Wallace v. Warner et al
ORDER granting in part 50 MOTION to Compel filed by Byron L Wallace. Defendants must, on or before 1/21/2014, file a Supplemental Response and the sealed exhibits mentioned in this Order. The discovery deadline is extended until 2/21/2014 and the dispositive motion deadline until 3/21/2014. Signed by Magistrate Judge J. Thomas Ray on 01/08/2014. Signed by Magistrate Judge J. Thomas Ray on 01/08/2013. (kcs)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BYRON L. WALLACE,
Cummins Unit, ADC, et al.
Plaintiff, Byron L. Wallace, has filed this pro se § 1983 action alleging that
Defendants violated his constitutional rights in connection with a November 28, 2012
fight he had with his cell mate, Timothy Davis.1 Plaintiff has filed a Motion to Compel
Defendants to further respond to his November 6, 2013 Requests for Production of
Documents. Doc. 50. Defendants have filed a Response. Doc. 51. Each discovery
dispute will be addressed separately.
Specifically, Plaintiff alleges that Defendants: (1) failed to promptly stop the attack and
prevent Davis from stabbing Plaintiff with a shank; (2) used excessive force by spraying him with
pepper spray; (3) violated his equal protection rights by spraying him, but not Davis, with pepper
spray; and (4) subjected him to cruel and unusual punishment by preventing him from showering
to remove the pepper spray from his body.
Request for Production 1
Plaintiff asked Defendants to produce copies of his medical records regarding
the injuries he received in the November 28, 2012 fight. Doc. 51, Ex.1. Defendants
correctly objected to that request because legitimate security concerns prevent inmates
from possessing such documents while in prison. Instead, Defendants have agreed to
allow Plaintiff to review his medical records and take notes.
If Defendants later file a Motion for Summary Judgment, Plaintiff can ask them
for copies of his relevant medical records that have not been attached to Defendants'
Motion. If Defendants do not provide such copies, Plaintiff should promptly refile his
Motion to Compel to obtain copies of those documents.
Finally, if this case proceeds to trial, the Court will order Defendants to bring
Plaintiff’s complete medical file to Court so that he will have access to all of those
In Request for Production 1, Plaintiff also asked Defendants to produce a copy
of the ADC Administrative Regulation regarding the use of chemical agents. Doc. 51,
Ex. 1. Defendants informed Plaintiff that the relevant policy was Administrative
Regulation 410, and that he could obtain a copy from the prison law library. Id.
Plaintiff does not allege that he was unable to obtain a copy of the regulation or that
it was unresponsive to his discovery request. Accordingly, the Motion to Compel is
denied as to Request for Production 1.
Request for Production 2
Plaintiff asked Defendants to produce any surveillance videos of the November
28, 2012 incident. Defendants explain that they have a copy of the surveillance video.
Doc. 51. However, legitimate security concerns prevent Plaintiff from possessing a
copy while he is in prison. Instead, Defendants agreed to allow Plaintiff to review the
video prior to trial, and to preserve the recording for use at trial. The Court finds
Defendants response appropriate, with two caveats. First, if Defendants file a Motion
for Summary Judgment, they must allow Plaintiff to review the video at least two
weeks before his Response to that motion is due. Second, Defendants must file,
within fourteen days of the date of this Order, a sealed copy of that video so that
the Court can insure that it will be available for use at trial.
In Request for Production 2, Plaintiff also asked Defendants to produce the
shank Davis used during the November 28, 2012 fight. Doc. 51, Ex. 1. Defendants
state that they “believe” the shank has been destroyed. Doc. 51 at 5. Within fourteen
days, Defendants must file a Supplemental Response that: (1) definitively states
whether, in fact, the shank has been destroyed, and if so, the date of its destruction;
and (2) explains why the shank was destroyed; who destroyed it; and whether it was
destroyed pursuant to an ADC policy and if so, identify the policy. If the shank has
not been destroyed, Defendants must insure that it will be preserved for trial.
Defendants admit that they have a photograph of the shank, which is being
preserved for use at trial. The Court agrees that legitimate security concerns prevent
Plaintiff from possessing a copy of that photograph or seeing it while he is in prison.
However, if this case proceeds to trial, Defendants must provide Plaintiff and his
attorney with a copy of that photograph.
Davis’s Medical Records and AR-005 Incident Reports.
In his Motion to Compel, Plaintiff asks the Court to require Defendants to
produce medical records of the injuries Davis sustained during the November 28, 2012
fight and any AR-005 Incident Reports prepared about the incident. Plaintiff’s
Motion to Compel is premature because he has not previously sought those materials
from Defendants. Doc. 51. Before filing a Motion to Compel, Plaintiff must mail
Defendants’ attorney discovery requests seeking those specific materials, and give
them thirty days to mail him their responses and/or objections.
It is likely that legitimate security concerns will prevent Plaintiff from
possessing or reviewing Davis’s medical records. Thus, Plaintiff should consider
sending Defendants an Interrogatory asking for a detailed description of all of the
injuries Davis suffered during the November 28, 2012 incident. Only after Plaintiff
has received a Response to his written discovery will he be in a position to file a
Motion to Compel, if he deems that Response to be inadequate or otherwise defective.
IT IS THEREFORE ORDERED THAT:
Plaintiff’s Motion to Compel (Doc. 50) is GRANTED IN PART.
Defendants must, on or before January 21, 2014, file a Supplemental
Response and the sealed exhibits mentioned in this Order.
The discovery deadline is extended until February 21, 2014, and the
dispositive motion deadline is extended until March 21, 2014.
Dated this 8th day of January, 2014.
UNITED STATES MAGISTRATE JUDGE
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