry in these
overlapping factors is whether the moving party was diligent
in pursuing discovery.” Id.
the majority of the Bentkowski factors weigh against
reopening discovery. The first factor-when the moving parties
learned of the issue-weighs against Defendants. The issue of
whether trustees were stationed outside Plaintiff's
isolation cell during her incarceration at the GCDC came up
on multiple occasions during fact discovery. Nurse David
Ross's deposition-wherein he testified regarding the use
of trustees to keep watch outside of cell doors at the
GCDC-took place on December 18, 2017, nearly four months
before the close of fact discovery. (Doc. # 73-2 at 34).
Likewise, at the deposition of GCDC Deputy Tammy Bullock on
January 9, 2018, Plaintiff's counsel elicited testimony
that there was no record of Plaintiff being put on medical
watch during the time period at issue. (Doc. # 73-11 at
28-31). Similarly, at the March 19, 2018 deposition of Jailer
Christopher Hankins, Plaintiff's counsel drew attention
to the fact that there was no supporting documentation to
show that Plaintiff was placed on medical watch or that the
trustees watched Plaintiff during the time period at issue.
(Doc. # 73-7 at 60-62). Thus, the County Defendants had
notice that they should seek out the trustees' testimony
prior to the expiration of the fact discovery deadline, and
the first factor weighs against reopening discovery.
second factor-how the discovery would affect the ruling
below-weighs in favor of the County Defendants. Though the
Court did not find it necessary to discuss the use of
trustees in the adjudication of the Defendants'
dispositive motions, an issue of material fact as to whether
Deputy Bullock placed Plaintiff on medical watch as
instructed by Nurse David Ross on May 18, 2016, did foreclose
summary judgment as to Plaintiff's
deliberate-indifference claim against Bullock pursuant to 42
U.S.C. § 1983. (Doc. # 103 at 33-35). The County
Defendants claim that “[t]he subject witnesses are
going to testify that the County Defendants actually did
perform the subject [medical] watch” during the
relevant time period. (Doc. # 105 at 2). Thus, the second factor
weighs in favor of reopening discovery.
third factor-the length of the discovery period-weighs
against the County Defendants. As the County Defendants
concede, “[t]he parties have engaged in substantial
discovery . . . over the previous two years.” (Doc. #
105 at 2). The Court entered its Scheduling Order on August
23, 2017, (Doc. # 33), and agreed to an extension of time,
extending the discovery deadline to August 1, 2018. (Doc. #
57). The parties have had a significant amount of time to
conduct discovery and the Court has granted every extension
of time Defendants have requested.
the County Defendants concede that additional discovery would
prolong already-protracted litigation. Defendants
state-perhaps optimistically-that “[p]ermitting the
depositions of the two witnesses may add a couple of months
to the length of this litigation.” (Doc. # 105 at 1).
Nonetheless, Defendants admit that the second of the two
witnesses Defendants seek to depose has yet to be located.
Id. at 3. Tellingly, in their Reply the County
Defendants also fail to vitiate the concern Plaintiff raised
in her Response that “[f]ollowing the requested
depositions . . . Defendants would presumably seek to file a
new motion for summary judgment” which would further
extend this litigation. (Doc. # 102 at 2-3). Thus, the third
factor weighs against reopening discovery.
the fourth factor weighs against the County Defendants, as
they were not diligent in pursuing discovery on this issue.
Defendants assert that they did not realize the importance of
the trustees' testimony until expert Donald Leach's
July 24, 2018, deposition-after the close of fact discovery.
(Doc. # 105 at 3). However, the County Defendants fail to
explain why they did not move to reopen fact discovery at
that time and proceeded with filing their dispositive motion
on July 10, 2018-two months prior to the dispositive motion
deadline. (Docs. # 57 and 62). Indeed, the parties' Joint
Status Report on August 16, 2018-which the parties ...