Berger v. Outlaw et al

Filing 30

ORDER granting Motion to Compel 25 , with respect to his request for a list of the books in the Maximum Security Unit library and denied in all other respects. Defts are directed to forward to Pltf a copy of his request within 10 days of the date of this Order. Signed by Magistrate Judge Jerome T. Kearney on 1/27/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RUSSELL BERGER,
ADC #115855
v.

PLAINTIFF
5:11-cv-00171-JLH-JTK

STEVE OUTLAW, et al.

DEFENDANTS
ORDER

This matter is before the Court on Plaintiff’s Motion to Compel (Doc. No. 25). Defendants
filed a Response in opposition to the Motion (Doc. No. 29).
Plaintiff is a state inmate incarcerated at the Maximum Security Unit of the Arkansas
Department of Correction (ADC). He filed this action pursuant to 42 U.S.C. § 1983, alleging several
constitutional violations by the Defendants (Doc. No. 2). By Order dated November 1, 2011, the
Court narrowed the allegations of Plaintiff’s Complaint to his claim that Defendants confiscated
certain publications from him in violation of his First Amendment rights (Doc. No. 18).
In the present Motion, Plaintiff complains about Defendants’ objections to five requests for
production of documents. The Court will address each of these requests as follows:
1)

Plaintiff’s request for a list of books reviewed by the ADC and the status of those

books, concerning Plaintiff. Plaintiff states this request is relevant to showing a pattern of abuse by
the Defendants with respect to Plaintiff. Defendants object as not relevant to the issue raised by
Plaintiff, that AR864 and AD09-44 (ADC policies and procedures) are unconstitutional as applied
to the three books listed in his Complaint.
In Plaintiff’s Complaint, he alleges that the two policies mentioned above are constitutionally
invalid, as applied to reject the three books mentioned in his Complaint. Plaintiff does not allege

1

a pattern or practice of abuse by Defendants as directed to Plaintiff. Therefore, the Court finds that
Plaintiff’s request is not relevant to the issues raised in his Complaint.
2)

Plaintiff’s request for a list of all books currently on inventory in the Maximum

Security library. Plaintiff states this is relevant and easily obtainable. He states the list will show
that Defendants promote, through the library, books with heterosexual sexual content but no books
with homosexual content. Defendants object as irrelevant.
The Court finds persuasive Plaintiff’s argument that the requested list is relevant to his claim
that the policies are unconstitutional as applied to his particular requests for books. He also states
that the list is easily obtainable, and Defendants do not dispute this assertion or object on that basis.
Therefore, the Court finds that Plaintiff’s Motion should be granted with respect to this request.
3)

Plaintiff’s request for a copy of the books that were rejected. Defendants object on

the basis that they previously prohibited Plaintiff from possessing those books, and state they will
preserve the books for in camera review or for any future court proceeding.
The Court agrees with the Defendants and finds that this request should be denied.
4)

Plaintiff’s request for a description of the offending text and other relevant material

in the rejected books. Defendants state that they have provided some of this information through
the attachments to the discovery requests.
The Court has reviewed the attachments provided by the Defendants, which include the
Publications Committee decisions and memos they sent to Plaintiff, together with Plaintiff’s
grievances and responses. The Court finds that these documents satisfy Plaintiff’s requests.
5)

Plaintiff’s request for a list of all books reviewed by the Defendants in the past year.

Plaintiff has modified this request in his present motion to apply to books reviewed by the
Defendants in the past year at the Maximum Security Unit. Defendants object as not relevant to the
2

issues raised in his Complaint.
The Court again agrees with the Defendants, for the reasons set forth with respect to
Plaintiff’s first request, above. The issues raised in Plaintiff’s Complaint relate to the application
of the policies to the three books named in his Complaint, and do not include allegations of a pattern
of unconstitutionality. Therefore, the Court will deny this request. Accordingly,
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Compel (Doc. No. 25) is
GRANTED in part, with respect to his request for a list of the books in the Maximum Security Unit
library, and DENIED in all other respects.
Defendants are directed to forward to Plaintiff a copy of his request within ten days of the
date of this Order.
IT IS SO ORDERED this 27th day of January, 2012.

______________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

3