Cotton v. Campbell et al
MEMORANDUM ORDER: 1. Plaintiff's Motion for Injunctive Relief (D.I. 52 ) is DENIED. 2. Plaintiff's Motion to Compel (D.I. 53 ) is GRANTED in part and DENIED in part. Defendants shall produce Plaintiff's medical records and any excess ive force disciplinary records for any of the named Defendants before June 3, 2016. 3. Plaintiff's Motion to take oral depositions (D.I. 64 ) is GRANTED. 4. Plaintiff's Motion in Limine (D.I. 67 ) is DISMISSED as premature without prejudice to renew. Plaintiff's Motion for Initial Discovery (D.I. 70 ) is DISMISSED as moot.( Notice of Compliance due by 6/3/2016.) Signed by Judge Richard G. Andrews on 5/9/2016. (klc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
: Civ. No. 14-596-RGA
EWONNA CAMPBELL, et al.,
At Wilmington, this
_j_ day of May, 2016, having considered Plaintiff's motions
(D.I. 52, 53, 64, 67, 70),
IT IS HEREBY ORDERED, as follows:
Plaintiff David Cotton was incarcerated at the Howard R. Young .Correctional
Institution ("HRYCI"), Wilmington, Delaware, when he commenced this action on May
12, 2014, pursuant to 42 U.S.C. § 1983. He is currently housed at the James T.
Vaughn Correctional Center ("VCC"), Smyrna, Delaware. He has sued seven
correctional officers on claims related to the use of excessive force on February 22,
2014. (D.I. 14). Before the Court are several motions filed by Plaintiff. (D.I. 52, 53, 64,
On January 4, 2016, Plaintiff filed a letter/motion construed as a motion for
injunctive relief and complains that he is being retaliated against for filing this lawsuit.
(D.I. 52). He seeks transfer to another institution. Defendants oppose the motion.
A preliminary injunction is "an extraordinary remedy that should be granted only
if: (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable
harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the
defendant; and (4) granting the injunction is i.n the public interest." Nutrasweet Co. v.
Vit-Mar Enterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999). "[F]ailure to establish any
element in [a plaintiff's] favor renders a preliminary injunction inappropriate." Id.
Furthermore, because of the intractable problems of prison administration, a request for
injunctive relief in the prison context must be viewed with considerable caution. Rush v.
Correctional Med. Services, Inc., 287 F. App'x 142, 144 (3d Cir. 2008) (citing Goff v.
Harper, 60 F.3d 518, 520 (8th Cir. 1995)).
Plaintiff states he is subject to retaliation consisting of tampering with his legal
mail, freezing his prison trust account, decreasing his food, denying recreation, and
-impeding his ability to submit grievances because he commenced this lawsuit. He
seeks a transfer to another jail because he fears for his life.
Defendants advise that: (1) problems with Plaintiff's mail occurred because he
failed to inform the Court of his transfer from the HRYCI to the VCC; (2) because
Plaintiff has outstanding obligations to the HRYCI, when funds become available in his
trust account at the VCC, the funds are transferred to the HRYCI to satisfy the existing
debt; (3) they found no grievances or complaints to substantiate Plaintiff's complaints
a decrease in food; and (4) Plaintiff has filed numerous grievances.
Upon review of the allegations made by Plaintiff, the Court concludes that he has
not demonstrated the likelihood of success on the merits. Notably, with regard to a
transfer to a different jail, the Delaware Supreme Court has recognized that prison
officials have discretion to house inmates at the facilities they choose. Walls v. Taylor,
856 A.2d 1067, 2004 WL 906550 (Del. Apr. 26, 2004) (table) (citing Brathwaite v. State,
No. 169, 2003 (Del. Dec. 29, 2003). Furthermore, the United States Supreme Court
has held that an inmate has no due process right to be incarcerated in a particular
institution whether it be inside the state of conviction, or outside that state. Olim v.
Wakinekona, 461 U.S. 238, 251 (1983). Finally, granting injunctive relief is in
contravention of the public's interest in the effective and orderly operation of its prison
system. Carrigan v. State of Delaware, 957 F. Supp. 1376, 1385 (D. Del. 1997).
Therefore, the court DENIES the motion.
Motion to Compel/Discovery
On January 7, 2016, Plaintiff filed a motion to compel, and on April 4, 2016, he
filed a second motion for initial discovery. (D.I. 53, 70).
Pursuant to Fed. R. Civ. P. 26:
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. Civ. P. 26(b)(1 ).
On September 24, 2015, Plaintiff served Defendants with a request for
production of documents (D.I. 46), and Defendants responded to the request on
December 23, 2015 (D.I. 50). Plaintiff moves to compel responses to Request Nos. 1,
2, 5, 6, 7, 8, 9, and 10.
Request No. 1 seeks February 22, 2014 security camera recordings and Quick
Response Team ("QRT") video recordings from a hand held camcorder, made during
the incident that forms the basis of this lawsuit. 1 Defendants responded that there are
no security camera or QRT camcorder recordings of the incident. Plaintiff seeks to
compel production of the recordings on the grounds that Defendants are lying when
they state that recordings do not exist. He points to the disciplinary report issued on as
a result of the February 22, 2014 incident that states, "video and pictures are secured in
Capt. quarters." (D.L 53, ex.).
Defendants acknowledge there were video recordings and explain that after the
tapes were reviewed, and it was determined there was no relevant information, the tape
was used again and taped over. Defendants state that the video only captured the
shakedown of Plaintiff's cell (where no contraband was found) and this occurred prior to
the February 22, 2014 altercation. Defendants further state that there is no video
recording of the altercation that occurred inside the interview room. Finally, Defendants
advise that the ORT did not videotape its escort of Plaintiff as the escort was routine in
_nature. Defendants cannot produce what does not exist. Therefore, the motion to
compel Request No. 1 is DENIED.
Request No. 2 seeks all typed, handwritten, original or copies of incident reports
made by DOC staff and any witnesses. Defendants raised several objections in
Plaintiff was provided with photographs taken at the time of the incident.
response to Request No. 2. Plaintiff moves to compel on the grounds that he was
denied all typed, handwritten, original, or copies of incident reports made by DOC staff
and witnesses. In response to the motion, Defendants acknowledge that, as of March
31, 2016, all reports requested have been produced to Plaintiff. (See D.I. 68).
Therefore, the Court DENIES as moot the motion to compel Request No. 2.
Request No. 5 seeks copies of logbook, attendance of Delaware Department of
Correction ("DOC") staff on duty, names, etc. on day of the incident. Defendants object
on the grounds that the request is irrelevant, immaterial, overly broad, unduly
burdensome, and onerous, seeks information that is confidential and privileged
pursuant to 11 Del. C. § 4322, 2 and seeks information that cannot be produced due to
security concerns vis-a-vis staffing of the facility. Plaintiff asks the Court to "bypass" the
objection that the request is burdensome because Defendants have not demonstrated
why the request is burdensome.
Defendants' objections are SUSTAINED based upon 11 Del. C. § 4322 and
security concerns of the HRYCI. In addition, Defendants advise that they have
The relevant parts of the statute provide as follows:
(c) No inmate shall be provided a copy of the Department of Correction
Policy and Procedures Manuals, The Bureau of Prisons Policy and
Procedures Manuals, nor any of the Department of Correction Facilities
Operational Procedures, Administrative Regulations and Post Orders.
(d) The Department of Correction Policies and Procedures, including any
Policy, Procedure, Post Order, Facility Operational Procedure or
Administrative Regulation adopted by a Bureau, facility or department of
the Department of Correction shall be confidential, and not subject to
disclosure except upon the written authority of the Commissioner. 11 Del.
C. § 4322 (c) & (d).
identified for Plaintiff all staff on duty on the time, date, and tier, and provided incident
reports detailing the level and nature of staff involvement in this case.
Request No. 6 seeks all medical reports and all reports about the incident
written or typed by medical personnel. Defendants respond that they are not in .
possession of Plaintiff's medical records and that the records, should they exist, are
maintained separate and apart from the rest of Plaintiff's institutional file and are
maintained and in the sole possession/custody of the Delaware Depprtment of
Correction's contract medical vendor and its records custodian. Defendants indicate
that they have attempted to obtain the records informally and have been advised that
no such documents exist.
The Court takes judicial notice that the DOC enters into healthcare contracts with
healthcare service providers to provide medical care to inmates, such as Plaintiff, who
are incarcerated within the DOC. While Plaintiff's medical records may not be in
Defendants' possession, by reason of its contractual relationships between the DOC
and its medical service providers, the Court determines that Plaintiff's medical records
are under the DO C's legal control. 3 See In re Grand Jury, 705 F .3d 133, 147 (3d Cir.
2012) (the test for the production of documents is control, not location); see also
Searock v. Stripling, 736 F .2d 650 (11th Cir. 1984) (defining "control" as the legal right
to obtain documents upon demand). Given that Plaintiff's medical records are under
I don't think Defendants say otherwise. Defendants say, "such records are not
as readily obtainable as Plaintiff ... contends." (D.I. 72 at 7). That implies to me that
Defendants can produce the records.
Defendants' .control, the Court GRANtS the motion to compel Request No. 6 to the
extent that Plaintiff's medical records relative to the February 22, 2014 incident exist.
Request No. 7 requests copies of all rules, regulations, and policies regarding
the duties perform by the QRT during codes called when the QRT responds to a call for
action. Defendants object on the grounds that the request is irrelevant, immaterial,
overly broad, unduly burdensome, and onerous, seeks information that is confidential
and privileged pursuant to 11 Del. C. § 4322, and seeks information that cannot be
produced due to security concerns vis-a-vis staffing of the facility.
Defendants' objections are SUSTAINED based upon 11 Del. C. § 4322 and
security concerns of the HRYCI. The motion to compel Request No. 7 is DENIED. In
addition, Defendants note that there is no videographic recording of actions taken by
· the QRT because the situation had resolved by the time the QRT arrived.
Request No. 8 seeks records of all Defendants (such as all grievances filed
against them), copies of job performance, job performance records, etc. Defendants
object on the grounds that Request No. 8 is irrelevant, immaterial, vague, overly broad,
unduly burdensome, onerous, and wholly unrelated to the instant case or the claims set
forth and remaining therein, that the information sought is confidential and privileged
pursuant to 11 Del. C. § 4322, and on the grounds of privacy. While objecting,
Defendants produced grievances filed by Plaintiff that appear to be related to the
alleged incident that forms the basis of this lawsuit.
The Court finds Defendants' response to Request No. 8 adequate and
SUSTAINS the objections to Request No. 8 as it is overly broad and unduly
However, if any named Defendant has been disciplined within the last
five years for the use of excessive force, I think that is something that should be
produced, and the Defendants are ORDERED to do so.
Request No. 9 seeks all rules and regulations and policies of HRYCI concerning
the treatment of prisoners. Defendants object on the grounds that the documents
contain confidential and privileged information pursuant to 11 Del. C. § 4322. Despite
the objections, Defendants produced a copy of the inmate housing rules at the HRYCI,
the inmate handbook provided to HRYCI inmates, which contains appropriate policy
statements regarding treatment of inmates housed at HRYCI, and the HRYCI SOP
The Court finds Defendants' response to Request No. 9 adequate and
SUSTAINS the objections to Request No. 9.
Request No. 10 seeks copies of witness statements. Defendants initially
objected to this request. They have since advised, however, that they have produced
the requested incident reports and witness statements. In addition, Defendants
addressed Plaintiff's concerns regarding potential witness inmate Sumpter by providing
the affidavit of Lt. Kenneth McMillan who refutes Plaintiff's belief that Sumpter
witnessed the events that form the basis of this complaint.
Therefore, the Court DENIES Plaintiff's motion to compel Request No. 10.
Finally, Plaintiff filed a motion for initial discovery. (D.I. 70). The motion reads as
a motion to compel and seeks the same relief as in the motion to compel found at
Plaintiff alleges unprovoked and repeated punching, kicking, and macing while
he was shackled. (D.I. 14 at 1-2). Other
Docket Item 53 that is addressed in detail hereinabove. Therefore, the Court
DISMISSES as moot the motion for initial discovery.
Plaintiff moves to depose Defendants Ewonna Campbell ("Campbell"), Allen
Harris ("Harris"), King Ayala ("Ayala"), Gregory Esposito ("Esposito"), Stephen Brackett
·("Brackett"), and Joseph Loy ("Loy'') regarding the February 22, 2014 incident. (D.I. 64).
In addition, Plaintiff would like: (1) defense counsel provide two tape recorders so that
there will be two copies of the taped depositions; (2) the depositions held before an
"officer" such as a notary public; (3) the depositions taken one-by-one and not as a
group; (4) the taped depositions filed with the court; (5) the depositions conducted in a
quiet room; (5) the presence of only Plaintiff, the deponent, and the court officer during
the deposition; (6) an order for Plaintiff to listen to the depositions on a tape player
provided by prison staff; and (7) a copy of the taped depositions.
Plaintiff is responsible for his own costs in prosecuting his case, ·including the
costs of discovery and assembling the facts. The law is well-settled that pro se litigants
must pay for the expenses involved in their civil actions, even when proceeding in forma
pauperis. See Victor v. Lawler, 2010 WL 2326248, *3-4 (M.D. Pa. June 2, 2010).
"There is no provision for the payment by the government of the costs of deposition
transcripts, or any other litigation expenses, and no other statute authorizes courts to
commit federal monies for payment of the necessary expenses in a civil suit brought by
an indigent litigant." Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993); see also Ballard
v. Williams, 2013 WL 5291109, *4 (M.D. Pa. 2013) (finding that indigent plaintiff is
responsible for payment of own discovery expenses); see also Hodge v. United States,
2009 WL 2843332, *4-*5 (M.D. Pa. 2009) (in forma pauperis plaintiffs, including prose
inmates, are responsible for their litigation fees in civil actions); Tabron v. Grace, 6 F.3d
at 159 (3d Cir. 1993) (court had no authority to pay for plaintiff's deposition transcript).
For these reasons, the instant motion is GRANTED, but only to the extent that Plaintiff
is free to conduct depositions of the above-listed Defendants to the extent he has the
financial ability to do so. Any arrangement with respect to the scheduling of depositions
and/or payment of the stenographer is Plaintiff's responsibility.
Motion in Limine
Plaintiff moves the Court to preclude Defendants' use of his disciplinary history in
evidence as a motive to justify Defendants' actions. (D.I. 67). The motion is
DISMISSED as premature without prejudice to renew.
Plaintiff's letter/motion for injunctive relief (D.I. 52) is DENIED.
Plaintiff's motion to compel (D.I. 53) is GRANTED in part and DENIED in
part. Defendants shall produce Plaintiff's medical records and any excessive force
disciplinary records for any of the named Defendants before June 3, 2016.
Plaintiff's motion to take oral depositions (D.I. 64) is GRANTED only to the
extent that Plaintiff is free to conduct Defendants' depositions to the extent he has the
financial ability to do so.
Plaintiff's motion in limine (D.I. 67) is DISMISSED as premature without
prejudice to renew.
Plaintiff's motion for initial discovery (D.I. 70) is DISMISSED as moot.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?