Marshall v. Walker et al

Filing 84

ORDER denying 80 Motion to Compel. Signed by Magistrate Judge Jerome T. Kearney on 2/7/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CALVIN LEE MARSHALL,
ADC #90207
v.

PLAINTIFF

5:11-cv-00239-BSM-JTK

REVONNA WALKER, et al.

DEFENDANTS
ORDER

This matter is before the Court on Plaintiff’s Motion to Compel (Doc. No. 80). Defendants
filed a Response in opposition to the Motion (Doc. No. 83).
In support of his Motion, Plaintiff states that after finding some of Defendants’ responses to
his discovery requests to be incomplete, he attempted to resolve the situation by writing them a letter
identifying the deficiencies. He states Defendants have since failed to respond to his request for
supplementation.
Defendants state, however, that although Plaintiff dated the letter sent to them on December
27, 2012, it was not mailed until January 17, 2013, after he signed and mailed the present Motion
to Compel (Doc. No. 83-2, pp. 6-7). Therefore, Defendants state Plaintiff failed to comply with
FED.R.CIV.P. 37.1, and his Motion should be denied.
The Court finds that Plaintiff failed to comply with Rule 37.1 by attempting to resolve the
dispute prior to the filing of his Motion to Compel. At this time, however, the Court will address
the disputes raised by Plaintiff and Defendants’ response. The Court will not address any future
motions to compel absent clear and convincing evidence of compliance with Rule 37.1.
1.

Interrogatory No. 11 - Plaintiff asked whether Defendants’ decisions to “revoke” an

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Plaintiff does not specifically address these in his Motion, but did raise them in his letter
to Defendants.
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inmate level is based on disciplinary findings of guilt. Defendants responded that the committee
takes those findings into account but does not base their decisions solely on those findings.
Defendants are uncertain about Plaintiff’s objection to their response.
Since Plaintiff does not explain in his Motion why he objects to Defendants’ response, and
since it appears to the Court that Defendants adequately responded to the interrogatory, the Court
will deny Plaintiff’s Motion as to this request.
2.

Interrogatory No. 3 - Plaintiff asked about an established written appeal process for

inmates to appeal their initial assignment to the incentive level program and subsequent decisions
with respect to promotions/demotions. Defendants responded in the affirmative, stating that an
inmate may appeal such decisions to the Chief Deputy Director within fifteen days of receiving a
copy of the decision.
Defendants appropriately responded to this interrogatory. Plaintiff’s Motion is denied.
3.

Interrogatory No. 4 - Plaintiff asked if days which are lost as a result of disciplinary

convictions can be retrieved. Defendants responded that the behavior control program does not
award days and that no procedure provides for altering a participant’s level in the program.
Defendants appropriately responded to this interrogatory. Plaintiff’s Motion is denied.
4.

Interrogatory No. 5 - Plaintiff asked for the names, telephone numbers and addresses

of the persons who wrote AD #08-41 and 08-87. Defendants responded that policies are reviewed
and approved by the Policy Committee and Management Team, and thereafter identified the
members of the team by name, work address and work telephone number.
Defendants appropriately responded to this interrogatory. Plaintiff’s Motion is denied.
5.

Production Request Nos. 1 and 2 - Plaintiff asked for a list of duties set forth in job

descriptions or other documents and a copy of those documents. Defendants objected based on
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security concerns. Plaintiff does not specifically address this request in his Motion, and did not
indicate to Defendants his need for such information. Therefore, Plaintiff’s Motion is denied.
6.

Production Request No. 3 - Plaintiff asked for copies of Mental Health Regulation

manuals, Handbooks, Protocols, and Post Orders governing the responsibilities of ADC mental
health personnel. Defendants objected, based on the fact that they are not mental health personnel,
and also as irrelevant, since Plaintiff’s claim in this action pertains to his assignment to the incentive
level program and not to his mental health treatment. Plaintiff states that such information is
relevant to his claims, but does not include an explanation in his Motion. Therefore, the Motion is
denied.
7.

Production Request No. 4 - Plaintiff asked for copies of psychological/psychiatric

assessments conducted on him while in segregation. Defendants objected, stating that inmates are
not provided with copies of their mental health records, for security reasons. They also state that
Plaintiff may submit a request to schedule an appointment to review his records and make
appropriate notes. Plaintiff states that these documents will show that he does not pose a threat to
the institution or others, but he does not state that he has not been able to review his records. The
Court agrees with Defendants and finds the Motion should be denied.
8.

Production Request No. 5 - Plaintiff asked for copies of classification manuals,

handbooks, protocols, and post orders governing the responsibilities of ADC classification
personnel. Defendants objected as overly burdensome, vague, ambiguous and irrelevant to
Plaintiff’s claims. They do, however, submit a list of ADC policies which are available for review
in the prison law library, and attached copies of administrative directives which pertain to class
promotion and status. They also state that Plaintiff has been provided with a copy of inmate
handbooks regarding ADC incarceration and the incentive level program. Plaintiff does not explain
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his need for all policies or explain how Defendants’ response is inadequate. Therefore, his Motion
is denied.
9.

Production Request No. 6 - Plaintiff asked for written copies of Warden decisions

concurring with the recommendations to retain him in segregation. Defendants provided typed
versions of records reflecting classification committee review meetings. Plaintiff does not indicate
why these records are insufficient, but Defendants agree to provide the identical hand-written
records. Therefore, the Motion is denied.
10.

Request for Production No. 7 - Plaintiff asked for copies of the classification

committee action sheets and segregation review results from June, 2002, until August, 2005.
Defendants provided documents in response to this request and Plaintiff does not indicate why their
response is inadequate. Therefore, the Motion is denied.
11.

Request for Production No. 8 - Plaintiff asked for a list of the number of inmates

released from segregation within the past twenty-four years with the same or similar disciplinary
infractions as Plaintiff. Defendants object as overly broad, burdensome and irrelevant to Plaintiff’s
claim that they unconstitutionally prohibited visitation privileges with his wife. They also state the
ADC does not maintain statistical records in the manner requested by Plaintiff, and should not be
required to review individual records for each inmate over the past twenty-four years. Plaintiff does
not explain his need for such information, and therefore, his Motion is denied.
12.

Request for Production No. 9 - Plaintiff asked for the number of inmates who were

permitted out-of-cell job assignments, permitted to visit the gym and yard call, and participate in
group counseling sessions after achieving incentive level 4. Defendants object on the same basis
as the previous request. Plaintiff provides no explanation and therefore, his Motion is denied.
13.

Request for Production No. 10 - Plaintiff asked for a list of names of inmates who
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returned to general population after completing the incentive level program. Defendants again
object for the same reasons as in request number 8, and also for security reasons. Plaintiff provides
no further explanation for such information and his Motion is denied.
14.

Request for Production No. 11 - Plaintiff asked for the number of inmates who are

currently class status 4 and housed in general population at several ADC units. Defendants
responded by providing such information; therefore, Plaintiff’s Motion is denied. Accordingly,
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Compel (Doc. No. 80) is
DENIED.
IT IS SO ORDERED this 7th day of February, 2013.

______________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

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