DiCesare v. Makinson et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOSEPH ANGELO DICESARE,
Plaintiff,
v.
GARY MAKINSON, Okmulgee Deputy
Sheriff,
JOSHUA WHITNEY, Okmulgee
Deputy Sheriff,
FNU LAWSON, Okmulgee Deputy
Sheriff,
CINDY STEPHENS,
KRISTI D. BOYDSTON, and
DEPARTMENT OF HUMAN
SERVICES
Defendants.
Case No. 21-CV-231-RAW
OPINION AND ORDER
Before the court is Plaintiff Joseph Angelo DiCesare’s (“Plaintiff”) motion to compel
discovery. Dkt. No. 72. Defendants Oklahoma Department of Human Services (“OKDHS”) and
Gary Makinson (“Makinson”) filed separate response briefs in opposition to Plaintiff’s motion.
Dkt. Nos. 75, 76]. The motion to compel is fully briefed. Also before the court is Defendant
Makinson’s motion to strike Plaintiff’s reply brief. Dkt. No. 78.
For the reasons stated, Defendant Makinson’s motion to strike [Dkt. No. 78] is GRANTED
and Plaintiff’s motion to compel [Dkt. No. 72] is DENIED.
BACKGROUND
On May 5, 2022, Plaintiff mailed discovery requests to OKDHS and Makinson. Dkt. No.
72 at Ex. A, B. Specifically, Plaintiff directed seven (7) requests for production of documents to
Makinson and a single request for production to OKDHS. Id.
6:21-cv-00231-FAB-GLJ Document 87 Filed in ED/OK on 06/14/23 Page 1 of 6

2
On June 3, 2022, Defendant Makinson responded to Plaintiff’s discovery requests,
indicating that there were no responsive documents in his possession. Dkt. No.75, Ex. 2. OKDHS
has informed the court that it also responded to Plaintiff’s discovery requests. Dkt. No. 76. Plaintiff
filed the instant motion to compel on February 1, 2021. Dkt. No. 72. On May 30, 2023, the court
entered an order granting OKDHS’s motion to dismiss; therefore, Plaintiff’s instant motion to
compel only pertains to Defendant Makinson. Dkt. No. 76.
APPLICABLE LAW
The Federal Rules of Civil Procedure provide:
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. C IV. P. 26(b)(1). During the discovery process a requesting party may obtain relevant
documents, electronically stored information, and other tangible things that are “in the responding
party’s possession, custody, or control.” FED. R. C IV. P. 34(a).
Where disagreements arise with respect to discovery, the requesting party “may move for
an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The motion must include
a certification that the movant has in good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.
ANALYSIS
The court must first address Defendant Makinson’s motion to strike Plaintiff’s reply in
support of his motion to compel. Dkt. No. 78. If granted, the court will not consider arguments in
the reply in deciding Plaintiff’s motion to compel.
6:21-cv-00231-FAB-GLJ Document 87 Filed in ED/OK on 06/14/23 Page 2 of 6

3
As Defendant points out, Plaintiff’s reply brief is fifteen (15) pages long and contains
twelve (12) exhibits. The local rules of this court are clear that reply briefs may not exceed ten
(10) pages without authorization from the court. See LCvR 7.1(e). Plaintiff did not seek leave of
court in advance of filing his 15-page reply brief.1 Yet more significantly, Plaintiff’s reply brief
does not address new matters contained in Defendant’s response. Instead, Plaintiff’s reply consists
of accusations of misconduct by defense counsel, long-winded narratives regarding unserved
defendants, and complaints regarding alleged mistreatment by non-parties (some of which date
back nearly four decades). Dkt. No. 77. None of the exhibits appended to Plaintiff’s reply brief
bear on the arguments at issue in his discovery motion. Id. at Exs. A-L. For these reasons, the court
grants Defendant’s motion to strike and will not consider the arguments in Plaintiff’s reply 	in
deciding the underlying motion to compel (which arguments, in any event, do not relate directly
to this discovery dispute and thus would not impact the outcome of the same).
Turning to the motion to compel, the court first notes that Plaintiff fails to include in his
motion a certification that he has in good faith conferred or attempted to confer with Makinson to
obtain the discovery he seeks without requesting this court to intervene. Rather than merely failing
to formally certify that he conferred or attempted to confer with either defendant, it appears
Plaintiff did not attempt to confer whatsoever. See Dkt. No. 76 (“Finally, Plaintiff has not and
makes no averment in his motion that he conferred or attempted to confer in good faith to resolve
this issue as required by F ED. R. C IV. P. 36(a)(1).”). Plaintiff’s motion may be denied for this reason
alone. See, e.g., Cavanaugh v. Southern California Permanente Medical Group, Inc., 583 F. Supp.
1 Plaintiff is proceeding in this lawsuit pro se. The court construes liberally the pleadings of pro
se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Although pro se pleadings are
held to a less stringent standard than pleadings drafted by lawyers, a pro se litigant must “follow
the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994).
6:21-cv-00231-FAB-GLJ Document 87 Filed in ED/OK on 06/14/23 Page 3 of 6

4
2d 1109, 1139-40 (C.D. Cal. 2008) (stating that “failure to provide . . . a FED. R. C IV. P. 37(a)
certification will result in the court’s refusal to consider any such discovery motion.”); Bibbs v.
New River Community and Technical College, 285 F.R.D. 382, 390 (S.D.W. Va. 2012) (“Based
on a review of the record, Plaintiff failed to file a certification in compliance with Rule 37.
Accordingly, it is hereby ORDERED that Plaintiff's Motion to Compel (Document No. 32.)
is DENIED.”).
The Local Rules for the United States District Court for the Eastern District of Oklahoma
similarly require that the parties confer in advance of filing, among other things, a motion to
compel. LCvR 7.1(f) (“With respect to all non-dispositive motions or objections (including all
discovery matters and motions in limine), the Court shall refuse to hear any such motion or
objection unless counsel for movant first advises the Court in writing that counsel personally have
met and conferred in good faith and, after a sincere attempt to resolve differences, have been unable
to reach an accord.”) (emphasis in original).2
Yet the court is of the opinion, and holds, that Plaintiff’s motion is properly denied on the
merits. Plaintiff’s discovery requests to Defendant Makinson seek (i) Okmulgee County Sheriff’s
Office crime reports for a period of over a decade, (ii) Defendant’s “oath into office,” (iii)
Okmulgee County Sheriff’s Office property logs, (iv) copies of the Okmulgee County Sheriff’s
Office “value oath” and “creedo,” (v) dash- and body-cam footage, (vi) Okmulgee County
Sheriff’s Office dispatch logs, and (vii) unspecified materials regarding how the Okmulgee County
Sheriff’s Office handle “senior mentally challenged” individuals. Dkt. No. 72, Ex. B-2.
To the extent Plaintiff describes the documents he seeks with specificity, Defendant
Makinson responds that many of the documents are irrelevant, and, significantly, none are in his
2 See note 1, supra.
6:21-cv-00231-FAB-GLJ Document 87 Filed in ED/OK on 06/14/23 Page 4 of 6

5
possession or subject to his control. Dkt. No. 75 at Ex. 2. Without deciding the issue, on review of
the discovery requests, the court is of the opinion that several (though not all) items sought in
Plaintiff’s discovery requests are indeed relevant to the claims and defenses in this lawsuit.
However, Plaintiff is only entitled to discover materials from Makinson that are in Makinson’s
“possession, custody, or control.” F ED. R. C IV. P. 34(a).
As Defendant represents in his response to Plaintiff’s motion to compel (and in his
responses to Plaintiff’s discovery requests), he does not have possession of the materials Plaintiff
seeks. Dkt. No. 75 at 5 & Ex. 2. Makinson’s representation is made to this court in a signed, sworn
filing. Those materials, to the extent they exist, are in the possession and control of the Okmulgee
County Sheriff’s Department, which, on review of Plaintiff’s discovery requests, it appears
Plaintiff understands. Dkt. No 75 at Ex. 2.3 Had Plaintiff conferred with Makinson in advance of
filing his motion to compel, as required by law and local rule, perhaps he would have realized the
impropriety of seeking the materials directly from Makinson.
To the extent the materials Plaintiff seeks are relevant and in fact exist, they are not out of
Plaintiff’s reach through other discovery mechanisms.4 However, regardless of how Plaintiff may
or may not elect to proceed, this court will not compel Defendant Makinson to produce documents
that are not in Defendant’s possession or subject to his control.
CONCLUSION
For the reasons set forth above, Defendant Makinson’s Motion to Strike Plaintiff’s Reply
Brief [Dkt. No. 78] is GRANTED and Plaintiff’s Motion to Compel Discovery from Defendant
Makinson [Dkt. No. 72] is DENIED.
3 Plaintiff’s discovery requests explicitly refer to the Okmulgee County Sheriff’s “Department” or
“Criminal Justice Center” in five of the seven requests to Makinson, not including his request for
dash- and body-cam footage that is presumably in that office’s possession and control.
4 See, e.g., FED. R. C IV. P. 45.
6:21-cv-00231-FAB-GLJ Document 87 Filed in ED/OK on 06/14/23 Page 5 of 6

6
IT IS SO ORDERED this 14 th day of June, 2023.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
6:21-cv-00231-FAB-GLJ Document 87 Filed in ED/OK on 06/14/23 Page 6 of 6