Opinion
CASE NO. 6:20-CV-00792 SEC P
01-27-2021
JAMES MICHAEL MURRAY #2300279537 v. LOUIS AKAL ET AL
JUDGE JUNEAU
ORDER
Now before this Court is a motion to compel (Doc. 34) filed by Plaintiff, James Michael Murray ("Plaintiff" or "Murray), acting pro se in this case. Defendant Roosevelt Peter ("Defendant" or "Peter") is the sole defendant to answer this suit. (Docs. 31, 33). Plaintiff's motion alleges that he propounded interrogatories upon Peter on August 31, 2020, but received no answers. (Doc. 34). Plaintiff's motion also requests that Peters be compelled to produce various documents, including prison records, audio and video recordings. (Id.). Peter timely filed a brief in opposition to Plaintiff's motion. (Doc. 42). The delays for any reply by Plaintiff are now exhausted and, for this reason, we find the motion ripe for disposition.
Plaintiff's Complaint names this defendant as "Rosevelt Peters" but Defendant's answer states his name as "Roosevelt Peter" and, accordingly, we will refer to defendant by his stated name. (Doc. 33).
Louis Akal was named in his capacity as Sheriff of Iberia Parish. (Doc. 24). Akal was replaced by successor Sheriff Thomas S. Romero in July of 2020.
Plaintiff's motion was set for this Court's February 2021 motion docket without oral argument. (Doc. 35). Under LR 7.5, Plaintiff was entitled to file a reply brief no later than seven (7) days following Peters' memorandum in opposition. --------
Fed. R. Civ. P. 37 governs motions to compel discovery. Although Murray is proceeding pro se in this matter, he must adhere to the Federal Rules of Civil Procedure. Pegues v. PGW Auto Glass, L.L.C., 451 Fed. Appx. 417 (5th Cir. 2011). Rule 37 provides that, prior to seeking relief in the form of a motion to compel, the aggrieved party must make a good faith effort to confer with the party from whom discovery is sought. Any motion filed under this rule must contain a certification that the movant made such effort prior to filing the motion. Fed. R. Civ. P. 37(a)(1).
The instant motion seeks answers to interrogatories allegedly served on Peter in August of 2020. Peter, responding through his attorney of record, denies that he was served with these interrogatories. (Doc. 42 at p. 1). Fed. R. Civ. P. 33 requires that a party to whom interrogatories are propounded be given thirty (30) days in which to respond. Plaintiff offers no argument or evidence that he complied with the requirements of Rules 33 and 37.
Additionally, Plaintiff's motion sets forth five (5) requests for production of documents that Peter asserts have not yet been propounded upon him in this suit. Plaintiff's motion does not allege that Peter was served with a copy of these requests for discovery or that any good faith effort to obtain Peter's responses was undertaken.
Given Plaintiff's failure to demonstrate that the discovery at issue in this motion was properly served on Peter or that Plaintiff undertook a reasonable effort to confer with Peter in order to obtain his answers thereto, this Court finds that no relief is warranted. Rather, we instruct Plaintiff to confer with defense counsel in order to comply with Rule 37's requirements.
Finally, in accordance with applicable law and jurisprudence, Iberia Parish Sheriff Thomas Romero should be substituted in place of former Sheriff Louis Akal, as Plaintiff's allegations against Akal do not state claims for individual capacity liability. Corn v. Mississippi Department of Public Safety, 954 F.3d 268, 275 n. 4 (5th Cir. 2017) quoting Lewis v. Clarke, 137 S.Ct. 1285 (2017) ("[W]hen officials sued in their official capacities leave office, their successors automatically assume their role in the litigation.").
Given the foregoing, it is hereby
ORDERED that Plaintiff's motion to compel (Doc. 34) is DENIED. It is further
ORDERED that current Iberia Parish Sheriff Thomas S. Romero is SUBSTITUTED in place of former Iberia Parish Sheriff Louis Akal.
SIGNED this 27th day of January, 2021 at Lafayette, Louisiana.
/s/_________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE