Evans v. Hardy et al

Filing 95

ORDER granting in part, 70 Plaintiff's Second Motion to Compel; granting in part, 88 Plaintiff's Fifth Motion to Compel; denying 91 Plaintiff's Motion for Sanctions. Signed by Magistrate Judge J. Thomas Ray on 10/23/2012. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

MARCUS D. EVANS,
ADC #109369
V.

PLAINTIFF
2:11CV00235 DPM/JTR

SHANTA HARDY, Officer,
East Arkansas Regional Unit, et al.

DEFENDANTS

ORDER
Plaintiff, Marcus D. Evans, alleges that, on June 1, 2009, Defendants used
excessive force against him in the East Arkansas Regional Unit. See docket entry #1.
Plaintiff has filed three discovery Motions, which the Court will address separately.
I. Plaintiff’s Second Motion to Compel
On July 30, 2012, Plaintiff filed a Second Motion to Compel asking the Court
to require Defendants Shanty Hardy and Derrick Mullins to produce medical records
documenting the care they received for the injuries they sustained in the June 1, 2009
altercation with Plaintiff. See docket entry #70. Defendants Hardy and Mullins argued
that unspecified security concerns prevented them from releasing those medical
records to Plaintiff. See docket entry #71. On August 21, 2012, the Court ordered

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Defendants Hardy and Mullins to file a sealed Supplemental Brief: (1) explaining the
specific security concerns actually arising from the release of the requested
documents; and (2) identifying the specific portions of those medical records that they
believe should be redacted to alleviate those security concerns. See docket entry #78.
Defendants have timely done so. See docket entry #89.
The sealed medical records1 reveal that, on June 1, 2009:
(1)

Defendant Hardy went to the EARU infirmary, where medical providers
noted slight swelling around her left eye without any discoloration. She
did not receive any treatment for that injury.

(2)

Defendant Mullins went to the EARU infirmary for pain and numbness
in his third and fourth fingers on his right hand and wrist. Later that
day, Defendant Mullins went to the Forrest City Medical Center, where
an x-ray of his right hand and wrist revealed no significant injuries.
Defendant Mullins was given a finger splint and tylenol for pain.

In their sealed Supplemental Response, Defendants Mullins and Hardy argue
that allowing an inmate to posses a prison officer’s medical records “could prove
extremely dangerous, leading to attacks targeted at an officer’s physical
1

As they were produced to the Court, all personal and confidential information
(such as phone numbers, social security numbers, addresses, etc.) have already been
redacted from these records.
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vulnerabilities, blackmail attempts, and increased inmate verbal and psychological
harassment of employees.” See docket entry #89 at 2. Of course, the validity of this
argument hinges entirely on the nature and extent of the officer’s injuries. In this case,
because neither Defendant suffered injuries of any consequence, those injuries could
not be used to target “physical vulnerabilities.” For the same reason, it is far fetched
to suggest that revealing such minor injuries to a prisoner could result in “blackmail”
or “verbal and psychological harassment.”
Thus, the Plaintiff’s Second Motion to Compel is granted, and Defendants must,
within seven days of the entry of this Order, provide Plaintiff with the same
redacted copies of Defendant Hardy’s and Mullins’ June 1, 2009 medical records that
were provided to the Court.
II. Plaintiff’s Motion for Sanctions
Plaintiff has filed a Motion asking the Court to sanction Defendants Mullins
and Hardy because they failed to timely comply with the August 21, 2012 Order
directing them to file a sealed Supplemental Response. See docket entries #78 and
#91. Apparently, Plaintiff does not recall that the Court later granted Defendants
Mullins and Hardy an extension, until October 4, 2012, to file their sealed
Supplemental Response. See docket entry #80. Defendants Mullins and Hardy timely
filed their sealed Supplemental Response on October 4, 2012. See docket entry #89.
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Thus, Plaintiff’s Motion for Sanctions is denied.
III. Plaintiff’s Fifth Motion to Compel
On October 3, 2012, Plaintiff filed a Fifth Motion asking the Court to compel
Defendants to answer his outstanding discovery requests. See docket entry #88. Each
disputed discovery request will be discussed separately.
A.

Steel Metal Bar
Plaintiff asked Defendants to produce all documents describing the steel metal

bar key Defendant Hardy alleged used to hit him. As explained to Plaintiff in the
August 21, 2012 Order, Defendants do not have any such documents. See docket
entry #78. Thus, the Fifth Motion to Compel is denied as to this discovery request.
B.

Administrative Regulation 225
Plaintiff asked Defendants to produce a copy of Administrative Regulation 225,

which sets forth employee conduct standards and the ADC’s discipline policy.
Defendants correctly argue that the policy is irrelevant in this case. Specifically, §
1983 and federal case law – not the ADC’s internal policies – will determine if
Plaintiff’s constitutional rights were violated. Thus, the Fifth Motion to Compel is
denied as to this discovery request.
C.

Max B Shift Hall Desk Logs
Plaintiff has asked Defendants to produce the Max B shift hall desk logs from
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6:30 p.m. on June 1, 2009 until 6:30 a.m. on June 2, 2009. Defendants have recently
provided Plaintiff with the shift hall desk logs from 6:59 p.m. until 11:59 p.m. on June
1, 2009. See docket entry #90, attachment. However, they have not been able to locate
the shift hall desk logs from 12:00 a.m. to 6:00 a.m. on June 2, 2009. Id.
The Court cannot compel Defendants to produce documents they do not have.
Of course, Defendants have a continuing obligation to search for those records and
supplement their discovery response if they are located. Similarly, Plaintiff may cross
examine Defendants at trial about how it happened that these desk logs are now
missing.
Finally, Defendants have not explained why they have yet to produce the June
1, 2009 shift hall desk logs from 6:30p.m to 6:58 p.m. Thus, they must, within seven
days of the entry of this Order, either provide Plaintiff with that portion of the logs,
or file a Second Supplemental Response explaining why they have not done so.
D.

Defendant Faron Clemmons
Plaintiff seeks to compel Defendants to produce: “All documents answer to

complaint by Faron R. Clemmons, Case No. 2:11CV00235 DPM.” See docket entry
#88 at 2. The Fifth Motion to Compel is denied as to this nonsensical discovery
request.

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E.

Defendant McDaniel’s 005 Incident Report
Plaintiff has asked Defendants to produce Defendant McDaniel’s 005 Incident

Report on the June 1, 2009 altercation. Defendants explain that Defendant McDaniel
did not prepare any Incident Report. See docket entry #89. Additionally, they have
previously provided Plaintiff with the 005 Incident Reports prepared Defendants
Hardy, Barden, Clemmons, Moore, Cox, Mullins, and Robinson. Id. Thus, the Fifth
Motion to Compel is denied as to this discovery request.
IV. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s Second Motion to Compel (docket entry #70) is GRANTED

IN PART, as specified herein.
2.

Plaintiff’s Motion for Sanctions (docket entry #91) is DENIED.

3.

Plaintiff’s Fifth Motion to Compel (docket entry #88) is GRANTED IN

PART, as specified herein.
Dated this 23rd day of October, 2012.

UNITED STATES MAGISTRATE JUDGE

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